The Contemporary Methodological Debate
It has become commonplace to acknowledge that the contemporary agenda of debate on legal theory has taken on a markedly methodological nature in recent decades, particularly in the Anglo-Saxon legal intellectual arena.
Although this methodological trait fed by post-linguistic turn philosophy of language was already present in the works of H. L. A. Hart, I believe it gained new momentum and direction with the publication of the studies of Ronald Dworkin. Dworkin radicalized and deepened some of these methodological topics and took on a leading role in the creation of the legal theoretical agenda of recent decades. The centrality of his work is due not only to its pioneering and the strengh of his criticism, but also to the fact that it can be seen as a response to almost every new viewpoint and to many of the methodological subjects that have gained preeminence, even though it is not limited to this. In this sense, Dworkin’s work not only makes a significant contribution to the construction of today’s legal-theoretical agenda and casts the author as one of the most original thinkers therein, but also sets a paradigm for and illustrates the theoretical-philosophical problems that have been center-stage in recent years.The Dworkinian argument that law is an interpretive concept amounts to one of the great and innovative contributions the American philosopher has introduced into the legal-methodological debate. The view of interpretation that he develops, however, is not to be confused with the hermeneutical approach of Max Weber and Herbert Hart.
One of the hermeneutical approach’s distinctive traits is the importance it assigns to the issue of the meaning of action. Weber, for example, analyzes this issue by using chess as a preferred illustration. In fact, the analogy between law and chess has fascinated many legal theorists, and methodological positivists in particular.
Despite the similarities between Weber’s analysis and Hart’s criticism of his predecessors, there are some differences between them that justify the comparison made in this paper. They concern how both define the meanings of the internal and external meaning of rules-regulated action and of intentionality. The Hartian theory of law is based on an innovative analysis of the concept of r ule and provides new methodological foundations for legal positivism. Notwithstanding, it retains from classic positivism a commitment to some of its basic arguments, particularly its concern with the thesis of the separability of law and morality, and with the descriptive nature of the theory of law. Ronald Dworkin harshly criticizes Hart’s methodological commitments.Several dimensions of the methodological debate in Dworkin’s writings are dispersed across the various stages of the famed Hart-Dworkin debate, which has occupied countless legal theorists in recent decades. I believe that the central themes of the debate are still poorly understood. I believe that the debate established by theses authors, as well as its connection with the contemporary legal theorethical agenda is central for understanding the classic questions concerning the conection between law and morals, the descriptive or normative nature of legal theory and the role of intentionality in interpretative practices of interpretive concepts. Dworkin argues that the analogy between chess and law is misleading and inappropriate, precisely for its inability to capture the interpretive dimension of law. For this reason, he proposes the social practice of courtesy as a better model for understanding law. This shift, which I refer to as “From chess to courtesy,” lies on a deep conceptual and methodological change that separates Dworkin from Hart and many of his predecessors.
Ronald Dworkin builds an interpretive theory of law. To this end, he deepens a conception of interpretation other than Hart’s hermeneutical understanding, although the latter may be seen as a starting point for the former. The distinctive trait of the Dworkin’s concept of interpretation is how, on analyzing interpretive practices such as “courtesy”, the theorist poses new and mighty challenges for his contemporaries. For Dworkin, interpretation, as a creative and reconstructive endeavor, rather than “conversational” interpretation, or one intended to merely identify the agents’ subjective intent, is the best means to understanding the nature of law.
For Dworkin, the correct understanding or grammar in our use of language is a vital endeavor to both prevent philosophical misunderstandings and to view the genealogy of such misunderstandings. On the other hand, distinctions are relevant in practice insofar as they affect how we practice law - in particular, how we interpret it in our everyday practices.
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