The Methodology Problem in Jurisprudence

THE METHODOLOGY PROBLEM IN JURISPRUDENCE

For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called "the Hart/Dworkin debate," a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book The Concept of Law. Hart's final word on that debate is now available to us in the posthumously published 1994 "Postscript" to The Concept of Law, while Dworkin has not published anything substantially new about the debate since his book Law's Empire in 1986.

The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart's masterful work at its center. Rather, it seems to me--and, I venture, many others by now--that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt.

The point is not, I hasten to add, that there remain no challenges to legal positivism, but rather that the significant issues that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall in to two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's