CONVENTIONALISM AND ITS CRITICS: METHODOLOGY ESSAY

Is it POSSIBLE for LEGAL THEORY to be METHODOLOGICALLY NEUTRAL? (2013)

INTRODUCTION

SUMMARY OF HART'S METHOD

ADVANTAGES TO HART'S METHOD

POINT 1: NOT POSSIBLE

POINT 2: EVEN IF WAS POSSIBLE, WOULD NOT BE OF ANY USE AS A LEGAL THEORY

POINT 3: WHEN LOOKING AT THE SUBSTANTIVE CONSEQUENCES OF HART'S THEORY, SEE THAT HIS METHODOLOGY IS FLAWED

KEY THINGS TO BEAR IN MIND:

HART'S METHOD influenced by WITTGENSTEIN and JL AUSTIN

HART

on the EXTREME EXTERNAL PoV:

C.F. HART- 'DEFINITION AND THEORY IN JURISPRUDENCE'

1 THE METHOD OF ELUCIDATION HART RECOMMENDS: LINGUISTIC PHILOSOPHY. WHY?

HART:

2. FUNDAMENTAL POINT: BENTHAM'S WARNING:

HART:

3. CRITICISMS of the TRADITIONAL METHOD (DEFINITION):

HART:

4. BENTHAM'S METHODOLOGICAL CLAIM (when not paraphrasing)

HART:

5. HART'S IMPROVEMENTS to BENTHAM'S CONDITION METHOD:

HART:

6. METHOD HART TENDERS:

HART:

7. KEY POINT HART asserts with regards the example of CORPORATIONS:

8. MACCORMICK'S CONSTRUCTIVE CRITICISM:

a) SOCIAL RULES versus HABITS

MACCORMICK:

b) HART'S FURTHER DISTINCTIONS between RULES and HABIT:

MACCORMICK:
c) SERIOUS OBJECTION TO THE CRITICAL REFLECTIVE ATTITUDE:

MACCORMICK:

d) CAPTURE DIFFERENCE THROUGH HERMENEUTIC INQUIRY-- Hart's introduction of the INTERNAL ASPECT essentially appropriate, but INCOMPLETE

MACCORMICK:

f) The INTERNAL ASPECT OF RULES RECONSIDERED

MACCORMICK:

g)THEREFORE the EXTREME EXTERNAL PoV is INADEQUATE

MACCORMICK:

h) HART UNSATISFACTORILY PASSES TOO LIGHTLY OVER THE NON-EXTREME VARIANT OF THE EXTERNAL PoV

MACCORMICK:

j)REQUIREMENTS OF THE NON-EXTREME EXTERNAL PoV:

MACCORMICK:

HART'S AVERSION TO NATURAL LAWYERS' MORALISATION OF THE LAW

MACCORMICK:

Why it is important for HART for people to maintain a CRITICAL MORAL STANCE towards the law

MACCORMICK:

HOW HART is DIFFERENTIATED from KELSEN:

MACCORMICK:

HART vs. REALISTS
(where DWORKIN'S SEMANTIC STING comes in)

MACCORMICK:

DWORKIN'S RESPONSE to HART'S DISCRETION comment

HART:

[METHODOLOGY'S LINK WITH THE SUBSTANTIVE]

LAW as a UNION of PRIMARY and SECONDARY RULES

1. line separating RULES OF OBLIGATION from others: [CONDITIONS]

HART:

2. 2 OTHER OBLIGATION CHARACTERISTICS [CONDITIONS]

HART'S POSCRIPT:

1. DWORKIN'S CENTRAL OBJECTION TO DESCRIPTIVE LEGAL THEORY

HART:

2. RESPONSE to DWORKIN'S CRITICISM OF DESCRIPTIVE THEORY

DWORKIN:

HART'S POSTRCRIPT

1. DWORKIN'S CHALLENGES

DWORKIN:

3. HART'S SOURCES THESIS

DWORKIN:

4. REJECTION of Hart's claim that both methods can co-exist

DWORKIN:

5. 2 DISAGREEMENTS between DWORKIN and HART:

DWORKIN:

6. ARCHIMEDEAN CLAIM EMBARRASSED BY 2 CONNECTED DIFFICULTIES:

DWORKIN:

7. DEFINITIONS THEMSELVES are CONTROVERSIAL

DWORKIN:

8. [SEMANTIC STING]
NEUTRAL= SEMANTIC ANALYSIS?

DWORKIN:

9. DETACHED VS INTEGRATED VALUES

DWORKIN:

10. HART'S THEORY NOT NEUTRAL IN ARGUMENT-- TAKES SIDES

DWORKIN:

11. what KIND of NEUTRAL does Hart claim?

DWORKIN:

12. therefore, HART FAILS TO BE DESCRIPTIVE IN EVERY SENSE OF WORD

FINNIS:

1. NOT GENERAL THUS NOT NEUTRAL

FINNIS:

2. POINTS out how ALL POSITIVISTS have FAILED

FINNIS:

BOTH HART AND RAZ'S POSITION= UNSTABLE AND UNSATISFACTORY

FINNIS:

MORAL= uncertain connotations. INSTEAD-- PRACTICAL REASONABLENESS

FINNIS:

CONCLUSION

PERRY:

HART'S METHODOLOGICAL POSITIVISM

PERRY:

HART DOES NOT FOLLOW EMPIRICAL METHODOLOGY-- DOESN'T HAVE THE EXPLANATORY POWER IN A SCIENTIFIC SENSE e.g. PREDICTIVE POWER. (not neutral in way he claims)

PERRY:

2. WHEN LOOKING AT THE EVUALITIVE NATURE OF THE SUBSTANTIVE, INCONSISTENT WITH CLAIM OF METHODOLOGICAL NEUTRALITY

PERRY:

3. HART's stance of SOCIAL FACT is NOT METHOD-- JUST A THESIS OF HIS SUBSTANTIVE CLAIM

PERRY:

HART SEEMS TO ADOPT HYBRID BETWEEN HERMENEUTIC INQUIRY (HOW PARTICIPANTS REGARD THEIR OWN BEHAVIOUR) AND DESCRIPTIVE-EXPLANATORY (NOT ACTUALLY TAKING PART, BUT OBSERVING) BUT, DESCRIPTION TAKES MANY FORMS