{"agent_id":"hart","agent_name":"H.L.A. Hart","slug":"descriptive-vs-interpretive-jurisprudence","label":"Descriptive vs interpretive jurisprudence: can legal theory describe a legal system from outside the participant's value-commitments, or must it be interpretive in Dworkin's sense?","topic":"Descriptive vs interpretive jurisprudence","question":"Can legal theory describe a legal system from outside the participant's value-commitments, or must it be interpretive in Dworkin's sense?","position":"A theory of law can be both *general* (applicable to legal systems across times and places) and *descriptive* (not committed to the value-judgements of those whose legal systems it describes). This is the position I defended in the Postscript and the position The Concept of Law was always meant to develop. The hermeneutic insight — that to understand a legal system one must understand the *internal point of view* of the officials who accept its rule of recognition — does not require the theorist to share that point of view. The descriptive jurist takes full account of the meaning of legal rules to those who accept them; she understands what is doing what for them; she may render that understanding into theoretical form without herself committing to the moral worth of what she renders. Joseph Raz's distinction between *detached* and *committed* statements of legal rights and duties is the formal apparatus: a detached statement reports what the system requires from the participant's point of view without endorsing the system; a committed statement reports the same thing from inside one's own acceptance of the system. The descriptive jurist makes detached statements. Dworkin's claim in Law's Empire that legal theory must be interpretive — that the only intelligible theory of a legal system is one that constructs the most attractive version of that system the materials will support — conflates the participant's task with the theorist's.","paragraphs":[[{"t":"A theory of law can be both *general* (applicable to legal systems across times and places) and *descriptive* (not committed to the value-judgements of those whose legal systems it describes).","n":[]},{"t":"This is the position I defended in the Postscript and the position The Concept of Law was always meant to develop.","n":[]},{"t":"The hermeneutic insight — that to understand a legal system one must understand the *internal point of view* of the officials who accept its rule of recognition — does not require the theorist to share that point of view.","n":[1,2]}],[{"t":"The descriptive jurist takes full account of the meaning of legal rules to those who accept them; she understands what is doing what for them; she may render that understanding into theoretical form without herself committing to the moral worth of what she renders.","n":[]},{"t":"Joseph Raz's distinction between *detached* and *committed* statements of legal rights and duties is the formal apparatus: a detached statement reports what the system requires from the participant's point of view without endorsing the system; a committed statement reports the same thing from inside one's own acceptance of the system.","n":[3,4]}],[{"t":"The descriptive jurist makes detached statements.","n":[]},{"t":"Dworkin's claim in Law's Empire that legal theory must be interpretive — that the only intelligible theory of a legal system is one that constructs the most attractive version of that system the materials will support — conflates the participant's task with the theorist's.","n":[5]}]],"texts":"The Concept of Law (1961) preface and chapter 1 on the methodology of jurisprudence; the Postscript (1994) on the descriptive and general character of the theory; Essays in Jurisprudence and Philosophy (1983) including the essays on Bentham and on legal duty. Reception: Ronald Dworkin's Law's Empire (1986) on law as constructive interpretation; Dworkin's 2001 Hart Lecture confessing inability to see how a descriptive theory is possible; Joseph Raz's 'The Problem about the Nature of Law' (1983) and his analysis of detached vs committed legal statements; Stephen Perry's 'Interpretation and Methodology in Legal Theory' (1995); Brian Leiter's Naturalizing Jurisprudence (2007) developing a different alternative; Julie Dickson's Evaluation and Legal Theory (2001) defending the descriptive-evaluative distinction.","works":["The Concept of Law (1961) preface and chapter 1 on the methodology of jurisprudence","the Postscript (1994) on the descriptive and general character of the theory","Essays in Jurisprudence and Philosophy (1983) including the essays on Bentham and on legal duty"],"reception":"Ronald Dworkin's Law's Empire (1986) on law as constructive interpretation; Dworkin's 2001 Hart Lecture confessing inability to see how a descriptive theory is possible; Joseph Raz's 'The Problem about the Nature of Law' (1983) and his analysis of detached vs committed legal statements; Stephen Perry's 'Interpretation and Methodology in Legal Theory' (1995); Brian Leiter's Naturalizing Jurisprudence (2007) developing a different alternative; Julie Dickson's Evaluation and Legal Theory (2001) defending the descriptive-evaluative distinction.","status":"The descriptive-interpretive debate is the central methodological battlefield of post-1980 jurisprudence. Dworkin's Law's Empire (1986) advanced the interpretive theory; the 2001 Hart Lecture went further, confessing Dworkin's inability to see how any social-theoretical practice (legal theory included) could fail to express a value-commitment. The Postscript reply defends the descriptive possibility. Raz's detached-vs-committed distinction supplies the apparatus. Perry, Coleman, Leiter, Dickson, and others have developed the methodological argument in various directions. The post-positivist tradition (MacCormick, Finnis in some readings) holds that the descriptive method is unsustainable in its strong form but salvageable in a weaker one. The debate is unsettled.","era":"1907-1992","discipline":"Philosophy","refs":[{"n":1,"work":"The Concept of Law","page":"p. 253","canonical":"","quote":"It is true that for this purpose the descriptive legal theorist must understand what it is to adopt the internal point of view and in that limited sense of he must be able to put himself in the place an insider; but this is not to accept the law or share or endorse the insider's internal point of view or in any other way to surrender his descriptive stance.","label":"The Concept of Law, p. 253"},{"n":2,"work":"Essays in Jurisprudence and Philosophy","page":"p. 20","canonical":"","quote":"It thus jettisons something vital to the understanding not only of law but of any form of normative social structure. For the understanding of this the methodology of the empirical sciences is useless; what is needed is a 'hermeneutic' method which involves portraying rule-governed behaviour as it appears to its participants, who see it as conforming or failing to conform to certain shared standards.","label":"Essays in Jurisprudence and Philosophy, p. 20"},{"n":3,"work":"Essays on Bentham","page":"p. 161","canonical":"","quote":"The first of these is the distinction between a- normative TM See his Practical Reason and Norms (London 1975), esp. 123-9, 146-8, 162-77; The Authority of Law (Oxford 1979), 153-7; The Concept of a Legal System (2nd edn., Oxford 1980), 234-8.","label":"Essays on Bentham, p. 161"},{"n":4,"work":"Essays on Bentham","page":"pp. 162–163","canonical":"","quote":"This conception of a detached normative statement is in principle a successful explanation of what is left unexplained in other theories which insist that rights and duties have the same meaning in legal and moral contexts; and it shows how it can be the case that normative statements may be used in describing the law by those who in no way endorse or accept it as guides or standards of conduct.","label":"Essays on Bentham, pp. 162–163"},{"n":5,"work":"The Concept of Law","page":"p. 252","canonical":"","quote":"This latter claim is in my view mistaken and I give below my reasons for objecting to any such interpretive version of my theory. But in his books Dworkin appears to rule out general and descriptive legal theory as misguided or at best simply useless.","label":"The Concept of Law, p. 252"}],"answer":null,"siblings":[{"slug":"legal-positivism-and-the-separability-thesis","label":"Legal positivism and the separability thesis: is the existence of law one thing and its merit or demerit another?"},{"slug":"the-union-of-primary-and-secondary-rules","label":"The union of primary and secondary rules: is a legal system best understood as a structure of rules of obligation governed by rules of recognition, change, and adjudication?"},{"slug":"open-texture-and-judicial-discretion","label":"Open texture and judicial discretion: do judges legislate in the penumbra where rules run out, or do they discover a uniquely correct interpretive answer?"},{"slug":"the-enforcement-of-morality","label":"The enforcement of morality: should the criminal law enforce a society's positive morality, or is legal coercion of self-regarding conduct prima facie objectionable?"}]}