Between Theory and Practice: A Dilemma for the Morawetz-Wittgenstein View of Law (original) (raw)

The Concept of Law, Sixty Years On

Kritike: An Online Journal of Philosophy, 2021

In 1961, H.L.A. Hart published his seminal work The Concept of Law, introducing what eventually became the most dominant, influential, but controversial, theory of law in the twentieth century. Not only did it revolutionize the way philosophy of law was done at the time, but it continues to raise fresh problems that puzzle even linguistic, moral, and political philosophers to this very day. The objective of this paper is twofold. The first is to survey four philosophical topics that were explored in The Concept of Law and the contemporary debates that have followed in its wake, and the second is to argue that while some of Hart's ideas have successfully withstood the tests of time and later critics, other ideas have not been as successful, but not without illuminating the path that legal philosophers must traverse in the twenty-first century. The paper has been divided into four parts. Part I ("Law and Method") shall explain the importance of the "internal point-of-view" to ongoing debates between descriptive and normative jurisprudence. Part II ("Law and Morality") shall explain how the rule of recognition revived the natural law/legal positivism debate, the result of which gave rise to the inclusive/exclusive legal positivism debate in turn. Part III ("Law and Language") shall discuss how Hart's insight into the "open texture" of language has created new problems about legal interpretation. Part IV ("Law and Obligation") shall discuss Hart's "practice theory of obligation" and how it has led modern writers to justify the duty to obey the law.

The Rule of Law and Its Predicament

Ratio Juris, 2004

The purpose of this paper is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's "realist theory of interpretation." The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

LAW AND PHILOSOPHY: Selected Papers in Legal Theory

2014

Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525

Chapter 1 - The Concept of Law

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

The Concept of Law: A Wittgensteinian Approach with Some Ethnomethodological Specifications

Concepts of Law: Comparative, Jurisprudential, and Social Science Perspectives (S.P. Donlan et al., eds., Ashgate), 2014

The question "what is law" is devoid of relevance. There is no such thing as law per se. There are only ascriptive uses of normative words and expressions sharing family resemblances across languages, cultures, institutions, activities and contexts. By ascriptive, I mean that these words serve to qualify several kinds of entities, e.g. persons, actions, places and groups. As a consequence, there is no definition of law that should be looked for; one may only achieve descriptions of the surface and deep grammars of these normative "language games". Law is not an empirical reality that must be discovered; it is a conceptual issue that cannot be severed from the context of its uses. This paper is an effort at clarifying all this. It will not reveal anything new, but will help to sort out questions, avoid logical deadlocks, put issues straight, and set the proper conditions for the adequate description of normative language games at work. Centuries of definitional endeavours have not solved the question of what "law" is.

Bewitched By Language: Wittgenstein and the Practice of Law

Pepperdine Law Review, 2005

The author wishes to thank the legions of research assistants who helped on this project, including Julie Veach, Natalie Cox, Carla Kok, and Elizabeth Lowell. The author would also like to thank Donald F. Brosnan for the many helpful conversations over the years which immeasurably improved this article. Conversations with Lee Dembart and Thomas F. Patterson were also helpful beyond words. Any errors which remain are, of course, mine alone.