Method Matters: Non-normative Jurisprudence and the Re-mystification of the Law

Abstract

By exploring HLA Hart’s The Concept of Law, and the trajectory of the debate following Hart’s contribution, it quickly becomes apparent that value-neutral “conceptual analysis” is a more tenuous methodological approach than its proponents assume. Once Hart becomes an inclusive positivist, many of the ideas and aims that were once central to his project are either wholly abandoned or dramatically transformed. Even the “idea of a rule” is re-conceived in a manner that is antithetical to both the letter and the spirit of his canonical work. The value of the value-neutral method is called into question once the limits of this approach come into view: many seemingly central questions—including questions that Hart explored—must never be answered if this commitment is to be kept. While much of this paper addresses the shortcomings of inclusive positivism, I will also argue that exclusive positivism does not solve Hart’s problems. Following Nigel Simmonds, I re-frame Hart’s project around the distinction between law and the gunman writ large. Not only are the shortcomings in Hart’s substantial theses illuminated, but the close connection between substance and method is exposed. Raz, unlike Hart, appears to account for the normative dimensions of law without sacrificing Hartian conceptual analysis. This, I will argue, is an illusion. Value-neutrality is more difficult to adhere to than its proponents assume.