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Spring 2007
Volume 06, Number 2

Newsletter on Philosophy and Law

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Joseph Raz and Conceptual Analysis

Introduction

This article will focus on the long tradition of theorizing about the nature of law and contemporary methodological investigations relating to such theories. In particular, I will look at the role of conceptual analysis in legal theory, focusing on some recent work by Joseph Raz.1

I. Overview

It was a commonplace in the history of jurisprudence to focus on the inquiry, "What is law?" It is worth taking a few moments to consider the question more closely.

First and foremost, there is a potential confusion (heightened in English more than in other major languages2), as "law," even if focused on matters jurisprudential (and not speaking of physical laws, the laws of games, social conventions, etc.), can refer to a number of different, if related matters: most prominently, the (legal or not) status of a system of norms, the (legal or not) status of individual norms, and the determination of whether a particular norm is a member of a certain legal system (the last two are related questions, but occasionally distinct).

Coleman and Simchen list eight distinct questions within "current debates in the philosophy of law":

(1) What is law?
(2) What is a law?
(3) What is the law?
(4) What is the nature of law?
(5) What is the meaning of law?
(6) What is the concept of law?
(7) What is the meaning of the concept of law?
(8) What is the meaning of "law"? (Coleman & Simchen 2003, 5).

The question, "what is law?" may be strange enough in itself, though certainly no stranger than many of the questions central to other forms of philosophical inquiry (e.g., "What is art?" "What is knowledge?" and "What is democracy?"). What strikes the modern and philosophically minded readers as particularly odd about earlier discussions of the question, "What is law?" is that the theorists discussing the matter were willing to go on at some length without feeling any need to ground the question or characterize the nature of the inquiry. Modern writers in this area have, fortunately, become much more conscious of the underlying methodological issues (e.g., Dickson 2001, Bix 2005b, Oberdiek & Patterson 2007).

For example, a foundational figure in modern analytical legal philosophy (and the approach to legal theory known as "legal positivism") is John Austin (1790-1859). Austin made numerous claims about legal systems and legal rules (sometimes under the rubric of what is "law properly so called" and sometimes under the rubric of what did or did not fall within "the province of jurisprudence") (Austin 1995, Lecture V). His famous "command theory" of law held that laws were commands promulgated by a sovereign to its subjects (he also offered detailed analyses of what was meant by "sovereign" and "command") (Austin 1995, Lectures I & V). Nonetheless, it remains hard to determine whether he is purporting to make empirical claims or conceptual ones, and he rarely gives us any basis for judging (e.g., Cotterrell 2003, 81-83).

There is a strangeness at the core of the enterprise: as here we have theorists seeking an abstract and universal theory of a changing social practice. Theories of the nature of law are, after all, not like theories in the physical sciences, most of which are potentially falsifiable by experimentation or observation.3 Nor are theories of the nature of law even like claims in the social sciences, where supporting or undermining data might be found in either social science experiments, or the "natural experiments" within historical or recent observation. As shall be discussed, the connection between legal theory and real-world data is simultaneously complex, uncertain, and highly controversial.

To ask the question, "What is law?" is to assume that there is a sensible answer, which in turn seems to assume that there is some object or category "law" one can discuss and describe (as well as assuming—perhaps less controversially—that there might be interesting things to say about that category or its contents).

If one were a Platonist, one might think that law referred to some Platonic Idea, for which the law of different countries and different times were merely imperfect instantiations or approximations. However, Platonists are not thick on the ground, and they seem particularly rare in the area of theorizing about social practices and institutions. In fact, the jurisprudential theorist most closely associated with metaphysical realism, Michael Moore (e.g., Moore 2000), stops well short of Platonism about "law," concluding instead that law might be some sort of functional kind (Moore 2000, 294-332). Moore’s conclusion is that it is unlikely that all legal systems share a common underlying structure (as is true, roughly speaking, with natural kinds), but that one might be able to point to certain human goods that all legal systems uniquely or distinctively increase (Moore, 2000, 318-24).

Natural kinds theory has been a popular middle ground for those who might be uncomfortable with full-blown Platonism, but who want to ground the objectivity of discourse in some area. Traditional natural kinds theory, associated with the work of Hilary Putnam (1975), Saul Kripke (1980), and Tyler Burge (1979), is a view about the relationship of conventional belief, meaning, and reference. It was grounded on the idea that there are categories where the language users collectively connected a word to a category, but "the way the world is," not the language users’ beliefs, determined the outlines of the category (the extension of the naming term). Such an approach seems most persuasive for terms like "gold" and "water" where a physical structure defines the category. It seems less persuasive for a category like "law," where the term refers to a social institution and set of practices. Nicos Stavropoulos (1996) has offered interesting arguments for why something like a natural kinds argument might work for understanding and applying certain legal concepts. However, there seems little reason to believe that a natural kinds approach might work for law itself.

(One could understand "natural kinds analysis" more broadly, as simply referring to a process of meaning and reference where, for certain terms, the general public defers to the judgments of "experts." This view of natural kinds has the advantage of requiring fewer metaphysical assumptions or implications. Even at this broader reading, there is little reason to think that "law" is the sort of term of which people do—or should—defer to "experts" to determine meaning and reference (Coleman & Simchen, 2003, 14-28)—though, of course, they often do defer to experts to determine what a particular legal rule, or set of rules, means.)

Many of the prominent modern legal philosophers (Hart, e.g., 1961; Raz, e.g., 1996; and Coleman, 2003) have argued instead that theories of law do or should focus on the concept of law. Conceptual analysis has been central to analytical philosophy (e.g., Jackson 1998, Beaney 2003, Fodor 2004), as philosophers explored the "essential" or "necessary and sufficient" attributes of various concepts.

An initial question that may come to mind is: Why study the concept of law?; Why not just study law itself? After all, as Raz himself states: "Broadly speaking, the explanation of a concept is the explanation of that which it is a concept of" (Raz 1998b, 255). Is not focusing on the concept a poor substitute for the real thing, or (to change the metaphor) a smoky glass through which to view our real object of interest?

Raz states (2005, 325) that concepts lie between words and meanings on one hand, and the object(s) the concepts pick out on the other (and in this assertion he seems to be following conventional thinking). One can "have a concept" without having detailed knowledge of the thing it is a concept of (Raz 1998b, 256; Peacocke 1992), and one should not confuse what goes into a conventional explanation of a concept with what is entailed in a philosophical explanation of the concept (Raz 1998b, 256).

If one says that concepts lie between words and meanings on one hand, and the thing itself on the other, one might need to focus on the problems associated with the second term, the thing itself. If the boundaries of "law" are not set by "the way the world is" (as would be asserted by Platonists about "law," and also some versions of a "natural kinds" approach to "law"), then what does establish those boundaries? The obvious answer appears to be—the concept of law itself. (Of course, by speaking of the concept, we mean indirectly the population(s) as a whole who developed the concept in question.) It is the concepts that set the boundaries.

II. Raz’s Theory

In three recent works, Raz has set out in some detail his views on theories of law, and conceptual analysis in the theory of law (Raz 1996, 2005, 2007). For Raz, general theories of law make universal claims, attempting to elucidate what is necessarily true about the nature of law (Raz 1996, 2). Such theories are universal in the sense that they purport to apply to all law—across countries, and over time. They are simultaneously parochial in that a concept of law is parochial to the society that developed it (Raz 1996, 2-3). (The concept of law determines whether something is "law" or not; a society can have a concept of law, but not have law, or it can have law, under some particular concept of law, but not have that concept (1996, 3-4)).

Our legal theories are not (pace Hart 1961) theories of the concept of law, but theories of "our concept" of law (Raz 1996, 5). Concepts are part of a society’s self-understanding, and different societies will have different collections of concepts (Raz 1996, 5). Theorists cannot simply select the concept they prefer based, say, on meta-theoretical virtues like simplicity or elegance, or based on pragmatic considerations like the likely fruitfulness for future research (Raz 2005, 331; Raz 1994, 221; see also Raz 2007).4 Raz writes:

"concepts like that of law…[are] used widely by people to understand their own and other people’s situation, especially their social situation. …These concepts are not merely tools of understanding, they are part of what shapes the social world we are trying to understand. They, the concepts themselves, are what we are trying to understand, and not tools of explanation." (Raz 2007)

To this view, contrast that of another prominent defender of conceptual analysis in analytical legal philosophy, Jules Coleman, who recently affirmed that "there is no reason to suppose that conceptual analysis is not responsive to practical considerations" (Coleman 2003, 210 (footnote omitted); see also Bulygin 2007). And a theorist as prominent and sophisticated as Eugenio Bulygin asserted that we "will prefer the concept of law that best captures its [the law’s] essential features over all available alternatives." As earlier indicated, such a view mistakes the way our concept picks out what counts as law (instead assuming that there is some pre-existing category, and we are only looking for which concept best matches that category).

According to Raz, concepts of law can and do change (and having a mistaken theory about law might affect the direction of such change) (Raz 1996, 7). Theories of law change in part because part of the function of the theory is to show the relationship between our concept of law and other concepts (and those concepts, too, are changing) (Raz 2007). Additionally, "people’s interests, and their sense of puzzlement change over time" (Raz 2007), and the theories that prevail at a given time will be those that respond to the interests and puzzles of the time. Of course, the development of or a change in concepts—whether for the concept of "molecule," "inflation," or "law"—does not change the underlying reality the concept describes5 (Raz 2007).

Raz’s own theory of law is grounded on the claim that law necessarily claims authoritative status (Raz 1996, 199). What follows from this is that law must be the sort of thing that can be authoritative. This is then combined with Raz’s "service conception of authority," under which it is appropriate to submit to a purported authority, when "the subject would better conform to reason that apply to him anyway…if he intends to be guided by the authority’s directives than if he does not"6 (Raz 2006, 1014). The result, Raz argues, is that for law to be the type of thing that can be authoritative, citizens must be in a position to determine what the law requires without consulting the underlying reasons—including the underlying moral reasons—for the ultimate choice (Raz 1996, 201-04). This grounds Raz’s "Sources Thesis": that "the existence and content of every law is fully determined by social sources" (Raz 1979, 46; see Raz 1996, 202-04).

Raz does not assert that these are the only essential truths about law. To the contrary, Raz’s view hints at a long list of essential characteristics. He writes: "While the law has many essential features we are not aware of all of them. They come to light as we find reason to highlight them, in response to some puzzle, to some bad theory, or to some intellectual preoccupation of the time"7 (Raz 1996, 6).

While much of Raz’s recent work could be seen as endorsing (or at least assuming) that our society has a single concept of law, in recent comments Raz has denied making that assumption or conclusion (Bix 2005a, 314). The possibility of multiple concepts of law within a society raises further questions: When that is the case, should the legal theorist attempt to select among the concepts, and, if so, on what grounds? Raz has, to date, offered no guidance on those matters.

However, he has argued that the difference between minimal and complete command of concepts can explain how people can share a concept but disagree about the correct account of that concept—or even what the rules are for the minimal command of the concept (Raz 2007; see also Raz 2005). And there can be changing explanations of (theories of) the same concept as the theorists respond to the differing interests and concerns of different periods (Raz 1998b, 256-58).

III. Connections with Legal Practice

Those who discuss theories of the nature of law face regular queries regarding the connection between legal theory and legal practice. In considering such connections, two different sorts of concerns are raised: (a) the practical concern—the extent to which legal theories do or should affect the outcome of actual legal disputes; and (b) the hermeneutic concern—the extent to which legal theories should track participants’ perceptions of the practice, and their way of talking about the practice. I will consider each type of concern, briefly, in turn.

A. The Practical Concern

In the earliest discussions (e.g., in Aristotle, Augustine, and Aquinas), inquiries about the nature of law were tied into broader moral or political questions: How should government officials act, and how should citizens act in the face of (good or evil) government action?

Modern work in analytical legal philosophy often purports to be doing something altogether different: Not so much investigating the nature of law to help another larger or more action-guiding inquiry but, rather, seeking that knowledge about the nature of law for its own sake.

What is the connection between a/the/our concept of law and ongoing legal practice—that is, how actual cases are, or should be, decided? One of the most important insights of Raz’s work has been to emphasize that the two questions are largely, and perhaps entirely, separate (e.g., Raz 1998a, 4-5; 2007). One can logically separate the question when is a norm or norm system "legal" and the question of how the judges should decide this case before them.

It is quite common to come across contrary views about the relationship of theories of law and legal practice, including (or especially) from other prominent legal theorists. For example, Robert Alexy (2002), incorporating a version of Gustav Radbruch’s work on unjust legal norms (Radbruch 2006), argues that extremely unjust laws lose their character as laws and, therefore, are not to be applied in legal disputes. This is offered not merely as advice to judges about what their legal duties or moral duties are when faced with evil laws but, rather, a prescription that purports to derive from a legal theory. A second example is Ronald Dworkin, who, as part of his interpretive approach to law, argued that any decision in a particular legal case implies a view on the nature of law ("Jurisprudence is the general part of adjudication, silent prologue to any decision at law"8 Dworkin 1986, 90).

If one defines law in terms of which norms judges have an obligation to apply to disputes (cf. Dworkin 1983, 262), and when, then it is not surprising that one’s theory will have a corollary that there is a direct connection between one’s choice of theory of law and outcomes in particular cases.

On the other hand, if one starts from the view that an exploration of the nature of law (or the concept of law) is not intrinsically a subset of how individual cases are to be decided, then there is (as Raz and others have argued) no reason to believe that legal theories will have implications for particular cases.

It is important to note the inclination, quite strong among American legal academics—less so among theorists from continental Europe (and perhaps also less strong among American academics who find their home in philosophy departments rather than law schools)—to want always to know the normative ("bottom line") consequence for any theory they consider. They find analytical legal philosophy, at least as it is most commonly practiced, deeply frustrating because of its refusal to offer prescriptions based on its theoretical claims.

The response one often finds when presenting an analytical legal philosophy paper is something along the lines of "if your theory has no consequences for what we do, for how we practice law, what good is it, and what is the point of doing such work?" In general, I have little sympathy for the normative fixation of American legal scholars. Of course, critique and prescription are extremely important, but there is ample room for knowledge for its own sake—in legal history and the history of ideas, for example; and in metaphysics—even if no immediate pragmatic use of that knowledge is forthcoming.

Yet, I think we can grant that there is room to question the nature of the "knowledge for its own sake" that conceptual analysis has on offer. Is conceptual analysis of law, in the end, merely a quasi-sociological investigation into one’s community’s linguistic intuitions? A number of the significant debates within analytical legal philosophy have been around claims about intuitive uses of terms: Do we call evil state rules "law," or do we withhold the title? Does it make sense to deny the title of "law" to international law? Can a normative system be called "legal" if it does not make a claim to correctness (Alexy 2002)?
What do theorists think they are doing constructing their theories of law (and what do their readers think they are getting from those theories)? The way our concepts divide up the world, and the way in which they connect with one another, have some intrinsic interest—as a matter of showing our way of viewing the world, and the biases it may bring, if nothing else. However, it is difficult to escape the conclusions (1) that most people who do or read legal theory think that something more substantial is at stake; and (2) that perhaps something more substantial should be at stake to justify all the attention and strong feeling that debates about the nature of law seem to raise.

B. The Hermeneutic Concern

A standard question in social theory is the extent to which theories of social practices can and should be grounded in, or at least incorporate, the participants’ perceptions of or understandings of the practice. This is the on-going debate between "behavioralist" or "positivist" approaches to explaining human behavior on one hand, and "hermeneutic" or "Verstehen" approaches on the other.

H. L. A. Hart was widely lauded for introducing a hermeneutic approach to legal theory, by building his theory of law around an "internal point of view." Raz accepts Hart’s internal point of view, but Raz’s theory raises hermeneutic concerns at a different level: that his theory requires a characterization of official behavior sharply at odds with how the officials themselves, and lawyer and lay observers, characterize the actions. This is most obviously the case when he argues that when judges invalidate legislation based on constitutional provisions that include moral terms, the judges are not declaring the already-true invalidity of those statutes, but are instead exercising delegated authority to invalidate statutes that were entirely valid until the judges acted (see Dworkin 2002, 1669-71). As Coleman puts it, "[a]ll parties to the debate, including Dworkin and the proponents of both inclusive and exclusive legal positivism, agree that there is, as it were, a ‘surface grammar’ of moral language in law that needs to be explained" (Coleman 2001, 125). While there are weaknesses and discrepancies in each and every characterization of what legal officials are doing in these cases, Raz’s view almost certainly carries the greatest discrepancy between theory on one side and conventional understanding on the other. Another example is where Raz argues that when the legal validity of contracts potentially turns on moral evaluation, then it is never legally conclusive that a contract is valid until a court rules on the matter (Endicott 2003).

As Raz might (and sometimes does) point out, one should not always make too much of participant perception: competent observers characterize the activities of legal officials differently; sometimes, there are conventions of presentation, which most (if not all) competent observers know to be misleading; and where clear analysis conflicts with participant perception or presentation, sometimes it is the latter that must give way.

What might give one pause here, though, is the willingness Raz shows elsewhere in saying that the facts of practice have shown certain older theories to be false (Raz 1998b, 258, discussing Austin & Kelsen). He seems less willing in those cases than in his own to consider alternative characterizations of the legal "facts" that seem to conflict with the theories, and it is not clear why.

IV. Challenges to Raz’s Conceptual Analysis Approach to Legal Theory

It is important to understand that Raz’s theory is not merely his own distinctive approach to legal theory, but (whether so intended by its author or not) also an attempted charitable interpretation and defense of the analytical legal philosophy tradition, which includes H. L. A. Hart and many later theorists consciously working generally within the Hartian legal tradition.

Raz’s approach is subject to three distinct challenges: (1) that conceptual analysis is an improper approach to philosophy; (2) that whatever its merits elsewhere in philosophy, it cannot (or should not) be applied to the study of law; and (3) that conceptual analysis in law needs to be supplemented by moral evaluation.

Elements of the first two challenges can be found in the works of Brian Leiter (1998, 2003a, 2003b); the third challenge has been advocated by Stephen Perry (1995, 1998, 2000).9 I will consider Perry’s challenge first.

A. Conceptual Analysis Supplemented by Moral Evaluation

Perry has argued that there are multiple concepts of law. By way of example, he points to contrasts among prominent theories: Hart’s view that law’s purpose is to guide conduct (Hart 1961) versus Dworkin’s view that law’s purpose is to constrain state coercion (Dworkin 1986); or between Hart’s theory based on an internal point of view and Holmes’s view (Holmes 1897) based on an external, "bad man’s" view (Perry 1995, 2000). Given that there are multiple concepts, how are we to choose among them? Perry’s argument is that such choices are made on normative (moral or political) grounds, and that we can in fact find such arguments expressed or implicit in the works of legal theorists who otherwise disclaim recourse to moral or political evaluation (the disclaimers being based on the way that a prominent school of analytical legal philosophy, legal positivism, purports to exclude moral and political evaluation from its theories of law10).

Raz has (to my knowledge) offered no detailed response to Perry’s challenge, but Jules Coleman has defended descriptive or legal positivist conceptual analysis from Perry’s critique. His argument is that the debates between different conceptions of law have not in fact been grounded in different moral and political views, and, in any event, there are sufficient resources within conceptual analysis to choose among competing theories (Coleman 2003, 207-10; see also Marmor 2006).

B. Naturalism

What is the connection between claims about concepts, linguistic practices, and shared intuitions? If a theorist like Raz states that it is of the essence of law that the system claims authoritative status for its norms, and another commentator denies this, how does one judge between the contrary claims? A growing number of prominent writers in philosophy have argued that conceptual analysis is a dead end, offering only insufficiently grounded and frequently false claims about shared intuitions (e.g., Harman 1999, 139-40; Fodor 2004).

In legal philosophy, Brian Leiter (2003a, 47-49) has offered a similar critique, aimed at conceptual analysis within legal philosophy generally, and theories of the nature of law in particular. Leiter argues instead that jurisprudence should become "naturalistic." Here it is first important to clarify terminology: "naturalism" here is not to be confused with "natural law theory," a quite different approach to law (though some commentators do use "naturalist" as an adjective to summarize the natural law approach to some subject). Leiter’s "naturalism" derives from a view of that name within modern philosophy, which holds, roughly, that "acceptable methods of justification and explanation are commensurable, in some sense, with those in science" (Audi 1995, 517).

The philosophical naturalism Leiter advocates has a strong home in epistemology, where the argument is that our ideas about what knowledge is and how we should reason should be grounded in empirical data about how people in fact reason (Kornblith 1994). In particular, Leiter relies strongly on W. V. O. Quine’s famous argument in "Two Dogmas of Empiricism" (Quine 1951), where Quine both questioned the analytic-synthetic distinction and challenged the idea that sentences could be confirmed at an individual level, separate from other and related propositions (a view sometimes described as "confirmation holism") (see also Quine 1969).

Other recent critiques of conceptual analysis have suggested that one can accept some of Quine’s epistemological points without having to agree with some of his more controversial views about verificationism and skepticism about language (e.g., Williamson 2006).

As Leiter has pointed out (in the context of discussions of American legal realism), an analogy can be drawn from naturalist epistemology to a possible naturalist approach to legal and judicial reasoning (e.g., Leiter 2003b). The argument is that some of the legal realists could be understood as naturalists, in the sense that they encouraged commentators to switch their focus from highly abstract ideas of how judges can and should reason, to an empirical understanding of what actually occurs in judicial decision-making.

One might wonder what a comparably "naturalistic" (empirical) approach to a theory of (the nature of) law would look like. To look to actual behavior would offer only the linguist’s conclusion of how the words "law" and "legal" are used. And as both supporters and opponents of conventional analytical legal philosophy have asserted, analytical legal theory purports to be more than a guide to linguistic usage.

(Ronald Dworkin famously argued that many of the analytical legal theories of our time should be understood as semantic theories, theories about the meaning of the word "law" (Dworkin 1986, 41-46). However, no major theorist I know of has accepted that as either an accurate or a charitable description of his or her theory.)

Of course, it remains open to Leiter (or others) to argue that, should there be no adequate naturalist approach to theories of the nature of law, that fact would not make a conceptual approach legitimate. Instead, the argument would likely go, theories about the nature of law should simply be abandoned.

Some critics of Leiter’s approach have turned the critique around, stating that while empirical investigation of adjudication and other legal processes would be highly valuable, it would not (and could not) supplant analytical legal philosophy; to the contrary, it would be grounded on or assume a conceptual analysis of the boundaries of law/legality (Coleman 2003, 213-16; see also Oberdiek & Patterson 2007)

C. Dworkin’s Interpretative Approach

The possibility that we should not be seeking general, universal, and conceptual theories of law has also been argued by Ronald Dworkin, whose work represents a third challenge to Raz’s conceptual analysis of law. Dworkin has argued that the proper approach to legal theory is constructive interpretation (because this is the proper approach to understanding all social practices11), with the proper focus on interpretation being a single legal system, not all current, past, or possible legal systems (Dworkin 1986). While he does not argue at length against a universal theory of law, his comments indicate that it is only at the level of interpreting particular legal systems (or particular parts of individual legal systems) that the interpretations will yield anything substantial and interesting.

The critique or defense of Ronald Dworkin’s theory is something of an industry unto itself, and there is little point in entering that fray in any detail here. Raz’s own view, reflecting a theme from many commentators, is that Dworkin’s theory mistakes a theory of adjudication for a theory of law (Raz 1994, 186-87).

Conclusion

Most of the influential theories about the nature of law are conceptual theories, but these theories are coming increasingly under challenge. It is important to determine whether conceptual analysis is appropriate for legal philosophy (or for any area of philosophy); whether, even if appropriate, it is sufficient (or needs supplementation by moral evaluation); and whether, even if appropriate and sufficient, its objectives and achievements are substantial.

Endnotes

1. I am grateful to the comments and suggestions of those present when an earlier version of this paper was presented at Macalester College.

2. In many other languages, there are separate words for law in general and particular legal rules (e.g., "Recht" and "Gesetz" in German).

3. I realize here that there are numerous complications and nuances that would need to be added to that brash generalization, from references to paradigms to the examples of abstract claims in modern physics (e.g., relating to string theory or certain other claims about subatomic particles) that seem unlikely ever to be either falsified or supported given limitations in current experimental apparatuses.

4. Raz (2007) is a piece responding to Alexy (2007) and Bulygin (2007), who were in turn commenting on Raz (2005).

5. Raz offers (2005, 2007) that there may be some social relations (perhaps including marriage) for which having a concept or not affects the underlying reality, but he does not think that this applies to law.

6. Raz adds that excluded are "matters…such that with respect to them it is better to decide for oneself, unaided by authority" than to conform to reason (Raz 2006, 1014).

7. The quotation continues: "The study of jurisprudence is never-ending, for the list of the essential properties of law is indefinite. There is neither point in nor possibility of listing them all. We explore them not just because they are true but because they answer to a current concern" (Raz 1996, 6).

8. It is helpful to have a fuller quotation:
"General theories of law…must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it. But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice. Legal philosophers debate about the general part, the interpretive foundation any legal argument must have. We may turn that coin over. Any practical legal argument, no matter how detailed and limited, assumes the kind of abstract foundation jurisprudence offers, and when rival foundations compete, a legal argument assumes one and rejects others. So any judge’s opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts. Jurisprudence is the general part of adjudication, silent prologue to any decision at law" (Dworkin 1986, 90).

9. Other advocates of the second critique include Murphy (2001) and Alexy (2002, 22-23, 40).

10. It is worth noting that though Joseph Raz is strongly associated with legal positivism in general, and a sub-division, "exclusive legal positivism," in particular, he has made clear that he does not affirm the universal claim often associated with legal positivism that "there is no necessary connection between law and morality." Raz, to the contrary, believes that there are a number of such connections (but none that contradict his Sources Thesis) (Raz 2003).

11. Dworkin also believes that constructive interpretation is the proper approach for understanding art.

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