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The Methodology of Jurisprudence: Thirty Years Off the Point

Published online by Cambridge University Press:  20 July 2015

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Extract

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.

Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.

A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

I am grateful to Dennis Patterson and William Twining for helpful discussion, and to Richard Bronaugh for valuable editorial advice and for furnishing the illustration in the introductory paragraph.

1. For bibliographical discussion, see (I)(a)-(c). Throughout this essay, I place discussion of bibliographical material within the Appendices which are numbered (I)-(XII), corresponding to sections I-XII of the essay. I employ occasional footnotes to draw the reader’s attention to points where material in the substantive sections of the essay is amplified by the bibliographical discussion in the relevant lettered paragraph(s) of the related appendix.

2. See (I)(d).

3. See (II)(a).

4. See (III)(b)-(c).

5. See (V)(c).

6. See (V)(e).

7. See (V)(d).

8. For a fuller analysis, see (V)(f)-(i).

9. See (VI)(a).

10. See (VI)(b).

11. See (VII)(b).

12. See (VII)(c), (d), (f), (g).

13. See (VII)(e).

14. See (VII)(h)-(j).

15. See (VII)(k).

16. See (VIII)(a).

17. See (VIII)(b).

18. See (VIII)(c).

19. See (VIII)(c).

20. See (X)(a).

21. See (X)(b).

22. See (X)(b).

23. See (X)(c)-(e).

24. See (X)(0-

25. See (XI)(a).

26. See (XI)(b).

27. See (XI)(c).

28. See (XI)(d).

29. See (XII)(a).

30. See (XII)(b).

31. See (XII)(c).

32. See (XII)(d).

33. See (XII)(e).

34. See (XII)(d).

35. See (XII)(f)-(g).

36. See (V)(f)-