Beyond the Hart/Dworkin Debate: the Methodology Problem in Jurisprudence *
This chapter begins with a review of the Hart/Dworkin and Hart/Raz debates. It then turns to questions of methodology in jurisprudence. It argues for five propositions: first, that Dworkin's constructive interpretivism presents no pertinent challenge to legal positivism, since it is thoroughly question-begging; second, that the pertinent methodological challenge to positivism comes from Finnis, and that Dworkin himself needs Finnis-style argument to motivate interpretivism; third, that positivists can respond to and (with some qualifications) defeat this methodological challenge; fourth, that positivists can also (with some qualifications) rebut Perry's more recent version of Finnis-style arguments; and fifth, that Dickson's attempt to stake out a position (what she calls ‘indirectly evaluative legal theory’) intermediate between the methodological positivism or descriptivism of Hart and Finnis's position is a failure. Finally, the chapter turns to a larger debate about methodology that has come to the fore in epistemology, philosophy of mind, and ethics. It identifies some possible weaknesses of the descriptivist rebuttal to Finnis and argues for a different way of framing the methodology problem in jurisprudence.
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