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Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

Introduction: New Directions in Analytic Jurisprudence

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Introduction: New Directions in Analytic Jurisprudence

Brian Leiter

Three of the four essays here (those by Coleman, Shapiro, and myself) were presented originally at a session on "New Directions in Analytic Jurisprudence" at the meeting of the Association of American Law Schools in San Francisco in January of this year. Two of the essays (those by Schauer and Shapiro) deal with substantive jurisprudential issues that have commanded and are commanding considerable attention in legal philosophy; while the other two (those by Coleman and myself) deal with methodological questions in jurisprudence, that have become increasingly important in recent years, largely due to the work of Stephen Perry.1

In "Legal Reasoning, Legal Positivism, and the Limited Domain of Law," Frederick Schauer (Harvard) enters the fray between exclusive and inclusive legal positivists, a debate that has been ignited especially by Hart's embrace, in the 1994 "Postscript" to The Concept of Law, of the inclusive (or "soft") legal positivism defended for many years by Jules Coleman, David Lyons, and Philip Soper, among others. For inclusive legal positivists, the rule of recognition is simply a social rule, so the only constraint on its content is the actual practice of officials in deciding questions about legal validity. If it happened in some society that officials employed Dworkin-style criteria, then in that society the rule of recognition would include content-based criteria of legality. Ronald Dworkin and Joseph Raz-for different reasons to be sure2-have argued that, in fact, positivism does impose a constraint on the content of a rule of recognition, namely, that it can only employ pedigree criteria of legal validity.3 Schauer calls the view of law resulting from exclusive legal positivism "the limited domain account of law" and argues that one plausible motivation for it is "that most of the legal system's participants experience law in a limited domain way, and that law appears, as a phenomenological matter...quite consistent with the limited domain account." Schauer also examines Dworkin's objections to this "limited domain" account, questioning whether or not the evidence adduced by Dworkin for the role of non-pedigreed principles in the law is not misleadingly selective.

In "The Paradoxes of Authority," Scott Shapiro (Cardozo Law School/Yeshiva University) looks at two paradoxes of authority, Robert Paul Wolff's "autonomy paradox" and a "rationality paradox" with which it is often, wrongly, conflated. Shapiro offers a reformulation of Wolff's paradox, relying on Hart's notion of reasons which are "preemptory" (they preempt deliberation about what one ought to do) and "content-independent" (they provide a reason for action independent of their content). Content-independent preemptory reasons ("CIP" reasons) are, argues Shapiro, the key to the anarchist's challenge to authority, because, according to the anarchist, the genuinely autonomous agent can not acknowledge the existence of CIP reasons. Shapiro shows how this differs from the familiar "rationality paradox" about authority: if the balance of reasons supports the action commanded by the authority, then the rational agent will perform that action, but not because it was commanded by the authority; conversely, if the balance of reasons does not support the action, then the rational agent will not perform it, despite its being commanded. Shapiro does not here set out solutions to the paradoxes, though his work on rules elsewhere points the way to an answer.4

In "Method and Theory Construction in Jurisprudence," Jules Coleman (Yale) takes up some issues about the methodology of jurisprudence, issues that are dealt with at greater length in his Clarendon Law lectures.5 In his contribution here, he is particularly concerned to rebut the claim defended by Stephen Perry-but also found, in related forms, in the work of Ronald Dworkin and, more recently, Gerald Postema6-that "any philosophical analysis of the concept of law is itself an exercise in first order political philosophy." Coleman, by contrast, defends Hart's ideal of a purely descriptive jurisprudence.

Finally, in my essay on "The Naturalistic Turn in Legal Philosophy," I take note of the peculiar fact that the methodology of jurisprudence still remains wedded to the kinds of intuition-driven and ordinary-language-based conceptual analysis that has fallen out of favor in much of philosophy in the last several decades. Post-Quine, much of philosophy has taken a "naturalistic turn,"7 and one question to ask is what legal philosophy would look like if it followed suit. My contribution here sketches just one possibility, though other possibilities are developed in greater detail in other work cited therein.

Together the four essays should give the reader a useful overview of current directions in analytic jurisprudence.

Endnotes

* Charles I. Francis Professor in Law, Professor of Philosophy, and Director of the Law & Philosophy Program, The University of Texas at Austin.

1. See esp. Stephen R. Perry, "Interpretation and Methodology in Legal Theory," in Law and Interpretation, ed. A. Marmor (Oxford: Clarendon Press, 1995).

2. For a canvassing and critical evaluation of the arguments, see my "Realism, Hard Positivism, and Conceptual Analysis," Legal Theory 4 (1998): 533-547, esp. pp. 537-544.

3. Scott Shapiro has recently offered new arguments for exclusive legal positivism, appealing to the concept of what it is to be guided by a rule; see his important paper, "On Hart's Way Out," Legal Theory 4 (1998): 469-507.

4. See, e.g., Scott J. Shapiro, "The Difference That Rules Make," in Analyzing Law: New Essays in Legal Theory, ed. B. Bix (Oxford: Clarendon Press, 1998).

5. Jules Coleman, The Practice of Principle (Oxford: Clarendon Press, 2001).

6. See, e.g., Gerald Postema, "Jurisprudence as Practical Philosophy," Legal Theory 4 (1998): 329-357.

7. On the varieties of naturalism in philosophy, see my "Naturalism and Naturalized Jurisprudence," in Analyzing Law: New Essays in Legal Theory, ed. B. Bix (Oxford: Clarendon Press, 1998).

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APA Newsletters

Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2