Research On Issues Of Methodology In Neo-analytical Jurisprudence

The debates upon issues of methodology in Neo-analytical jurisprudence have become the core point, which make the point turn from"what is law"to"what a legal theory is and how to construct legal theory". In fact, Neo-analytical jurisprudence has to face to the relevant turn. Therefore, focusing on the debates in methodology can not only advance our understanding of method of constructing legal theory, but also reflect the approaches of Hart's descriptivist, Dworkin's interpretivst, and Leiter's naturalism. Also, we can open the room for Neo-analytical jurisprudence's future as well as rethinking the end of the construction of a legal theory. The dissertation begins from the"descriptive jurisprudence"put forward by H. L.A. Hart in his famous book, The Concept of Law, which established the descriptive approach of methodology and the method of conceptual analysis, and then, it will clear up the debates aroused by these two methods. After reflecting the efficiency and the limits of these representative approaches of methodology, I think that we should focus on understanding legal phenomenon and resolving the problems in legal practice.The whole dissertation consists of five chapters, in addition to the introduction. They are Hart's descriptivist approach of methodology, Dworkin's interpretivist approach of methodology, legal theory and moral evaluation, naturalistic turn in jurisprudence, and rethinking the debates on methodology in Neo-analytical jurisprudence.Chapter 1 is the introduction of the whole dissertation, which concludes the confirmation of the subject, the status of the research, the limitation of the thesis, and the approach of the discussion and the framework of the dissertation's structure. The dissertation points out, to trace and rethink the debates upon the methodology in Neo-analytical jurisprudence has great importance for both considering the method of constructing a legal theory and turning of Neo-analytical jurisprudence itself. Chapter 2 discusses the origin of the debates on methodology, that is, descriptive approach of methodology with the premise of conceptual analysis, which is aroused by Hart's descriptive jurisprudence. I have discussed that how Hart ascertain his descriptive approach at first, and analyze the central features of law through the descriptive conceptual analysis, including the mode of rules, the insight of internal point of view, and observer's position of observation who is outside the legal system. The dissertation points out that, on the one hand, the conception of rule is the leading concept in Hart's explaining what law is, and Hart treats the combination of primary rules and secondary rules as the core feature of a legal system and the rule of recognition is the basis of the legal system. On the other hand, internal aspect of rules is the core insight of Hart's legal theory, which arises the debates on the question of how to construct a legal theory.Chapter 3 discusses Dworkin's interpretivist approach of methodology, which criticizes Hart's claim of description firstly and lead to the rise of the debates. Dworkin's interpretivist approach of methodology concludes two theses related each other, the claim of semantic sting and the claim of constructive interpretivist. Therefore, this chapter discusses how Dworkin achieved his claim of interpretivist approach of methodology through the two these above. I point out that Dworkin tries to justify his own claim by criticizing criterial semantics. For the criterial semantics has been proved failed, descriptive jurisprudence is impossible accordingly, and we should construct a kind of normative jurisprudence through the interpretivist approach. In the end of this chapter, I examine Hart's reply to Dworkin and the latter's further criticism to the former. So, the difference between Hart and Dworkin is whether we can avoid political values and moral evaluation in the construction of a legal theory.Chapter 4 discusses the further debates on the way of legal theory's construction, including Perry's internalist interpretive approach, Coleman's claims and Julie Dickson's indirectly evaluative theory.Perry focuses on the tension between Hart's two approaches of methodology. Firstly, Hart's description of central features of law is based on evaluative judgment. Secondly, the claim of internal point of view can't justify the failure of Holmes'theory, and in fact, there is more than one kind of internal point of view and which should choose depends on the moral evaluation. Thirdly, Hart's descriptive jurisprudence is proved fail because of his functioning. In the end, Perry draws a conclusion that we should use a modest internalist interpretive approach to construct a legal theory.Coleman criticizes Dworkin's claim and supports Hart's claim. On the one hand, Coleman proves the impossibility of normative jurisprudence, whether semantic sting or the claims of self-conception or weak commendation, and on the other hand, he rethinks Hart's claims of description, internal point of view and functioning, and points out that, it is not necessary for constructing a legal theory to appeal to political values and moral evaluation.Dickson advances a kind of indirectly evaluative theory to point out that, Hart's claim is a kind of such, which recognizes the evaluation in choosing the core features of law but rejects the features we chose are justificatory. Therefore, Dickson's claim is an intermediate one between Perry's and Coleman's.At the end of this chapter, I point that, in fact, the points of view of the three theorists are in the dimension of the debate between Hart and Dworkin, which means they treat the method of conceptual analysis as granted and all are in the tradition of Neo-analytical jurisprudence.Chapter 5 discusses the approach of naturalism which may overthrow all the claims before. The naturalistic turn in jurisprudence comes from Quine's naturalism in philosophy, and introduced by Brian Leiter.Quine's thoughts have wide dimension, so this chapter discusses the two theses around the subject of the dissertation. One is the criticism to the two dogmas of empiricism and the other is the claim of epistemology naturalized. Traditional empiricism insists the dogmas of the analytic/ synthetic distinction and verification theory and reductionism, and Quine has criticized both. With the disappearance of the analytic/ synthetic distinction, the verification theory and reductionism can't be proved justificatory accordingly. As a result, philosophy can't be an independent discipline and become a part of science, and epistemology is be naturalized accordingly.Leiter's contribution is to introduce Quine's naturalism to the domain of jurisprudence. He doesn't only attempt to contribute the debates on methodology by overthrowing the method of conceptual analysis, but also try to apply the theoretical basis for legal realists and to construct a naturalizing jurisprudence. Thus, the dimension of the debates upon methodology has bee enlarged, not only including the relation of moral evaluation and the construction of legal theory, but referring to the legitimacy of conceptual analysis. Chapter 6 is the conclusion of the dissertation, which analyzes and reflects all the methodological claims discussed above, including the possibility of descriptivist, efficiency of naturalism, the problems of conceptual analysis, and the proper methodology of constructing a legal theory. I point out that, on the one hand, Hart's descriptive claim will be failed because he didn't use any empirical method to construct his descriptive jurisprudence and he has a functional incline, and on the other hand, naturalism cant replace conceptual analysis at all, because there are many kinds of conceptual analysis and the naturalism are actually based on conceptual analysis. But what is more important is that, they can also open the room for Neo-analytical jurisprudence. The reason is that the discussion around it has been narrowing, although conceptual analysis has always been the basis of other methods, and this leads Neo-analytical jurisprudence to a pretty pass. Therefore, in the last section, the dissertion suggests that we should focus on the issue of how to construct a legal theory and to discuss the way of constructing a legal theory should go back to the end of better understanding of social and legal practices. And we should introduce experimental sciences advocated by naturalism into the conceptual analysis and combine the methods of conceptual analysis and empirial method, instead of only focusing on the debates on methodology itself. It will not only advance the understanding of legal phenomena and legal practice, but inaugurate an open and new approach of methodology for Neo-analysis jurisprudence in the future.