The nature of law as an interpretive practice and its associated modes of inquiry

The nature of law as an interpretivepractice and its associated modesof inquirylest_139 576..591

Nathan GibbsLecturer in Law, Aberystwyth University*

The paper provides a critical survey of certain methodological debates in the field of legalphilosophy in order to assess their implications for legal research in general. Under-pinning this survey is a concern to establish the independence and integrity of both legalpractice and legal research in the light of the risks posed by preponderant forms ofinstrumental rationality. Thus, Brian Leiter’s recent call for a ‘naturalised’ jurisprudenceis criticised for the instrumentalist basis upon which he claims to privilege forms of legalresearch apparently ‘continuous with’ the natural and empirical social sciences. Asagainst Leiter, it is argued that there are in fact a range of distinct but interrelated modesof legal research. In this respect, the work of HLA Hart is interpreted as an example of adistinctively theoretical mode of inquiry into law. In addition, an account of the nature ofa distinctively practical mode of legal inquiry is developed from a critique of RonaldDworkin’s excessively ‘theoretical’ reading of the interpretive character of legal practice.A constitutive practical feature of both modes of inquiry is their capacity to take up acertain distance from any exclusive concern with instrumental or pragmatic action.

INTRODUCTION

This paper seeks to explore certain fundamental methodological questions in legalphilosophy, as that term is generally understood, and to pursue their implications forlegal research (or the understanding and interpretation of law) more generally. Meth-odological questions have, of course, always been central to the concerns of legalphilosophy. The implications of some of the questions raised in these theoreticaldebates over methodology, for legal research in a broader sense, have arguably notbeen adequately addressed. The paper seeks to tackle this problem through a criticalsurvey of certain of the central methodological questions examined in contemporarylegal theory, along with an account of the implications of this survey for legal researchin general. It must be stressed, however, that the discussion of these methodologicalfundamentals is not carried out for its own sake but has a deeper purpose; namely, todraw attention to how our thinking about the legal order in which we live need not beconstrained by any instrumental practical interest (the generic need to control or copewith our changing environment). The diverse ways of thinking about law, interpretingit, criticising it and so on are an important expression of our ability to gain a certainfreedom from instrumental necessity and to express this in terms of the organisation

* I would like to thank Richard Ireland for his illuminating and acute comments on thispaper.

Legal Studies, Vol. 29 No. 4, December 2009, pp. 576–591DOI: 10.1111/j.1748-121X.2009.00139.x

© 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

of our common life through law. The ways available for understanding and interpret-ing the law therefore condition the types of social relations we are capable ofestablishing.

In particular, this paper will explore the limitations of two important and poten-tially far-reaching conceptions of the role of legal theory in the strict sense in shapingthe methods and approaches adopted by more critical or practical legal research. Ins 1 of this paper, we will examine Brian Leiter’s recent proposal concerning a‘naturalised jurisprudence’, a form of legal research continuous with the naturalsciences and empirical sociology.1 It will be argued that Leiter’s conception of theproper methods of legal research is fundamentally mistaken in that it underplays theimportance of the idea that law is an interpretive social practice. The interpretivecharacter of legal practice might be understood, for present purposes, in the followingmanner: the standards, rules and so on constitutive of legal order derive their meaningfrom the role they play in the practical understanding of legal agents. In other words,the fundamental way in which legal rules exist as legal rules is insofar as legal agentshave intelligent dealings with them and they deal with them by using the rules tointerpret conduct in specific situations. For example, I may be faced with a decisionas to what my duties as a trustee are in such and such a situation and an adjudicativebody may be charged with the task of whether I have carried out the duties of a trusteein the circumstances. This interpretive dimension of legal practice is manifested, asHart put it, in the use of rules to guide and evaluate conduct.

In the final two sections of the paper, the implications of the interpretive characterof law for legal inquiry will be examined. The principal purpose of the final twosections will be to argue that it is important to accept that there not only may be butthat there ought to be a diversity of ways of understanding and interpreting law. Inparticular, I will argue that it is important to distinguish between a practical or criticalmode and a theoretical mode of understanding in this respect, a distinction whichbroadly maps on to what is generally described as the distinction between descriptionand evaluation. In s 2, I will see how Hart’s understanding of legal theory provides uswith a set of clues for how we might understand legal theory as a distinctive type oflegal research. The distinctive nature of practical or critical legal research is thesubject of the discussion in s 3. Section 3 develops a critical interpretation of RonaldDworkin’s ‘interpretivist’ conception of legal theory, an interpretation which rein-forces the importance of distinguishing between theoretical inquiry into law and morepractical or critical activities of interpretation.

1. THE NATURALISATION OF JURISPRUDENCE

Brian Leiter’s case for ‘naturalising’ jurisprudence is premised on the idea that, forpragmatic reasons (‘coping’ and ‘predicting’), philosophy in general (and thus itsjurisprudential subdivision) must be elaborated on the basis of a world-view ‘continu-ous’ with the empirical sciences (here he has in mind primarily natural science andempirical social science). Leiter himself offers the following statement of this ‘natu-ralistic’ conception of the philosophical enterprise: ‘to illuminate philosophical ques-tions about knowledge, mind, and moral motivation (among many other topics), itwould be necessary for philosophy to proceed in tandem with the sciences, acting as

1. B Leiter Naturalising Jurisprudence (Oxford: Oxford University Press, 2007).

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© 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars

the abstract, reflective, and synthetic branch of empirical science’.2 In this section,Leiter’s core argument will be outlined, following which two core features of hisargument will be examined in more detail: first, the coherence of the very notion of anaturalised philosophy itself and, secondly, the claim to the priority of the natural andempirical sciences.

The first question to be examined in this section is therefore: how does Leiter arriveat this ‘naturalistic’ conception of philosophical inquiry and, by extension, legaltheory? Leiter arrives at this conclusion primarily as a result of his interpretation of theimplications of the work of WVO Quine. For Leiter, Quine’s work contains twoimportant insights. The first of these is the rejection of the distinction between analyticand synthetic statements; that is, statements which are true by virtue of their meaning(analytic statements) and statements which are true by virtue of experience (syntheticstatements). The rejection of this distinction involved the idea that all statements were‘synthetic’; namely, true on the basis of ‘experience’. The demise of the analytic–synthetic distinction meant that the only legitimate questions that could be raised werequestions which could be tested by experience: questions that could be raised andanswered within the modes of understanding associated with the natural sciences. Theupshot, as Leiter describes it, is that philosophical understanding, which once con-cerned itself with unpacking analytic truths, finds itself effectively assimilated intoempirical scientific inquiry. The second component of Quine’s work Leiter highlightsis the way in which meaning holism undercuts the distinctively philosophical projectof providing an epistemological foundation for the natural sciences. As Leiter puts it,according to Quine’s conception of meaning holism, ‘theoretical terms get theirmeanings from their place in the whole theoretical framework, not in virtue of somepoint-by-point contact with sensory input’.3 Meaning holism therefore entails therejection of the idea that a particular theoretical framework can be seen as founded onany set of fundamental propositions. Scientific theory, its epistemic norms and itsconceptual terms hang together as a whole and it changes in a piecemeal fashion. AsLeiter points out, however, meaning holism does not imply that there are no epistemicnorms but that philosophy will play no role in supplying them; instead, such norms aregenerated by the quotidian process of scientific inquiry.

Where does this leave philosophical inquiry, deprived as it now is of any founda-tional role in relation to the natural or empirical sciences as a result of ‘meaningholism’? The residual role of philosophy in the Quine-Leiter account we are exam-ining seems to be to reflect on the presuppositions or implications of empiricalscientific modes of inquiry. But why is philosophy linked so closely to empiricalscientific modes of inquiry in this fashion? According to Leiter, the answer lies in thepriority of the mode of understanding associated with the natural science and empiri-cal social science. Crucially, this priority derives, not from any theoretical consider-ations but from practical or pragmatic considerations which make this point of viewinescapable. Humans are said to have an overriding interest in anticipating andcontrolling the future course of experience. Science, from this point of view, is themode of understanding that has ‘delivered the goods’ in this respect and given thefoundational importance and, it would seem according to this account, the inescapablenature of the human interest in ‘anticipating the future course of events’, naturalscience and empirical social science inevitably become the uniquely appropriatereflective media for human engagement with the world. In describing this as the claim

2. Ibid, p 3.3. Ibid, p 145.

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that the scientific mode of understanding is inescapable or primordial, I have gonebeyond Quine’s and indeed Leiter’s wording of this point. Leiter, for example,describes these pragmatic considerations as ‘justifying’ the priority of the scientificmode of inquiry. However, this choice of terminology seems somewhat unfortunategiven that justification is primarily identified with philosophical inquiry, albeit withphilosophy in its defunct ‘foundational’ mode. An alternative description of the way inwhich pragmatic considerations underpin the priority of natural and social science isphrased as follows: the interest in anticipating the course of future events ‘puts us all“within” science as it were’.4 The inescapability or primordial nature of the scientificmode of understanding would seem to be a more focused way of characterising theclaim being made at this point.

All these claims associated with the development and explanation of this ‘natura-lised’ conception of philosophy and the world view associated with the scientific modeof inquiry might be regarded as philosophical in a more general and distinctive sense.For Leiter, these claims exemplify the sort of ‘naturalised philosophy’ which iscontinuous with the natural sciences. As we shall see, however, it is not clear thatphilosophical thinking can be satisfactorily characterised in this manner. In whatfollows, I will try to show that it is a form of interpretive or reflective thinking thatescapes the apparently primordial imperative to ‘cope’ and ‘predict’ and is distinctfrom the modes of thinking characteristic of natural science or empirical socialscience. As a prelude to vindicating the idea that there exists a distinctive reflectivemode of thinking irreducible to natural scientific or empirical research, I would like toattempt to engage with the claim that is made as to the priority of the mode ofunderstanding associated with the natural sciences or, as Leiter’s later discussionsmake clear, the broader notion of the empirical sciences. Before engaging with thequestion of the priority of scientific thinking, a crucial point needs to be madeconcerning the coherence of the very notion of a ‘naturalised’ philosophy.

The central problem is that Leiter does not seem to offer any substantial or definiteunderstanding of the role of ‘naturalised’ philosophical reflection. Indeed, it seemsthat what he is suggesting is that any further, distinctively philosophical, reflection isotiose – we simply ‘rely’ on the practices of the natural sciences in order to carry outour practical purposes. In that sense, the idea of a ‘naturalised’ philosophy seems to besomething of a contradiction in terms. Insofar as it has been ‘naturalised’, that is,insofar as philosophical thinking incorporates itself into the web of belief and actiongenerated by the on-going activity of the diverse forms of scientific research, it is hardto see what specific role it might be said to undertake in this field. In discussing hisunderstanding of the role played by philosophy within this area of research, Leiterstates that philosophy should be seen as the ‘abstract, reflective and synthetic’ branchof science.5 It is, however, not clear that scientific inquiry, if we take meaning holismseriously, can be seen as composed of distinctive branches with certain of them beingmore or less abstract than others. The point of meaning holism, and the conception ofa practice of inquiry as a ‘web’ of belief or as ‘a boat built at sea’ (to use themetaphorical descriptions of meaning holism), seems to be to emphasise the inter-connectedness of scientific concepts and beliefs. On this view (which Leiterendorses), it would appear that ‘more or less’ abstract beliefs cannot be isolated by‘philosophical reflection’ from more detailed practices of inquiry without distortingthe nature of the inquiry in question. In this context, it is unclear why any further

4. Ibid, p 148.5. Ibid, p 3.



activity of philosophical clarification and elaboration of the account of physicalprocesses and realities generated by scientific practices is relevant or meaningful sofar as the scientific mode of understanding is concerned. If more old-fashionednaturalistically inclined philosophers mistakenly saw themselves as a midwife tonatural science, the ‘naturalised’ philosopher seems to be more like a visiting relative– a benign but useless presence arriving after the birth has taken place to marvel at theevents.

We now arrive at the crucial question: is the complete neutralisation of philoso-phy within an undifferentiated and generic reflective activity of predicting and con-trolling the future thus inevitable?6 Providing an answer to this question entailsengaging with Leiter’s principal claim that our thinking must necessarily take placewithin the context of empirical scientific research (the claim to the priority of thescientific mode of thinking). The priority of empirical scientific thinking is said tobe based, as we have seen, on the inescapable nature of the human interest inanticipating and controlling future events. Crucially, however, as Leiter acknowl-edges, the distinctive modes of inquiry characteristic of the empirical sciencesconsist of epistemic norms which have nothing, per se, to do with the desire to copewith one’s environment. As he makes clear in his discussion of (what Leiter arguesis) Dennis Patterson’s misinterpretation of Quine’s work on this point, the actualepistemic norms characteristic of scientific inquiry should not themselves be seenas answering to any such pragmatic needs. Quine’s understanding of truth is whatis termed a disquotational correspondence conception of truth rather than a‘pragmatic’ conception of truth.7

The above point has a number of implications. First, there is no reason to think thatscientific inquiry will completely satisfy the desire to anticipate and, in particular,control future events given that scientific inquiry has its own epistemic norms whichare not answerable to any pragmatic imperatives imposed from outside. It is certainlythe case that scientific inquiry, more than any other mode of inquiry, has proven itself

6. I have used the term ‘generic’ for these disciplined activities of prediction and controlbecause Leiter himself puts natural science and empirical social science into the same epistemicbox, as it were. He does this because both forms of inquiry have provided, in Leiter’s view, thebest available ways of predicting and controlling, of coping, with the world. Boxing the twotogether in this way is arguably an act of legerdemain on Leiter’s part, in that the differenceshere seem to be more important than the similarities. First, there are clearly differences betweenthe methods employed by natural and social science and there are also important differences asregards the reality postulated by these different modes of inquiry: atoms and preferences,molecules and markets. Secondly, it also seems that whereas natural science’s predictivepotential has been successfully, albeit sometimes dangerously, harnessed for coping purposes(things have got out of control), social science’s potency in this respect has not been as clear,even if its application to social reality has often been just as risky. Finally, we might say, andthis argument is developed later in the main body of the paper, that both empirical social scienceand natural science are distinctive types of activity and it is misleading, certainly in the case ofnatural science, to understand them in relation to wider and diffuse categories of action likeprediction and control.7. A brief and simplified account of the ‘disquotational’ theory of truth might be given asfollows: current scientific practice provides us with a particular account of external reality, wecan make assertions about such reality and, insofar as we make such assertions, they areimplicitly asserted as true. In this sense, there is a need to place such an assertion ‘in quota-tions’, as it were, and provide a separate philosophical justification for attaching the separatepredicate ‘is true’ to it. For these points, see Leiter, above n 1, p 147.



capable of satisfying such pragmatic needs to a certain extent, but it must, neverthe-less, be acknowledged that the fit has been in no way perfect. Such considerations, inturn, imply a potential disjunction between the unqualified practical attitude of‘coping and predicting’ and the practice of scientific inquiry, which undermines theidea that scientific inquiry can be seen as a straightforward extension of the practicalattitude. A particular issue arises in cases where there is a dramatic gulf between whatscientific inquiry can deliver in terms of certainty and predictability and the degree ofcertainty which the agent may hope to attain in carrying out their purposes. In suchcases, the practical concern with predictability and control may subside when facedwith a certain degree of frustration or disappointment. At such a point, a range ofalternative and contrasting attitudes may emerge such as, for example, the Stoicattitude of apatheia. Indeed, it seems that such attitudes are more likely to give rise tomore complex and refined forms of reflection, like philosophy and the naturalsciences, than the narrowly focused pragmatic concern with prediction and control.A second implication derives from the fact that science is itself a practical activity.Insofar as its participants are engaged in the scientific enterprise, they must distancethemselves from any immediate connection with the pragmatic need to anticipate andcontrol and, instead, concern themselves solely with the norms of inquiry appropriatein their field of research. The fact that science is a flourishing practice suggests that itis indeed possible for scientific practitioners to distance themselves from any imme-diate and broader pragmatic interest in anticipation and control. At the very least, itseems possible for them to adopt the additional stance of concerned interest inadvancing the norms of scientific inquiry, a stance involving a distinctive and specificset of commitments and interests.

What the above considerations indicate then is that neither the practical interest inanticipation and control nor the connection between that attitude and scientific inquiryis as decisive as Leiter supposes. Developing any comprehensive understanding ofwhat other attitudes toward the world are possible and how such attitudes connect withother modes of inquiry and how they are interrelated is beyond the scope of this paper.The important point is that there would be appear to be a certain amount of room forsuch attitudes and modes of inquiry, for example historical inquiry and interpretiveanthropology, to develop and flourish. In other words, contra Leiter, there are enoughquestions for what might be termed non-naturalised legal philosophical reflection toask and perhaps answer in its own way. In the second section, we will turn to considerthis issue of the distinctive methods of ‘non-naturalised’ legal philosophy or legaltheory.

2. THE DISTINCTIVE CHARACTER OF LEGAL THEORY

In a certain sense, Leiter’s proposal for a ‘naturalised’ jurisprudence, a legal theoryintimately connected with an empirical science understood in pragmatic terms, seemsto mark a return to one of the signal features of nineteenth century jurisprudence. Fornineteenth century jurists like Bentham and Austin, the science of jurisprudence,despite internal subdivisions, or more or less abstract components, was essentially onetype of practice/inquiry. For Bentham, expository jurisprudence, including legal phi-losophy in the strict sense, formed a prelude to a critical jurisprudence based uponutilitarian moral philosophy. This link between the descriptive and the critical alsocharacterised the work of John Austin, although the descriptive or analytical elementof his work tended to be elaborated in more detail and given greater emphasis in his



own work and especially in the reception and influence of that work.8 In this section,I will try to show how the Victorian understanding of the essential unity of thejurisprudential enterprise, which Leiter’s conception of ‘naturalised’ jurisprudencewould restore, albeit in a new form, was ultimately successfully undermined. Inparticular, I will argue that HLA Hart demonstrated the gains in understanding to bemade by employing a clear and distinctive conception of legal philosophy.

The (precarious) unity of jurisprudential method established by utilitarian juris-prudence – of pragmatism, empirical science and legal dogmatics – was fundamen-tally shattered by HLA Hart’s book The Concept of Law.9 What Hart’s work sought todraw attention to was that John Austin’s theory of law could not be seen as anadequate philosophical interpretation of law insofar as it ignored what Hart describedas the ‘internal’ dimensions of legal practice, the way in which the law establishedrules used by participants in the practice to guide and evaluate their conduct. Austin’snotion of law as a generalised type of ‘command’, an injunction addressed by asuperior to an inferior and accompanied by a sanction, failed to account for the waylaw functioned as an evaluative standard capable of being adopted by those subject toit for guiding and criticising their conduct (albeit from a strictly legal standpoint). Putin more general terms, Hart’s work can be said, through explaining the internaldimension of legal practice, to have drawn attention to the interpretive nature of legalpractice. The interpretive dimension of legal practice might be understood in thefollowing manner: the standards, rules and so on constitutive of legal order derive theirmeaning from the role they play in the practical understanding of legal officials andsubjects. In other words, the fundamental way legal rules exist as legal rules isprecisely insofar as legal subjects and officials have intelligent dealings with them andthey deal with them by using the rules to interpret conduct, in using rules to, forexample, guide and evaluate conduct.

Hart’s refutation of Austin, though apparently a superficial tidying up exercise, infact involved a root-and-branch recasting of jurisprudential methodology.Austin wouldhave understood that there was an internal dimension to legal rules but would havechosen to exclude this element from his theoretical account of law. As John Finnis putsit, Hart’s critique ‘attributes to oversight or muddle much that Austin understood wellbut was obliged, by his (vulnerable) method and definitions, to exclude from “analyticaljurisprudence”’.10 The crucial point that emerges from Hart’s critique of Austinianjurisprudence is its relationship to deeper issues surrounding the methodology under-pinning the theoretical understanding of law as an interpretive social practice.

The internal or evaluative dimension of law as an interpretive social practicedemonstrated its similarity but not identity with morality and showed that law poten-tially involved more than just a form of institutionalised coercion and command. ForAustin, refining Bentham’s conception of law, however, this was indeed law’s mostimportant feature. Such a ‘command’ theory of law directed a critical utilitarianscience of legislation towards its proper task: a close examination of the putativebenefits to be supplied by the application of legal coercion. By contrast, Hart’sconception of law resulted from his sense that legal theory ought to be concernedsolely with clarifying the practice of law. In order to be capable of conceptualising law

8. See M Lobban The Common Law and English Jurisprudence (Oxford: Clarendon Press,1991).9. HLA Hart The Concept of Law (Oxford: Clarendon Press, 2nd edn, 1994).10. J Finnis ‘John Austin’ in T Honderich (ed) The Oxford Companion to Philosophy (Oxford:Oxford University Press, 2005).



understood as the interpretive activity of legal officials and subjects within a municipallegal system, a simplified definitional approach to analytical legal theory, likeAustin’s, could not suffice. A definition of law, picking out only certain of thecommon characteristics implied in the use of the term law, needed to be replaced bya legal theory capable of conceptualising the complex set of features underpinninglegal practice.11

As compared to Austin, then, it is arguable that Hart’s non-definitional conceptionof legal theory presupposes an understanding of the philosophical analysis of law asa distinctive and independent type of inquiry. If Austin may be interpreted as theo-rising legal practice using a selected definition of law, a definition selected with theoverall practical and critical concerns of utilitarian legal science in mind, Hart’scrucial insight was that such practically orientated theory resulted in the distortionand occlusion of certain dimensions of legal practice, which a more independent formof philosophical reflection was able to locate and clarify. In this respect, we might inretrospect argue that the Hartian enterprise is best re-stated as an inquiry into themeaning of the background features of a typical municipal legal system. As a philo-sophical inquiry, it attempts to offer a conceptual account of such features capable ofclarifying them and drawing attention to their interrelationship. We might say, usinga terminology employed by Oakeshott and Collingwood, respectively, that philosophi-cal inquiry in this context seeks to clarify the background features underpinning thesocial meaning of legal practice in terms of a set of postulates or presuppositions.12

In this sense, Hart may be understood as theorising law as a practice consisting ofrules, one of the principal characteristics of which (their internal dimension) was thatthey provided standards in relation to which participants could guide and criticiseconduct.13 In addition, law was an organised system of rules consisting of a union ofprimary rules of conduct and secondary rules concerned with the establishment ofinstitutions for adjudicating conformity with primary rules and rules for changing

11. See Hart, above n 9, pp 13–17.12. See M Oakeshott On Human Conduct (Oxford: Clarendon Press, 1975) pt I and RGCollingwood An Essay on Metaphysics (Oxford: Oxford University Press, 1940) pts I, II, IV andV and R Martin (ed) ‘Introduction’ in RG Collingwood An Essay on Metaphysics (Oxford:Oxford University Press, 3rd edn, 2002). It should be noted that the use of terminology like‘presuppositions’ and ‘postulates’ in this context may give rise to misunderstanding. Thosefamiliar with Hart’s work will recall that in ch six of the Concept of Law, above n 9, Hart discussesthe pivotal concept of the rule of recognition. In a footnote to that chapter (p 292) entitled ‘Ruleof recognition and Kelsen’s “basic norm”’, Hart insists on the point that the question ‘whether arule of recognition exists and what its content is . . . is regarded as an empirical, though complex,question of fact’ (p 292). Later, he states that Kelsen’s ‘terminology classifying the basic norm asa . . . “postulated ultimate rule” . . . obscures, if it is not actually inconsistent with, the pointstressed in this book, viz that the question of what the criteria of validity in any given legal systemare is a question of fact’ (p 293). On the face of it then, it may seem problematic to describe the‘rule of recognition’as a postulate. In effect, however, the crucial point is that for Kelsen the ‘basicnorm’ is postulated or presupposed by ‘juristic consciousness’, whereas a philosophical accountof a ‘postulate’ is supplied by philosophical inquiry as a way of explaining the fact that legalpractice employs an ultimate criterion of legal validity.As Hart rightly insists, legal practice itselfcannot be properly said to ‘postulate’ formally the rule of recognition, but rather to presupposetacitly ‘the fact that the rule of recognition (by reference to which he has tested the validity of theparticular rule) exists as the accepted rule of recognition’ (pp 292–293). It is for legal philosophyto explain this background feature of legal practice through describing and clarifying thepostulate of the rule of recognition.13. See, inter alia, Hart, above n 9, p 255.



primary rules. An examination of the way in which secondary rules operated inpractice revealed that legal officials were bound by a complex set of criteria in theperformance of those official functions involving the identification of valid rules of thesystem.

This set of criteria was characterised as a rule of recognition understood in termsof two principal features.14 First, as the ultimate rule of the legal system, it establishedcriteria of legal validity but could not itself be appropriately understood as a rulederiving its validity from any other rule. Secondly, the criteria of validity it establishedwere supreme in the sense that they could not be overridden by any alternative criteria.Finally, the status of any given example of a rule of recognition as law or social factwas ambiguous in that, in practice, such a rule was capable of being understood fromtwo points of view. On the one hand, its criteria of validity could simply be used byofficials for identifying law. In this case, it would clearly be in operation, albeitwithout its existence being asserted. If, on the other hand, its existence was asserted,this could only amount to an external statement of social fact indicating that aparticular rule, of this general type, was being used in a particular legal system. Hart’sunderstanding of the ambiguity of the rule of recognition reinforces the importance ofinsisting on the nature of the concept of the rule of recognition itself as a postulate oftheoretical inquiry. In the first case Hart identifies, where a given example of a ruleof recognition is in fact being used by legal officials, the rule of recognition is notidentified as such, its ‘existence is not asserted’: the criteria which might later beassigned to it, from an external point of view, are simply being used, as a matter oflegal practice, in the quotidian activities of legal officials to identify valid rules. Wherethe existence of the rule of recognition is asserted, this is done from what Hartdescribes as an ‘external’ point of view; in other words, it is asserted, not from thepoint of view of a participant in legal practice, but in the context of a theoreticalinquiry into legal practice which is seeking to identify the background featuresconstitutive of legal practice. Thus, the ‘rule of recognition’ is never used as a conceptas such; rather, as a concept, it is asserted by theoretical inquiry for the purposes ofclarifying a postulate or presupposition of legal practice.

A final point to note concerns the scope of Hart’s inquiry. Hart, as we have seen,developed a general philosophical understanding of the presuppositions underpinninga ‘municipal legal system’. This evidently provided Hart with a very general object oftheoretical inquiry. It might also be possible to adopt more specific objects of theo-retical inquiry. For example, one might theorise the use of the concept of ‘causality’,as Hart himself did, as well as the use of various other legal concepts like ‘responsi-bility’. Indeed, it seems that insofar as we are concerned with elucidating a practicerather than providing definitions of words, we are necessarily concerned with theconceptual clarification of a specific practice. The key point seems to be that anypractice is appropriate for theoretical examination, provided we are interested inachieving clarity concerning that practice. The principal precondition of theoreticalinquiry in this sense thus seems to be that the object of the inquiry is at least clearlyidentified and delineated; that is to say, a particular field of theoretical inquiry isisolated from the flux of practical affairs. The object thus isolated would not seem tohave to be a general phenomenon in any particular way. The fact, however, that anobject of theoretical inquiry must be isolated from the flux of practical affairs in orderto be brought into focus would imply that theoretical inquiry is not able to grasp legalpractice as such. In other words, theoretical inquiry seems unable to reflect on any

14. Ibid, pp 105–110.



meaning which legal practice may instantiate precisely as a dynamic activity, ratherthan a relatively fixed object of theoretical reflection. In the next section, we willexamine how the on-going meaning of legal practice might be conceived.

3. THE PRACTICAL OR CRITICAL MODE OF LEGAL INQUIRY

Hart’s work had demonstrated the value of insisting upon the distinctive methods andconcerns of a genuinely philosophical jurisprudence in that, unlike Austin, it allowedhim to go beyond the limitations of a stipulative definition and to shed light on thecomplexity of legal practice. If we reflect on the movement, which Hart can be seenas having intensified, toward the differentiation of various modes of inquiry into law,it thus seems crucial to begin to clarify and re-think the relationship between theo-retical inquiry into law (legal philosophy or legal theory) and legal research conceivedin a broader and, in particular, in a more practical and critical sense. An examinationof subsequent, largely critical, interpretation of the Hartian legacy serves to shed lighton some of the deeper methodological issues at stake in this.

Ronald Dworkin’s jurisprudential work, as developed first in Taking Rights Seri-ously and later, more thoroughly and definitively, in Law’s Empire, was an explorationof the ‘internal dimension’ of legal practice opened up by Hart’s work.15 For Dworkin,the inquiry into this dimension of law needed to be understood and carried out in amanner which was far more radical than Hart had attempted. Indeed, for Dworkin, the‘internal point of view’, far from being a mere concept deployed by legal theory toexplain a postulate of legal practice, was to be the starting point for developing a verynew type of legal theory, one which would entail overcoming the distinction betweendescription and evaluation characterising the work of Bentham and Austin and thework of Hart.

For Dworkin, Hart had not been able to appreciate the full force of his insight intothe ‘internal dimension’ of law for the methods of legal philosophy because of hisinsistence on the fundamentally descriptive nature of that discipline. Dworkin’s argu-ment depended on the idea that legal philosophy should not simply describe the‘internal’ dimension of law but should rather adopt it in order to understand legalpractice more profoundly. For Hart, as we have seen, legal practice was characterisedby the way in which participants made use of legal standards to guide and evaluatebehaviour. We might say that Hart elucidated a fundamental feature of legal practice:the way in which law is used to interpret conduct; that is, the way in which the law isbrought to bear on a particular situation so as to be able to understand that situation inlegal terms – to understand the ‘legal position’ as it were. For Dworkin, this interpre-tive dimension of legal practice was of fundamental importance. According to hisconception of ‘law as integrity’, the institution of law was best seen as a way ofensuring that government action, in general, and over the course of a series ofdecisions, was carried out on the basis of a consistent set of principles of politicalmorality. Law is more than a mere form in which a series of arbitrary and unconnectedpolitical decisions can be executed. Instead, Dworkin’s conception of ‘law as integ-rity’ insists that legal practice must ensure that the on-going political action of a givensociety embodies a meaning deriving from principles of political morality whichsupply the best constructive interpretation of the cumulative logic of the sequenceof legal decisions as a whole. Dworkin provides an interesting metaphor for this

15. R Dworkin Law’s Empire (Oxford: Hart, 1998).



interpretive and on-going natural legal practice. He likens it to writing a chain novel.16

Particular contributions never radically re-write the narrative: each new contributionmust express some creative conception of the meaning of the narrative as a whole asit has been accumulated in past contributions. Legal practices, like adjudication, mustbe seen as involved in interpreting law rather than, as in the ‘chain novel’ example,either ‘discovering’ or ‘inventing’ it. The interpretation of law involves, as the analogyof the chain novel is designed to show, elements of discovery and elements of creation.Essentially, an interpretation of law is one which properly extends the implications ofthe existing legal order to a new situation. As we will now see, however, the difficultylies in the details of Dworkin’s account of how exactly this interpretive legal activitytakes place.

For Dworkin, law, as we have seen, is best understood as an ‘interpretive practice’and in Dworkin’s conception of ‘law as integrity’, law achieves its most completeself-understanding as an interpretive practice.17 However, as we will now discuss,Dworkin’s idea of ‘law as integrity’ depends upon an underlying conception of whatan interpretative practice is and how it relates to law. It is this conception of aninterpretive practice and its relationship to law that will now be examined in moredepth. An interpretive practice is, according to the conception Dworkin proposes inLaw’s Empire, one in which the development of the practice is dependent uponparticipants’ conceptions as to its point or purpose. Law, on this view, consists of‘propositions of law’ and ‘grounds of law’.18 All types of legal statements and asser-tions, at whatever level of generality are understood as ‘propositions of law’. A‘proposition of law’ is a statement such as the following, to use Dworkin’s examples:‘the law requires Acme Corporation to compensate John Smith for the injury hesuffered in its employ last February’ and ‘the law forbids states to deny anyone equalprotection within the meaning of the Fourteenth Amendment’. Such ‘propositions oflaw’ can be true or false insofar as they are supported by ‘grounds of law’ – the‘grounds of law’ being various conceptions as to the overall ‘point’ or ‘purpose’ of thelegal practice in question. Dworkin argues that ‘propositions of law’ can be subject to‘empirical’ disagreement where their conformity with a specific ‘ground of law’ is atissue and they can be subject to ‘theoretical disagreement’ where the ‘ground of law’itself is at issue. Thus conceived, it appears that the ‘interpretive nature’ of legalpractice, the way in which all ‘propositions of law’ are subject to competing interpre-tations of the ‘grounds of law’, means that no ‘descriptive’ understanding of such alegal practice is possible. A ‘descriptive’ theory of such a practice is, by definition,disbarred from making any evaluation of the point of the practice. As such, it cannottherefore supply an account of a fundamental feature of the practice – the ‘grounds oflaw’ – upon which the ‘truth’ of the ‘propositions of law’ are said to rest. An accountof the ‘grounds of law’ can only be supplied by an interpretation of the practice carriedout from a participant’s perspective and in a fully evaluative sense. Legal interpreta-tion is in this respect said to involve three stages: the pre-interpretive, the interpretiveand the post-interpretive. At the pre-interpretive stage, the interpreter would reflect ontheir settled convictions as to the general shape and content of the practice as deter-mined by social convention. At the interpretive stage, a point or purpose wouldbe ascribed to the practice as it was understood at the pre-interpretive stage. Suchan interpretation would have to provide a broad but plausible fit with the

16. Ibid, pp 228–238.17. Ibid, p 226.18. Ibid, pp 4–6.



‘pre-interpretive’ shape and content of the practice, otherwise it would not be aninterpretation of an existing practice but a proposal for engaging in a new one. Thefinal stage, the ‘post-interpretive’, would involve revising and amending the practicein line with the new interpretation.

To sum up, Dworkin’s ‘interpretative’ conception of jurisprudence casts aside thedistinction between ‘description’ and ‘evaluation’. There can, in Dworkin’s view, beno descriptive account of the practice that is not an evaluation of it, and there can beno way of evaluating a practice without, at the same time, offering a particulardescription of it. Any distinction between a ‘general’ and a ‘particular’ jurisprudenceis also redundant. Every particular statement made within a particular legal order,insofar as it rests on a conception of the ‘grounds of law’, is a form of implicitjurisprudence. Likewise, insofar as jurisprudence involves interpretation, it must be aninterpretation of a settled legal practice; it must be addressed to a particular legalorder. Dworkin thus proposes a conception of jurisprudence as, to use his well-knownexpression, the silent prologue to adjudication.

Therefore, according to Dworkin, jurisprudence should not be understood as a‘second-order’ inquiry concerned solely with describing, for purposes of clarification,the postulates or presuppositions of legal practice. It is rather a ‘first-order’ mode ofreflection concerned with providing an interpretation of the legal practice itself. Thus,to recognise the ‘internal dimension’ of legal practice means recognising that law isfundamentally an ‘interpretive’ practice and that legal philosophy, understood as thetheoretical interpretation of law, needs to become a participant in that practice in orderto provide a characterisation of the practice itself. For the legal philosopher to refrainfrom this ‘interpretive’ engagement for the sake of preserving the ‘descriptive’ char-acter of his enterprise would mean, given the interpretive nature of legal practice,sacrificing an understanding of the practice itself for a generalised and unfocusedanalysis of the various interpretations of the practice offered by its participants. In sodoing, Dworkin thus proposes a radically unified conception of legal inquiry, aninterpretive jurisprudence, which has moved beyond any distinction between thegeneral and the particular, the descriptive and evaluative and the doctrinal and thetheoretical.

It might be said however that Dworkin’s unified conception of legal inquiry rests ona failure to distinguish carefully between two different varieties of interpretiveengagement with law: the theoretical and the practical or critical. For Dworkin, thealternatives appear to lie between an unsatisfactory descriptive jurisprudence, unableto offer any characterisation of the practice itself, and, in particular, the ‘grounds oflaw’ and his own, engaged understanding of jurisprudence, an ‘interpretive’ activitycapable, as we have seen, in the same reflective act, of evaluating a practice andproviding an appropriate characterisation of it. What Dworkin’s argument possiblyoverlooks is that theoretical inquiry into law is constituted precisely by its disengage-ment from legal practice itself. Its understanding of the practice is not that of theparticipant concerned with ‘taking it up’ and carrying it on in terms of their ownunderstanding of the practice itself as a dynamic and mutable form of social practice.Instead, a legal theorist can be seen as ‘standing back’ and offering an account of themeaning of the various background features underpinning legal practice as an abstractidentity rather than as a project in which the theorist, as such, is involved. As we haveseen, we might usefully interpret Hart’s Concept of Law in these terms. Thus, ideasconcerning the ‘internal dimension’ of the legal rule, the union of primary andsecondary rules and the rule of recognition might be seen as describing the postulatesor presuppositions, the background features, of legal practice. As I have tried to show



in my discussion of the rule of recognition’s ambiguous character, there is an impor-tant distinction to be made between the postulates of a practice as they are revealed bytheoretical inquiry and any interpretive practices which in fact form part of theparticular legal practice in question. Thus, the ‘rule of recognition’ is a theoreticalconcept proposed as a way of clarifying an important constitutive feature, a postulate,of a typical municipal legal order: it is not, in and of itself, an element in the socialpractice which it describes. Legal theory is, in a sense, like the grammar book of thelanguage of law as an on-going social practice. A grammar book clarifies the back-ground ‘rules’ of a language but the grammar book cannot, as such, legislate directlyfor the development of the practice This analogy also highlights the point that atheoretical investigation is only as good as the theorist’s practical understanding ofwhat is theorised. A grammar book written by one who has not mastered a languagewould be worse than useless.

Dworkin might object at this point that the philosophical study of law has simplyconjured its distinctive objects, its ‘background features’, ‘presuppositions’ and its‘postulates’ into existence. What we need to know is what the ‘grounds of law’ areinstead of being supplied with a philosophical description of their ‘postulates’. Insofaras theory is concerned with achieving clarity rather than with the sort of practicalquestions Dworkin wants answered, it is an inquiry of a different sort and in certaincircumstances it might be the right thing to do to just ‘get on with it’. The danger is,however, to assume that we can just get on with practice and that we do not need thesort of clarity theory can supply. Arguably, genuine theoretical inquiry into law of thesort Hart pioneered is indispensable to practice, insofar as it is seeking to achieveclarity, to ‘get its bearings’ or, even more importantly, if it is attempting to show thefly the way out of the bottle. For example, it would seem that Dworkin does indeedtake up the tools of theoretical inquiry, without necessarily acknowledging this, whenhe is seeking to clarify the interpretive character of legal practice. Thus, Dworkinprovides a theoretical interpretation of the ‘presuppositions’ of a legal practice interms of ‘propositions of law’, ‘grounds of law’, ‘theoretical and empirical disagree-ment’, ‘conceptions of purpose and point’, ‘dimensions of fit’, ‘stages of interpreta-tion’ and so on. Furthermore, and as we will explore in more detail below, the natureof social practice as a dynamic and on-going mode of existence means that theparticipant’s understanding of it cannot be properly grasped in terms of any fixedconstitutive features like the ‘grounds of law’. In other words, law, as a social practice,is best seen as a dynamic way of life rather than something produced to order byfollowing a theoretically generated recipe book, no matter how edifying.

It therefore seems that the activity of understanding legal practice is necessarilydifferentiated, consisting of a theoretical mode and what might be described as atype of critical or practical mode. The problem now is to understand the nature ofthis practical or critical mode of legal research, given that it ought to be very dif-ferent from a philosophical or theoretical inquiry into law. Dworkin’s ‘interpretivist’understanding of jurisprudence provides a useful starting point from which to startre-thinking this issue. Here, as we have indicated, the difficulty arguably relates tothe way in which Dworkin introduces an excessively theoretical slant to practical orcritical legal research. The difficulty in question involves the combination of histheoretical characterisation of the ‘interpretive’ or ‘internal’ dimension of legal prac-tice and his (implicit) assumption that this theoretical conception of law ought tostructure the way in which participants in legal practice go about their activities.This seems to involve a serious misunderstanding of the nature of legal practice asan interpretive activity.



The central problem is arguably Dworkin’s understanding of legal interpretiveactivity itself insofar as it sees such activity as involving the correlation of ‘grounds oflaw’ to ‘propositions’. In particular, the difficulty seems to stem from Dworkin’sconception of legal activity as consisting of ‘propositions of law’, propositions whichare either true or false in relation to how they stand with the ‘grounds of law’. Thisseems however to be a somewhat distorted understanding of the interpretive attitudetowards the law. It seems that a genuinely interpretive legal practice would insteadconsist of a range of appropriate responses to legal rules and standards rather than ofvarious statements – propositions of law – made about the practice. Such responseswould not be true or false but would simply be the right or the wrong thing to do orsay in the particular context. To adopt a (borrowed) philosophical turn of phrase tomake this point, legal activity, undertaken from the ‘internal’ point of view, is bestunderstood as a ‘performance’ which ought to be seen as felicitous (or not) rather than‘true’ or ‘false’.19 As actions undertaken in the context of complex situations theyarguably depend, not only on a knowledge of any explicitly formulated standardsrelevant to continuing the practice, but also on a practical form of ‘know-how’concerning such standards and which consists in the ability to bring them to bear onthe agent’s situation. In this way, a legal system sustained by the interpretive attitudeis a way of life, a complex on-going performance. A genuine practical interpretiveattitude to law would thus reject Dworkin’s view that philosophical or theoreticalinquiry into law can yield anything other than a description of the ‘postulates’ of legalpractice and certainly not the foundation stone of law’s empire. Adjudication can haveno elaborate prologue cancelling the tragic drama of judgment – and, in many cases,what that drama does not say will be as important as what it does say.

So far we have spoken of a critical or practical alternative to theoretical inquiry.Having drawn attention to the dynamic nature of the legal order sustained by theinterpretive attitude, we are now in a position to clarify the character of practical orcritical legal research as opposed to legal theory or philosophy. The key to this modeof legal research is that, unlike legal theory, it adopts, like Dworkin, a participant’spoint of view in order to understand and interpret the law. However, unlike Dworkin,the law is not seen as consisting of ‘grounds’ and ‘propositions’ of law. Rather, in linewith the critique of Dworkin which we developed above, law is best seen primarily asa practice which consists of the attempt to bring the meaning of the legal order as awhole to bear on a particular situation. Law is thus not seen as consisting of propo-sitions but rather of activities: enacting statutes, invalidating them, observing theirrequirements; awarding damages and forming contracts, executing them, breachingthem and so on. Such activities and performances might be carried out both byadjudicative bodies, by ordinary legal agents in their day-to-day activities and, as weshall see, through legal research.

Legal research in the context of such an understanding of legal order might be seenas a very specific type of legal performance or activity consisting of two related butdistinguishable elements. First, there is what might be described as the doctrinalelement. The doctrinal element of legal research might be understood as the evaluativecharacterisation of the presuppositions underpinning the exercise of legal judgment inthe context of a particular legal practice. In particular, legal research will seek toexplain, organise and characterise the understanding of the legal order upon which aparticular adjudicative or official decision rests. This activity of organised evaluative

19. See JL Austin ‘Performative utterances’ in JO Urmson and JG Warnock PhilosophicalPapers (Oxford: Clarendon Press, 2nd edn, 1970).



characterisation is made possible by what might be termed the more critical orpractical element of legal research. Accordingly, the way in which the law has beeninterpreted, applied or stated in a particular or typical situation or in a range of suchsituations is re-assessed by the researcher and the researcher makes a judgment aboutit for themselves. This practical or critical activity, the judgment made by theresearcher of a particular situation, forms the basis for the criticisms that may be madeof the understanding of the law implied by certain judicial or official decisions andactions. This critical element underpins the sense in which legal research, when givena full doctrinal exposition, can itself be seen as a distinctive type of legal action orperformance, albeit one which is neither that of a legal official nor that of a legalsubject. The ability to supply this critical perspective on the creation, application andinterpretation of law depends precisely on being able to take up a practically orien-tated rather than a purely theoretical position on how legal decisions should be madein a particular situation. In sum, legal research in its practical or critical modes mightbe seen as generating a grammar of legal practice, intended as clarificatory but also,and crucially, as binding.

Finally, it is important to note that the critical judgment made by the researchermay further suggest, beyond doctrinal analysis, certain reforms, changes and so on tobe made to the body of legal rules in question. More radically and more comprehen-sively, legal research might also seek to characterise a legal practice as a whole on thebasis of the very understanding of legal ordering which it embodies. One might, forexample, criticise a legal order informed by a Dworkinian conception of adjudicationalong the lines of the above discussion. This further elaboration of the critical judg-ment made by legal research might be characterised as constitutional theory.

CONCLUSION

To sum up, prediction and control are not the only conceivable forms of humanactivity and, thus, we can seek to theorise about the law, evaluate its implications in aparticular instance and potentially evaluate a particular legal practice as a whole andeven the very practice of legal ordering itself. Crucially, it is important to acknowledgethat to advocate the differentiation of various forms of inquiry into law is not tomandate an irresponsible proliferation of idiosyncratic methods and ‘perspectives’.Each of the modes of legal inquiry outlined is the result of undertaking a responsibleposition on interpreting and reflecting on legal practice. Theoretical inquiry is con-cerned with clarity and defines its objects accordingly, and legal research in thebroader practical and critical sense must take up a practical or critical position forwhich it remains accountable. Further, the differentiation of different modes of legalinquiry need not mean that there are no connections to be drawn between them. Forexample, as we have seen, theoretical inquiry into law contributes to more practicalforms of reflection insofar as it sheds light on important phenomena and unties theconceptual knots within which practical activity may find itself caught. In this respect,it should be noted that we might be able to untie such conceptual notes at both verygeneral and very particular levels. For example, we might use theoretical inquiry toelucidate concepts and identities like ‘law’ and ‘causation’, as well as concepts like‘consideration’ and ‘direct effect’, for example. In addition, we might explore aparticular legal judgment or official decision in theoretical terms in order to providethe clarity we need to make an adequate evaluative characterisation of it. We mightalso say that some form of practical engagement with, or relationship to, a practice is



needed in order to specify an appropriate delineated identity (for example ‘causality’,‘private law’, etc) whose theoretical postulates may be explored – the idea that oneneeds to be able to speak a language to write about its grammar.

Finally, the realisation that our thinking about law need not be constrained by anynecessary instrumental limitations deriving from any supposed fundamental humaninterest in control and prediction is in itself significant. It may help us to avoid walkinginto an ‘iron cage’ of governance and regulation lured by the illusion that we willthereby be equipped to ‘cope’ with reality.



Documents

The nature of law as an interpretive practice and its associated modes of inquiry