Legal Theory and the Social Sciences

Volume II

Maksymilian Del Mar, Michael Giudice, MaksymilianDel Mar

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754628897
• eBook ISBN: 9781351560467
• Topic: Geschichte
• Subtopic: Rechtswissenschaft

Ever since H.L.A. Hart's self-description of The Concept of Law as an 'exercise in descriptive sociology', contemporary legal theorists have been debating the relationship between legal theory and sociology, and between legal theory and social science more generally. There have been some who have insisted on a clear divide between legal theory and the social sciences, citing fundamental methodological differences. Others have attempted to bridge gaps, revealing common challenges and similar objects of inquiry. Collecting the work of authors such as Martin Krygier, David Nelken, Brian Tamanaha, Lewis Kornhauser, Gunther Teubner and Nicola Lacey, this volume - the second in a three volume series - provides an overview of the major developments in the last thirty years. The volume is divided into three sections, each discussing an aspect of the relationship of legal theory and the social sciences: 1) methodological disputes and collaboration; 2) common problems, especially as they concern different modes of explanation of social behaviour; and 3) common objects, including, most prominently, the study of language in its social context and normative pluralism.

Part I
Methodology: Collaborations and
Disputes

[1]

THE CONCEPT OF LAW AND SOCIAL THEORY†

MARTIN KRYGIER•

For the past twenty years, analytical jurisprudence particularly in Great Britain, but also in the United States and much of the rest of the world, has been profoundly influenced by one author and one book. The author is, of course, H. L. A. Hart; the book is The Concept of Law.¹ As one of the editors of the Festschrift to Hart has remarked, ‘No serious writing upon the subjects with which Professor Hart dealt can afford to neglect his work, and the key concepts with which he was concerned will, for a long time, be discussed within the parameters he laid down’.²

Hart has, without doubt, had his greatest influence on legal philosophy. Through his masterly combination of conceptual analysis with deep knowledge of law, he has demonstrated both to philosophers and jurisprudentially inclined lawyers how much each can gain from an application of philosophical techniques to legal materials and of legal techniques to philosophical materials. However, while this might be its most obvious achievement, the importance of The Concept of Law does not end there. For it is a remarkably catholic work, whose relevance and insights do not fit neatly within one disciplinary pigeon-hole, or even two. A number of authors have noted, for example, that it also makes, or can be used to make, contributions to social theory, though few have tried to specify these in any detail,³ and most have acknowledged, indeed emphasized, that the general influence of The Concept of Law on social theory generally and legal sociology in particular has been small. Conversely, the influence of these disciplines on analytical jurisprudence, except as an occasional source of apt, or in the case of Malinowski exotic, illustration, has not been remarkably conspicuous.

Several reasons might be adduced for this. For a long time, despite its Durkheimian and Weberian ancestry, sociology had little to say about law, treating it, as Talcott Parsons recently put it, as an ‘intellectual step-child’, considered less important than the economy, polity, society or morality.⁴ This is somewhat, though not altogether, less true today. Secondly, especially in English-speaking countries, many sociologists and philosophers do not read outside their own discipline, and the mere fact that The Concept of Law is so obviously a work of legal philosophy may well have determined whom it would influence.

A distant antipodean might also be forgiven for suspecting that there was an odd conspiracy between partisans of legal sociology and analytical jurisprudence, to minimize the relevance of one for the other, and more specifically to ignore the sociological elements, and their importance, in Hart’s work and his kind of work. On the one hand, among those (relatively few) writers interested in sociological approaches to law who have noticed Hart’s claim that The Concept of Law might be regarded as an ‘essay in descriptive sociology’, several have greeted it with surprise, others have rejected it, and very few appear to have treated it very seriously. Thus, in an article which seeks to persuade lawyers and sociologists to collaborate and take each other seriously, Professor Willock emphasizes that Austin and Kelsen, ‘the two main modern suppliers of a definition and analysis of law, both see the need, once its nature has been established, to study its connection with other disciplines’. He adds in a surprised after-thought, ‘Even H. L. A. Hart claims that The Concept of Law “may also be regarded as an essay in descriptive sociology”.’⁵ Again, two prominent British legal sociologists have identified as one of the reasons for the relatively late development of their discipline, the alleged fact that British courses in jurisprudence

… were of a character inimical to the development of interest in law in society research. Analytical jurisprudence and legal positivism (in particular the writings of Bentham, Austin, Kelsen and, more recently, Hart) have proved of intimidating endurance as archetypes for 19th and 20th century British legal theory. Neither sociological jurisprudence nor legal realism triumphed over positivism as they did in America.… Of course there have been exceptions to this.… But such incursions have been of tangential importance; the precepts of such writers have, almost uniformly, been ‘translated’ in terms acceptable to the general perspective of analytical jurisprudence.⁶

The language of this complaint does not suggest that these authors see much scope for enlightenment from any of the ‘archetypes’ they mention. Finally, in a more measured assessment of Hart’s influence and contribution, Twining remarks that, although several contributors to Hart’s Festschrift ‘explicitly treat law as a social phenomenon, the overall impression created by the collection is that this type of work is proceeding in almost complete isolation from contemporary social theory and from work in socio-legal studies, with little overt concern with the law in action’.⁷ Twining, too, mentions ‘the tantalizing claim that The Concept of Law may be regarded “as an essay in descriptive sociology”’, and he concludes:

… A sympathetic critic can be sceptical about the claim, not because it is wrong or misleading, but because the idea of a descriptive sociology of law is not developed in The Concept of Law nor in Hart’s other writings. What, for example, is the scope of a descriptive sociology’ and how does it relate to other kinds of sociological enquiry? Why ‘descriptive’ if the purpose is understanding? What within this field might be important concepts that might be usefully clarified by the kind of analysis of which Hart is an acknowledged master? Hart’s individual concerns, and the intellectual tradition of academic law within which he has worked, have not led him to direct much attention to such questions. But it is important to recognise that while his focus of attention may have been relatively narrow, the philosophical techniques and approach which he has introduced into legal theory are capable of application to a much wider range of concepts and issues.⁸

If legal sociologists and sociological jurists have not been much influenced by the renaissance in analytical jurisprudence which Hart inaugurated, analytical jurists have frequently remained rather innocent of social theory and empirical social research, and have at times manifested an attitude of haughty, and not always benign, neglect towards work in these fields. Few now deny that there is a place for such inquiries, and some have insisted that it is an important place.⁹ However, they appear to have remained confident that it is a clearly different place from their own, and few show evidence of frequent visits. In this, they might be following Hart’s lead, for some time ago he made it clear where he believed that at least a teacher’s emphasis should be: ‘the limited time which the student can spend on jurisprudence is better devoted to analytical inquiries than to sociological jurisprudence’.¹⁰ One reason for this, which Hart rightly says ‘no candid student of sociology could deny’, is that

valuable as the insights have been which it has provided, the average book written in the sociological vein, whether on legal topics or otherwise, is full of unanalysed concepts and ambiguities of just that sort which a training in analysis might enable a student to confront successfully. Both psychology and sociology are relatively young sciences with an unstable framework of concepts and a correspondingly uncertain and fluctuating terminology. If they are to be used to illuminate us as to the nature of law, these sciences must be handled with care and with a sensitivity to the types of ambiguity and vagueness, and also other linguistic anomalies, which the student will best learn to appreciate in handling the leading concepts of the law in an analytic spirit.¹¹

And Hart has on at least one occasion shown us the benefit of such an application of analytic techniques to sociological theory, in his dissection of the views of Lord Devlin and of Durkheim on the sources of social solidarity.¹² Thus analytical inquiries should be distinguished from sociological ones, students should be taught the former and sociologists could, and need to, learn much from conceptual analysts. It is not clear, however, what, if anything, Hart believes analytical jurists have to learn in the conduct of their own enterprise, from theoretical or empirical social science.

Ronald Dworkin, Hart’s successor at Oxford, has stressed that a ‘general theory of law’ relies on many branches of philosophy and must ‘constantly take up one or another disputed position on problems of philosophy that are not distinctly legal’,¹³ but he shows no sign of believing that social theory has much to contribute. When he writes about legal sociology, he, like many lawyers, does not seem to have in mind its theoretical branches, but is thinking of empirical sociological research on legal institutions. Lawyers who attempted such research, he suggests, ‘discovered that lawyers do not have the training or statistical equipment necessary to describe complex institutions in other than an introspective and limited way. Sociological jurisprudence therefore became the province of sociologists’.¹⁴ In any event, it is not clear what Dworkin believes sociologists could offer jurisprudence, for he insists that ‘jurisprudential issues are at their core issues of moral principle.… [I]f jurisprudence is to succeed, it must expose these issues and attack them as issues of moral theory’,¹⁵ and Dworkin criticizes ‘the sociological approach’ among others for obscuring these issues.

Finally, such confident boundary-drawing is epitomized in Joseph Raz’s rather impoverished conception of the domain of legal sociology, and perhaps legal philosophy. According to Raz, the difference between legal philosophy, which he does, and legal sociology, which presumably is to be done by someone else, is that ‘the latter is concerned with the contingent and with the particular, the form...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I METHODOLOGY: COLLABORATIONS AND DISPUTES
• PART II COMMON PROBLEMS: MODES OF EXPLANATION OF BEHAVIOUR
• PART III COMMON OBJECTS: MODES OF EXPLANATION OF LEGAL PHENOMENA
• Name Index