For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?” What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis). By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.
The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core. Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law. However, one should not be too quick to blame the teachers (or coursebook editors). Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made. Continue reading "Methodology in Jurisprudence"