If you have some knowledge of philosophy of law or legal theory, especially the views of our foremost legal theorists and philosophers (e.g., Hart, Dworkin, Coleman, Shapiro, Finnis, among others), the snippet immediately below may be of interest. I just finished reading one of the better treatments of H.L.A. Hart’s theory of legal positivism in a book in which I would not have suspected to find such a discussion and critique: Patrick Capps’ Human Dignity and the Foundations of International Law (Hart Publishing, 2009): 23-76. I should perhaps first note that most works about human dignity and law that I’ve found either plausible or compelling have been about dignity’s apparent axiomatic value with regard to the foundations of international legal human rights, so the scope of this argument is wider if not more difficult. Setting that argument aside for our purposes, consider the following from the conclusion of the analysis of Hart’s concept of law and its corresponding methodology (the argument that warrants this conclusion is sound and, for me, persuasive):
“… Hart advances a positivist conception which claims to be non-ambitious. This means that he attempts to draw, in a straightforward way, the analogies, commonalities and conceptual distinctions which are found in paradigm cases of law. However, Hart’s claims about the central case of law quickly become more ambitious. He wants to claim that his central case of law can be used to determine the legality of indeterminate cases of law, like international law. International law is best viewed, against the central case, as an example of a social practice which is not really law. Thus, rather than being a defeasible concept, his central case is that against which other cases of law are to be judged. Furthermore, its validity relies not on ordinary-language use, nor on the theoretical values [e.g., accuracy, clarity, elegance, explanatory power and so forth] employed by the legal scientist, but rather on the rule of recognition as a set of shared criteria about the legal validity of norms which form the content of a legal order in which the official has a role.
While it is possible to hold that such conventions exist, it requires the legal scientist to discount data which undermines the central claim about shared criteria. … [T]he legal scientist has to distinguish the important from the unimportant or the relevant from the relevant. It seems that the Hartian legal scientist who wants to sustain his idea of shared criteria at all costs, does this through various approaches (such as an error theory or an abstraction or extension strategy) which allow the shared criteria thesis to remain untouched. Fidelity to the raw data cannot be resorted to, to defend this approach, but rather it is the legal scientist who is imposing his own judgments on the raw data [as both Finnis and Dworkin, each in their own way, have argued] and sustaining them through these various strategies and theories. Equally, the resort to theoretical values [as Hart does in his Postscript to The Concept of Law] cannot solve this problem, as one cannot uses such [methodological or theoretical] values to defend the shared criteria thesis if those shared criteria do not necessarily exist in the raw data. By implication, such strategies, values and theories also sustain Hart’s conclusions about international law and are problematic for the same reasons.
This is a more general problem which is faced by all attempts to induct various strong conclusions about the nature of law from the raw data. [After Finnis, the heart of the methodological problem is as follows:] participants within a social practice adopt different understandings of its meaning, significance, point or purpose, and the raw data can be interpreted differently according to the judgments of relevance and importance made by the legal scientist. This is why Hart’s approach to conceptual analysis is question-begging.”
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