PART I: FUNDAMENTAL QUESTIONS Chapter One

Book Project - ‘Elucidating Law’: Copyright © of Julie Dickson, Spring/Summer 2017

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PART I: FUNDAMENTAL QUESTIONS

Chapter One:

Elucidating Law: Legal Philosophy in Prospect

‘There are two kinds of light - the glow that illumines, and the glare that obscures.’1

James Thurber

1. Introduction: the ‘philosophy of legal philosophy’

What do we do when we do legal philosophy? This book explores this question, and develops and

defends my own response to it. It is my hope and intention that the discussions which follow will

interest and engage students, academics, and indeed anyone who has ever wondered what it is that

1 James Thurber, Lanterns and Lances (Harper, 1961), 146.


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philosophers of law think they are doing, and what it is that they are doing, when they take up their

keyboards in the service of jurisprudential inquiry.2

As soon as this question is considered, however, it disperses into an intriguing array of

manifold and diverse puzzles and challenges concerning what legal philosophy is, and why and how

we ought to engage in it. What are the aims of legal philosophy? What can it hope to achieve? How

should legal philosophers approach and engage with their subject-matter, and what constraints are

incumbent on them as they do so? Which questions does and should the philosophy of law seek to

address? What are its relations with neighbouring disciplines, such as political, moral, and social

philosophy, and are there important sub-divisions of inquiry within the domain of legal philosophy

itself? What is the ‘evidence base’ of legal philosophy? In virtue of what, if anything, might

jurisprudential claims be true or false? What are the criteria of success of legal philosophy, and how

do we know if they have been met? To what extent are different jurisprudential explanations of the

same phenomena compatible? Can there be progress in legal philosophy? Does the discipline have a

finite or a never-ending task? These are deep-rooted and philosophically rich questions. Though I

hope that this book will spur further work on them, the lines of thought explored in the coming

chapters engage only with certain facets of these questions. As will emerge from the account of legal

philosophy which I develop and defend, this is an inevitable, but also a valuable, feature of

jurisprudential inquiry.

Much recent writing in the philosophy of law - some of my own work included - has referred

to the above sorts of questions as methodological in character, and as concerning a part of our

discipline designated ‘the methodology of legal philosophy’ or ‘the methodology of jurisprudence’.3

This terminology, however, may be problematically limiting, and may connote an overly restrictive

view of the ambit, and kind, of questions I am interested in here. Specifically, referring to the

2 I use ‘legal philosophy’, ‘philosophy of law’ and ‘jurisprudence’ interchangeably throughout this book, as I do not believe that these terms demarcate context-independent differences between types of inquiry, a point which is discussed in more depth in chapter 3, sections 1 and 2. I have discussed some aspects of my views on their interchangeability in J Dickson, ‘Ours is a Broad Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry’ (2015) 6 Jurisprudence 207-230, especially those parts of the article engaging critically with Roger Cotterrell’s, ‘Why Jurisprudence Is Not Legal Philosophy’ (2014) 5 Jurisprudence 41. 3 See eg Stephen Perry, ‘Hart’s Methodological Positivism’ in (1998) 4 Legal Theory 427; Brian Leiter, ‘Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence’, (2003) 48 American Journal of Jurisprudence 17; Julie Dickson, ‘Methodology in Jurisprudence: a critical survey’ (2004) 10 Legal Theory 117; Andrew Halpin, ‘The Methodology of Jurisprudence: Thirty Years Off the Point’ (2006) 19 Canadian Journal of Law and Jurisprudence 67; Jules L Coleman, ‘Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence’ (2007) 27 Oxford Journal of Legal Studies (hereafter OJLS) 581.


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‘methodology’ of legal philosophy may give the misleading impression that the relevant inquiries

concern only the way in which legal philosophy ought to be done, rather than encompassing in a

broad sense, inquiry into what legal philosophy is: its aims, criteria of success, evidence base,

constraints and prospects for progress, and indeed how we should determine and understand its

very domain and subject matter. As it is this broader understanding of the relevant questions and

puzzles which I adopt and engage with here, I will refer to this aspect of the discipline as ‘the

philosophy of legal philosophy’4, so far as it is possible to do so. Owing to the established prevalence

of the term ‘methodology’ in the relevant jurisprudential literature and debates, it will likely be

impossible to avoid using this term entirely. No harm should come of this, so long as the remarks

above are borne in mind, and, accordingly, ‘methodology’ is read and understood in the broad sense

just indicated.

Before embarking fully on this venture into the philosophy of legal philosophy, the remainder

of the present chapter expands a little on the title of this book, and in doing so reveals some

important features of my own approach to jurisprudential inquiry. This exploratory discussion of the

character and relevance of elucidating law also introduces several recurring themes of the book, and

provides the reader with a road map indicating what might be encountered on their journey through

it.

2. Why elucidating law?

My choice of the term ‘elucidating’ is pivotal in characterizing the approach to understanding law

that I champion. In selecting this term, and in using it throughout this book, I draw partly on aspects

of its existing usage in philosophical and legal philosophical discourse, but also seek to move beyond

these, and to determine specifically for my own present purposes what I take this term to denote.

As regards existing usage of, and connotations of, ‘elucidating’ and ‘elucidation’ in

philosophical and legal philosophical discourse: while some of these appear - for present purposes -

4 Thanks are due to the ‘Oxford Legal Philosophy’ series editors, Timothy Endicott, John Gardner, and Leslie Green, for encouraging me to think of my work as engaging in the philosophy, rather than the methodology, of legal philosophy. NB although the phrase ‘the philosophy of legal philosophy’ may evoke echoes of Timothy Williamson’s, The Philosophy of Philosophy (Blackwell, Oxford, 2007), and although I am an admirer of that work, I do not intend the phrase to indicate specific commonalities of approach, or of substance, with it.


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to be largely irrelevant,5 others, such as the use of these terms in some works by Peter Strawson, H

L A Hart, and various legal philosophers engaging with and building on Hart’s views, bear some

interesting similarities to the way I understand and employ these terms in this book.

For example, in Analysis and Metaphysics,6 Strawson uses ‘elucidation’ to denote, and to

indicate his support for, an approach to philosophical explanation which eschews what he refers to

as the ‘reductive model’7 of analysis - which involves dismantling complex structures into simpler

elements8 - and which embraces instead a ‘connective model’9 wherein philosophical explanations

of concepts proceed by means of exploring and understanding their place in a complex network of

interlinking concepts.10 My own ‘philosophy of legal philosophy’, wherein multiple questions and

puzzles stand to be illuminated by different shafts of philosophical light, each producing explanations

capable of being mutually supporting and leading to greater understanding of how various aspects

of the phenomena under investigation fit together,11 would appear to have certain affinities with

these ideas. Moreover, Strawson also expresses significant wariness of philosophical explanations

which are excessively revisionist in character, and that result in accounts of familiar phenomena

which stray problematically far from our ordinary thinking about such phenomena.12 As will be

5 For example, the debate concerning what Wittgenstein may or may not have meant by ‘elucidations’ at various points in the Tractatus (L Wittgenstein, Tractatus Logico-Philosophicus , C. K. Ogden (trans.) (Routledge & Kegan Paul, London, 1922)), and whether or not any of his views in this regard carried over to his later philosophy, seems, to me at least, to be too specific to Wittgenstein’s conception of philosophy, and to the internal relations between his earlier and later work, to be of significant use in considering what it is for legal philosophers to elucidate law and why it is important and desirable that they do so. For discussion concerning Wittgenstein’s various uses of ‘elucidations’, see eg PMS Hacker, ‘Frege and Wittgenstein on Elucidations’ (1975) 84 Mind 601; J Conant, ‘Elucidation and Nonsense in Frege and Early Wittgenstein’, in A Crary and R Read (eds.), The New Wittgenstein (Routledge, London, 2000); PMS Hacker, ‘Wittgenstein, Carnap and the New American Wittgensteinians’, (2003) 53 Philosophical Quarterly 1. 6 P Strawson, Analysis and Metaphysics, An Introduction to Philosophy (Oxford University Press (hereafter OUP), Oxford, 1992) especially chapters 1 and 2. 7 ibid 18. 8 ibid chapter 2, especially at 18-19. 9 ibid 21. 10 ibid chapter 2, especially at 19-21. nb in the course of this discussion, Strawson indicates that it might be better to be somewhat revisionist as regards the terminology used in this area, and to replace ‘analysis’ with ‘elucidation’, in referring to the approach to philosophical explanation he advocates. He notes, however, that in intellectual work, we are to an extent hemmed in by existing usage of terms, and the philosophical orientation they provide. This being so, Strawson settles for a different form of revisionism, attempting to reclaim ‘analysis’ from the narrowness of the ‘dismantling model’, and bring out its more comprehensive sense (ibid at 19). 11 See in particular chapters 4, 6 and 7 … [THROW FORWARD TO SOME LATER CHAPTERS/PAGE REFS, ONCE I HAVE MORE OF AN IDEA OF WHERE THESE ARE … INSERT ONCE THIS IS KNOWN] 12 Strawson, n 6 above, at 15-16 and 21-4.


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explored further in chapter 6 of this book, this theme, too, has echoes in my own approach to

elucidating law.13

Turning from general philosophy to legal philosophy: HLA Hart is also associated with, and

sometimes explicitly refers to, the idea that our theories should seek to elucidate various aspects of

the legal phenomena they address.14 Hart’s use of the term in The Concept of Law often occurs at

points where he seeks to reject overly simplistic and/or reductive views of what law is, and of what

legal philosophy must do to understand law successfully. This is evident, for example, in his

embracing the notion of elucidation in explaining why a definitional methodology would be

inapposite and fruitless in understanding law,15 and in contending that the overly simplistic elements

of orders, threats, sanctions, and general habits of obedience, so central to John Austin’s nineteenth

century command theory of law, cannot sufficiently capture what it is to be guided by law, and to be

under an obligation to follow it.16 Hart also turns to the idea of elucidation where, by contrast with

overly simplistic and reductive approaches, he seeks to emphasize his embrace of a manifold and

diversiform approach to understanding and exploring the multiple important elements which

together constitute law. For instance, he speaks repeatedly of the need to understand and explore

the character of a cluster of central elements - including social rules, legal obligations, the internal

point of view, primary and secondary rules, power and authority, the open texture of law, and the

interstitial character of judicial law-making - and indicates that only by properly understanding a

sufficient range of such elements, and, crucially, the relations between them, can we hope to make

progress in legal philosophy.17

Moreover, both in considering the general character of Hart’s approach to understanding law,

and in critically engaging with and developing further particular arguments Hart made, various other

legal philosophers employ the notion of elucidating law. Such commentators frequently associate

Hartian elucidation with various of the characteristics mentioned above, such as a desire to avoid a

reductive and/or definitional approach to understanding law, and a commitment to exploring in a

13 [INSERT CROSS-REF ONCE THIS IS KNOWN]. 14 HLA Hart, The Concept of Law, 3rd edn., with a Postscript edited by PA Bulloch and J Raz, and with an Introduction and Notes by L Green (Clarendon, OUP, 2012), eg at 12, 17, 20, 80, 82, 110, 123, 155, 168, 169, 213, 292 and 274. 15 ibid at 12-17 and 213. 16 ibid at 80, 155 and 202. 17 ibid at 12, 17, 80, 82, 110, 169, 202 and 274.


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nuanced way a range of elements and facets of law, and the relations which hold between them, in

order better to illuminate its character.18

As has already been noted above, there are affinities between several of the above themes

and aspects of my own views regarding how we should engage in legal philosophy. In particular, there

are some significant consonances of approach as regards an appreciation of the manifold and various

facets of law, and a commitment to theoretical pluralism in terms of those forms and lines of

jurisprudential inquiry apposite to illuminating different aspects of it.19 I regard this as a strength of

my approach, and, at various points in the course of this book, I will be at pains to emphasize the

valuable sense in which we are all ‘standing on the shoulders of giants’ in our jurisprudential

endeavours.20 That said, we partly repay our intellectual debts to those upon whose shoulders we

now stand, by attempting to focus and develop our own distinctive view from that vantage point.

It is in this spirit, then, that I begin to advance my own view of elucidating law. In my view,

the notion of elucidating law encompasses four main ideas, each of which resonates with aspects of

my ‘philosophy of legal philosophy’:

(i) Elucidating law connotes the idea that the legal philosopher’s task is to identify, illuminate and

explain aspects of something which is (in a sense which receives further specification in chapters 2,

3 and 7 of this work) ‘there anyway’, ie something - law - which has an existence and character that

legal philosophy attempts to capture.

(ii) Elucidating law affirms that law is a multi-faceted and complex phenomenon, different aspects of

which can be illuminated from different theoretical directions, at different times, and for different

reasons. Accordingly, the questions of legal philosophy are manifold, various, and arise in and change

over time, and its quest is never-ending.

(iii) Elucidating law indicates that legal philosophers have much work to do, and many judgements -

including evaluative judgements - to make, in developing their theories of law. Elucidation involves

bringing out from law its most important and significant features, and offering illuminating accounts

18 See eg S Brown, ‘Review of The Concept of Law by HLA Hart’ (1963) 72 The Philosophical Review 250-3; RS Summers, ‘Professor HLA Hart’s Concept of Law’ (1963) Duke Law Journal 629-70; N MacCormick, HLA Hart, 1st edition (Stanford University Press, Stanford CA, 1981), eg at 1, 5, 18, 23, 25, 28, 32, 34, 38, 43, 82, 90, 103, 106, 144 and 166; TAO Endicott, ‘The Generality of Law’ and J Gardner, ‘Why Law Might Emerge: Hart’s Problematic Fable’, both in L Duarte d'Almeida, J Edwards and A Dolcetti (eds.), Reading HLA Hart’s ‘The Concept of Law’ (Hart Publishing, Oxford, 2013). 19 See eg [THROW FORWARD TO SOME LATER CHAPTERS/PAGE REFS, ONCE I HAVE SOME IDEA OF WHERE THESE ARE … INSERT ONCE THIS IS KNOWN] 20 [THROW FORWARD CROSS REFS TO ??? INSERT ONCE THIS IS KNOWN.]


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of those features; accounts which speak to that which concerns us, given the ubiquitous presence

and distinctive impact of law upon our social world.

(iv) Elucidating law encompasses not merely the idea of legal philosophers elucidating aspects of law

in their theories, but also the thought that law itself can be an ‘elucidating phenomenon’, in the sense

that a thorough understanding of law can help to identify, bring into focus, and shed light on other

important phenomena. In particular, an understanding of law’s character bears importantly upon

other puzzles and questions we face, such as: how law claims to, and how it actually does, bear upon

our practical reasoning processes; whether and when we ought to take it as having legitimate

authority over us; and what we truly ought to do, morally speaking, given the presence of law and its

normative requirements.

While the detailed unpacking and exploration of these points must await discussion in the

relevant later chapters of the book, in the remainder of this section, I will begin to explore some

important issues raised by each of them, and so introduce readers to some of the main themes of

the present work.

(i) Elucidating law connotes the idea that the legal philosopher’s task is to identify, illuminate and

explain aspects of something which is ‘there anyway’, ie something - law - which has an existence

and character that legal philosophy attempts to capture.

To elucidate something, as the word’s origins indicate, is to cast light upon it; to illuminate it; to

explain it in a way which makes its character clearer.21 Elucidation, then, appears to envisage an

explanandum to be elucidated, ie a something, that is - in some relevant sense in need of further

specification - ‘there anyway’, upon which light can be shed to greater or lesser degrees, and which

has a character capable of being illuminated. This point accords well with my own understanding of

the sense in which legal philosophy attempts to elucidate law. As I discuss in chapters 2 and 3, one

vitally important part of the philosophy of law is the attempt to identify and understand the nature

of law, ie those properties which make law into what it is, and in virtue of which it is what it is. This

enterprise, both in abstract terms, and as it is instantiated in the work of many legal philosophers

21 ‘.. elucidate, v. … Etymology: < late Latin ēlūcidāt- participial stem of ēlūcidāre, < ē out + lūcidus bright … trans. To render lucid; … to throw light upon, clear up, explain.’ Oxford English Dictionary (OUP) online at http://www.oed.com/view/Entry/60622?isAdvanced=false&result=2&rskey=khqi0d&

http://www.oed.com/view/Entry/60622?isAdvanced=false&result=2&rskey=khqi0d&


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from across the jurisprudential spectrum, presupposes that law has a nature, and that it is a possible

and important task of a theory of law to try to ascertain, capture, and explain what that nature is.22

That said, and as chapter 3 particularly explores, the part of legal philosophy which is

concerned with the nature of law is just that, ie a part of - to borrow Austin’s phrase - the province

of jurisprudence as a whole.23 It is, however, an extremely important part of that province, and a

necessary precursor to24 some other types and lines of inquiry which are also vital in our quest to

understand, evaluate, develop, and decide how to think and to act in light of, law. This being so, a

significant part of the ‘philosophy of legal philosophy’ expounded in this book is concerned with what

legal philosophers are doing, and how we ought to be doing it, when we develop and defend theories

of the nature of law.

Of course, and as is also explored in chapter 3, not all legal philosophers seek to ascertain and

explain the nature of law and, some of those who do not also claim that it is impossible to do so, that

there is no point in doing so, that attempting to do so yields problematic consequences, or some

other variation on these claims. These contentions, and the challenges they present to the philosophy

of legal philosophy championed in this book, must be taken seriously, faced, and either overcome or

legitimately by-passed. In the course of so doing, we inevitably uncover and engage with further

puzzles concerning what ‘the nature of X’ might mean, when the X in question is a human-made

social institution.

(ii) Elucidating law affirms that law is a multi-faceted and complex phenomenon, different aspects

of which can be illuminated from different theoretical directions, at different times, and for

different reasons. Accordingly, the questions of legal philosophy are manifold, various, and arise

in and change over time, and its quest is never-ending.

22 For example, and to name but a few, I would count Jeremy Bentham, John Austin, HLA Hart, Hans Kelsen, Lon Fuller, Alf Ross, John Finnis, Joseph Raz, Michael Moore, Amanda Perreau-Saussine, Nicos Stavropoulos (and, on Stavropoulos’ reading of him, with which I am in agreement on this issue, Ronald Dworkin), Leslie Green, Veronica Rodriguez-Blanco, Wil Waluchow, John Gardner and Scott Shapiro as all attempting to capture and explain the nature of law, in spite of their very different views on what it is for law to have a nature, and what its nature is. Some of these theorists’ views on this issue are discussed in [INSERT CROSS-REFERENCES ONCE THIS IS KNOWN]. 23 John Austin The Province of Jurisprudence Determined, originally published 1832, W Rumble (ed), (Cambridge University Press, Cambridge 1995). 24 This point receives further attention in chapter 8 of the book.


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Although when legal philosophers elucidate law, they endeavour to cast light on phenomena which

is, in some relevant sense,25 ‘there anyway’, this thought should not lead us to think that, as a result,

there can be only one correct theory of the nature of law, or that all theories of law address identical

questions, or have identical theoretical interests. Rather, the way to think of the situation, to speak

metaphorically for a moment, is in terms of different theories of law, or indeed different aspects of

the same theory of law, shining beams of light of different wavelengths and luminosity, on different

areas and aspects of the complex and manifold phenomena comprising law.

As is explored in chapter 4, because law is a multi-faceted, diversiform phenomenon, there is

every reason to think that its significant and important features will be many, various, and possibly

open-ended in number. Various different sets, and subsets, of law’s features will appear puzzling and

of interest to different theorists at different times, partly in response to changing societal concerns

about the character and operation of law, giving those theorists multifarious and differing reasons to

study certain facets of law. The questions which legal philosophy addresses, as well as the answers it

attempts to give, hence arise in and alter over time. Moreover, certain aspects of law’s character and

operation, and the puzzles and concerns that they animate, only reveal themselves to individuals,

theoretical movements, and societies with particular experiences and/or sensitivities which afford

them access to previously unnoticed, or at least under-emphasized and under-attended to, facets of

law. Elucidatory shafts of light of varying theoretical wavelengths and luminosity thus illuminate legal

phenomena from a multiplicity of angles, and continually seek out novel facets of law hitherto in

shadow. There is not, even in principle, one single, comprehensive, and entirely correct theory of law

waiting to be discovered, and our discipline is the richer and more fertile for it.26 All this being so, the

idea of elucidating law should be understood as consonant with a vision of legal philosophy, and of

the questions it asks and answers it offers, which is pluralistic, innovative, diversiform and open-

ended.

(iii) Elucidating law indicates that legal philosophers have much work to do, and many judgements

- including evaluative judgements - to make, in developing their theories of law. Elucidation

involves bringing out from law its most important and significant features, and offering

25 The sense in question is discussed in chapters 2 and 3. 26 See further chapter 4, section ?? [INSERT ONCE THIS IS KNOWN].


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illuminating accounts of those features; accounts which speak to that which concerns us, given the

ubiquitous presence and distinctive impact of law upon our social world.

In one respect, the ‘casting light on legal phenomena which is ‘there anyway’ from a variety of

different angles’ metaphor outlined in (i) and (ii) above, has the potential to mislead. It may do so if

it is understood in a way which gives the impression that the role of the legal philosopher is a

somewhat passive one. For example, the metaphor will confound more than clarify if it is taken to

connote that, as the explanandum is ‘there anyway’, then all the legal philosopher need do is direct

her beam of light over that aspect of law which interests her, and then just observe and record what

she sees.

Such a view of the task of legal philosophy is referred to by some - frequently, by theorists

who oppose the view in question - as descriptive in character, and theories attempting to engage in

it are designated descriptive legal theory or descriptive legal philosophy.27 As I have argued

elsewhere, this use of ‘descriptive’ is a misnomer, and one which is liable to generate significant

misunderstandings.28

Two main misconceptions are particularly relevant here:

(a) that those ill-advisedly labelled ‘descriptive legal theorists’ hold that legal philosophy is value-

free, and does not require the theorist to make or defend evaluative judgements in explaining

aspects of law’s character.

(b) that those ill-advisedly labelled ‘descriptive legal theorists’ are fundamentally uninterested in

exploring certain aspects of the relations between law and morality, such as whether law has any

moral properties, including any necessary moral properties; whether law has a moral task or aim;

what, morally, we - both citizens and legal officials - ought to do, given the presence of law.

27 [IN TIME, AND ONCE I AM CLEARER RE. WHOSE AND WHICH WORK I WILL DISCUSS ON THIS ISSUE. ALSO PERHAPS MENTION INTERESTING ENGAGEMENT, BETWEEN MYSELF & BRIAN LEITER RE. DESCRIPTIVE ACCOUNT OF A HERMENEUTIC CONCEPT?, AND THROW FORWARD TO THE LATER CHAPTER AND SECTION WHERE I WILL MORE FULLY DISCUSS THIS? INSERT WHEN THIS IS KNOWN] 28 See eg J Dickson, Evaluation and Legal Theory (Hart Publishing, Oxford, 2001); Dickson, ‘Methodology in Jurisprudence: a critical survey’ (n 3); J Dickson, ‘Descriptive Legal Theory’, forthcoming in the Encyclopaedia of the Philosophy of Law and Social Philosophy, edited by MNS Sellers and Stephan Kirste (Springer, forthcoming 2017) and available from: [INSERT NEW REFERENCE ONCE AVAILABLE/KNOWN]


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I will return to (b) in discussing the fourth aspect of elucidating law below. As regards (a), it is

pivotal to my own views, as espoused in the present work and elsewhere,29 that no part of legal

philosophy is value-free, and that successful theories of law, including successful theories of the

nature of law, significantly and crucially involve their authors making a range of evaluative

judgements. Such evaluative judgements are necessary to pick out those features of law which are

important and significant to explain, and also feature throughout the course of offering and

defending illuminating explanations of law’s important features. This renders the process of

elucidating law an extremely pro-active and engaged activity, which involves the legal philosopher

continually making, reviewing, revising, and adjusting evaluative judgements she makes concerning

features of law, and concerning attitudes towards and beliefs about law held by those subject to,

administering, and creating it.

These schematic remarks are further explained and explored in the chapters to come. The

crucial point emphasized here is that to elucidate law is not merely to shine a flat and invariant light

upon it, and then to passively record a litany of properties of, attitudes towards, and beliefs about

law. Rather, elucidation, in the sense explored in this book, must be understood as a dynamic and

constructive activity involving evaluative judgement, wherein legal philosophers seek to engage with

and bring out of law vital aspects of its character, in order that we may explore in depth what it is,

what it requires of us, how it shapes and influences us and the societies to which we belong, and

what we ought to do in light of it.

(iv) Elucidating law encompasses not merely the idea of legal philosophers elucidating aspects of

law in their theories, but also the thought that law itself can be an ‘elucidating phenomenon’ , in

the sense that a thorough understanding of law can help to identify, bring into focus, and shed

light on other important phenomena. In particular, an understanding of law’s character bears

importantly upon other puzzles and questions we face, such as: how law claims to, and how it

actually does, bear upon our practical reasoning processes; whether and when we ought to take it

as having legitimate authority over us; and what we truly ought to do, morally speaking, given the

presence of law and its normative requirements.

29 See those works cited in note 28 above, and also J Dickson, ‘On Naturalizing Jurisprudence: Some Comments on Brian Leiter’s View of What Jurisprudence Should Become’ (2011) 30 Law and Philosophy 477. I take up this issue once again in chapters … [INSERT ONCE THIS IS KNOWN].


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The final important connotation of elucidating law that I wish to draw attention to here is the idea of

law itself - once aspects of it are appropriately illuminated and understood - operating in an

elucidatory capacity, and shedding light on other important phenomena which play a central role in

our social world.

Two ways in which this can occur are particularly relevant for present purposes. The first

arises where certain features of law are compared and contrasted with features of other phenomena

with which they appear to share similarities, but regarding which we also perceive there to be

important differences. As a result, both law, and that which it is being contrasted with, can be

brought better into focus and understood in greater depth. For instance, questions concerning the

normativity of law, including the meaning of legal ‘oughts’, what they demand of us, how they come

into existence and how we ascertain their content, etc., can shed light on, and, in turn, can

themselves be better understood, by examining what is similar, but also what is significantly

different, as regards the complexion of and answers to these questions in the case of moral oughts,

and moral normativity.

A second sense in which law can act as an elucidating phenomenon emerges when we

appreciate that our attempts to understand aspects of law’s character can cast light on, and assist us

in approaching, questions which extend far beyond the nature of law, but where the nature of law is

pivotal in properly considering the question at hand. For example, take the general moral or

normative question of what we ought to do in a given situation. The presence of law which is relevant

to the situation, like the presence of many other things in our social and moral lives (family and

business relationships, promises we have made, etc.), affects in certain ways our deliberations and

decisions about what, morally speaking, we ought to do. This being so, we cannot begin properly to

answer the question: ‘what ought I to do in this situation, given the presence of law which is relevant

to it?’, until we have an accurate and explanatorily adequate understanding of certain aspects of

law’s nature, such as the character and content of the claims that law makes, including its claim to

moral authority and to justifiably require obedience from us, and the manner in which it purports

legitimately to intervene in our practical reasoning processes. We cannot properly consider what role

law ought to play in our practical reasoning processes in a given situation, and what, morally

speaking, should be our response to law’s claims, until we know precisely the character of those

claims, and exactly what they do and do not demand of us.

All this being so, one of the most important roles of an account of aspects of the nature of

law, is to throw light upon, and hence to assist us with, further inquiries such as what, morally


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speaking, we ought to do, given the presence of law. Such further inquiries are significantly advanced

when we conduct them in light of an accurate and explanatorily adequate account of law’s nature,

because the light cast by such an account brings the further questions we seek to ask and to answer

more precisely into focus, and advances our understanding of what bears importantly upon those

questions, thus facilitating addressing them appropriately.30

3. Why ‘Elucidating Law’?

The discussion above introduces four main themes which are central to my approach to

understanding law, and which begin to explain why I chose Elucidating Law as the title to this book.

Before offering - in section four below - an outline of the book’s structure, I want to briefly indicate

why I chose to write this book at all, and, more especially, how I hope to do so, in the sense of the

approach to academic inquiry which the book is committed to and hopes to exemplify.

As regards the ‘why’: I have chosen to write this book because I hope that I have something

illuminating to say on the topic of the philosophy of legal philosophy which will be of interest to all

those studying, working within, and striving to understand what it is that we are doing when we do

philosophy of law. Beginning with my book, Evaluation and Legal Theory,31 I have harboured a career-

long interest in issues such as the criteria of success of theories of law, the questions such theories

should address, and the compatibility or otherwise of different jurisprudential approaches.32 I have

addressed these topics in a rather piecemeal fashion, tackling certain aspects of them in various

articles and chapters in edited collections. This being so, and given that I believe I have developed

over the years both a broader and deeper understanding of such issues, and of the character of and

reasons for my own stance on them, the time seems ripe not only to draw together my views on

30 I have discussed briefly certain aspects of these issues in previous work - see eg J Dickson, Evaluation and Legal Theory (n 28), ch 7 - but they receive much fuller treatment in chs [INSERT ONCE THIS IS KNOWN] 31 Dickson (n 28). This work was also published in a Spanish language edition as Evaluación en la teoría del derecho, Spanish language edition of J Dickson, Evaluation and Legal Theory, translated by Juan Vega Gomez (UNAM Press, México, D.F. 2006). 32 See eg J Dickson, ‘The Central Questions of Legal Philosophy’ (2003) 56 Current Legal Problems 63; J Dickson, ‘Methodology in Jurisprudence: a critical survey’ (n 3); J Dickson, ‘Is Bad Law Still Law? Is Bad Law Really Law?’ in M Del Mar and Z Bankowski (eds), Law as Institutional Normative Order (Ashgate 2009); J Dickson, ‘On Naturalizing Jurisprudence: Some Comments on Brian Leiter’s View of What Jurisprudence Should Become’ (n 28); J Dickson, ‘Law and Its Theory: a Question of Priorities’ in R P George and J Keown (eds), Reason, Morality and Law: the Jurisprudence of John Finnis (Oxford University Press 2013); J Dickson, ‘Ours is a Broad Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry’, (n 2 above); J Dickson, ‘Who’s Afraid of Transnational Legal Theory?: Dangers and Desiderata’, (2015) 5 Transnational Legal Theory 565-585.


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these matters but to further advance them. The character of and impetus generated by a book-length

projects seems an appropriate genre in which to do so.

Moreover, as will be discussed throughout the book, but perhaps with particular prominence

in chapter 3, recent years have seen a flurry of thought-provoking challenges emerge, which cast

doubt on the very possibility of, and/or seriously call into question the current manner of engaging

in, that part of the philosophy of law which attempts to identify and understand the nature of law, ie

those properties which make law into what it is, and in virtue of which it is what it is. Theorists with

such varied jurisprudential leanings as Michael Giudice, Nicola Lacey, Brian Leiter, Dennis Patterson,

Liam Murphy, Roger Cotterrell, Fred Schauer, and Brian Tamanaha, have mounted challenges of this

kind. Some of these theorists are wary of the idea that a human-made social construction such as

law can have a nature which legal philosophers can attempt to identify and explain. Others mount

challenges in respect of what they regard as the key method employed by legal philosophers

attempting to ascertain law’s nature, namely conceptual analysis, and regard that method, either in

principle, and/or as currently practised in jurisprudence, with sceptical eyes, doubting that it can

yield adequate (or any?) understanding of the nature of law, and, for some, even well-founded

knowledge of the concept of law.33

A different group of challenges hail from another direction. Once again, a diverse range of

legal philosophers, including Nicos Stavropoulos, John Finnis, Stephen Perry, Veronica Rodriguez-

Blanco, Margaret Martin, Natalie Stoljar, Ronald Dworkin, Dan Priel, Maris Köpcke Tinturé, and

Jeremy Waldron have strongly criticized certain approaches to legal philosophy - including my own -

on the grounds that they are insufficiently morally evaluative at various important stages in the

inquiry.34 According to this line of criticism, an appropriate philosophy of legal philosophy must take

a stance, early on in the inquiry, and throughout the course of it, on the moral value of law. Moreover,

for some such theorists, a theory of law must also explain law in a way which recognizes, and grants

a central place to, law possessing inherent moral value, and being morally justified in imposing its

duties upon us.

Developing and defending my own philosophy of legal philosophy, which stands firmly by the

claim that it is an important part of jurisprudential inquiry to identify and explain aspects of the

nature of law, but also insists on the importance of resisting prematurely engaging in moral

33 Some of these challenges are discussed in chapters 2 and 3 of this book. 34 Some of these challenges are discussed in chapters 5-9.


15

evaluation, let alone moral veneration of law, depends on successfully addressing these sorts of

challenges. Part of the aim of this book is to acknowledge the appeal of, and insights to be drawn

from, the views of these critical commentators, and to refine and defend my alternative position by

engaging productively with them.

The ‘how’ of this book - in the sense of the approach to academic inquiry which it is committed

to and hopes to exemplify - is at least as important to me as the ‘why’. The reader will appreciate

that the following remarks are to an extent speculative, supported anecdotally, and based on my

own necessarily partial experience. They also do not refer to or attempt to single out any one, or any

group of, theorists, theories, or approaches – I have encountered aspects of them to varying extents

across a very wide range of intellectual contexts. But they are views very strongly held, based on

personal experience, and which I believe raise important issues which will resonate with many in

legal philosophical academia. In this spirit, I offer them here.

One tendency I seek to avoid - a tendency in my view much too frequently encountered in

academic exchanges - is that of assuming that thoroughgoing and analytically powerful argument

and debate necessarily involves adopting a strongly adversarial attitude, according to which one must

‘attack’ opponents’ positions, and strive to create as much distance as possible between the

‘attacked’ views, and one’s own position, hence polarizing the debates concerned. To make matters

worse, sometimes this tendency appears to have an ‘imperialist’ edge: those who do not conduct

themselves in this manner are sometimes seen as offering arguments which are ‘weak’, or

inconclusive, or inadequate, or insufficiently original, or as not being able to engage fully with the

proper style of ‘high level’ academic debate.

I personally find adversarial, and excessively polarizing, approaches to academic debate to be

alienating and fruitless. In addition, I view them as being, as Robert Nozick so aptly noted in his rightly

renowned ‘Introduction’ to Philosophical Explanations, a somewhat odd and unpleasant way to

behave towards one’s colleagues and one which appears to run directly and puzzlingly counter to the

very spirit of curious, wondering, speculative, and exploratory inquiry which propelled many people

into philosophy, and into legal philosophy, in the first place.35

35 See R Nozick, Philosophical Explanations (Harvard University Press, Cambridge, Mass., 1981), Introduction, especially at 4-5 and 13.


16

But the worst casualties of the adversarial approach lie in the potential loss of clarity,

accuracy, nuance, and of high quality careful and reasoned analysis which must form the bedrock of

any philosophical inquiry. This can occur because such adversarialism tends to generate considerably

more heat than light, or, in Thurber’s words, more ‘glare’ than ‘glow’36: it frequently leads to an

exaggerated and distorted view of aspects of, and nuances in, the views of one’s opponents, and an

over-emphasis on ‘winning’ the argument and ‘defeating’ opponents, at the expense of

understanding the character and importance of, the questions addressed by the debate, and the

strengths and weaknesses of a variety of stances taken on those questions.

Approaches to academic debate which are overly focused on ‘winning’ the argument and

‘defeating’ one’s alleged intellectual opponents can also foster the vices of generating false

dichotomies, indulging in straw-man accounts of others’ views, and falsely polarizing the terms of a

debate as a result of these vices. The desire to emerge ‘victorious’ having demolished one’s

intellectual opponents, coupled with the wish to be, and to be seen to be, highly original in one’s

views, can lead to exaggeration of, and distortion of, the differences between one’s own views and

the views of others, and can result in a failure to acknowledge intellectual debts to the giants whose

shoulders give us all greatly enhanced chances of a better view. It is a virtue, not a vice, of intellectual

work that it acknowledges the debts it owes to forerunners and contemporaries, both those with

whom one has intellectual affinities, and those with whom one disagrees. Too often, however,

scholars who do properly acknowledge such matters, and who exhibit appropriate awareness of the

context surrounding and limitations of their own work, correctly seeing it as one important yet

inevitably limited part of a large and diverse intellectual web, are denounced as being unambitious,

or unoriginal, or as hewing excessively to others’ views.

Polarization of debate on a given issue, and an exaggerated sense of the distance and

differences between one’s own view and the views of others, are, however, the enemies of lucid,

careful, precise, and well-reasoned analysis. As some theorists have reminded us, such polarization

of views can lead to the adoption of extreme and implausible positions,37 and/or to the unproductive

and exaggerated shuttling between alternative extreme views, propelled by the force of too-

36 See the quotation with which this chapter opened, taken from James Thurber, Lanterns and Lances (n 1 above), 146. 37 See eg Strawson, Analysis and Metaphysics (n 6 above) ch 1, especially at 5, and at 15-16.


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vehement rejection of some aspect of the stance of one’s intellectual opponent.38 It can also result

in an unhealthy fondness for some kind of jurisprudential ‘team sports’ where groups of theorists are

lumped together under often inaccurate and over-inclusive banners, and encouraged to ‘face off’

against an opposing such ‘team’, in a manner unlikely to foster a spirit of curious and exploratory

inquiry.39

Exponents and supporters of an adversarial approach to philosophical inquiry often claim for

it the virtue that ‘truth will out’ in the back and forth of dialectical and/or dialogic argumentation.

While considering and responding appropriately to objections to and criticisms of one’s work by

colleagues and students is extremely useful in honing and focusing one’s own view, and in increasing

the weight of its justificatory ballast, I believe that it is perfectly possible and much preferable to do

this in a way which does not involve ‘squaring off’ against intellectual opponents, and writing as if

they must be made to admit the error of their ways, recant, and embrace the alternative creed of

one’s own views.

The points made above should also not be taken as advocating some sort of ‘can’t we all just

get along’ overly compatibilist view of the relations between theories of law. My hope is not for

compatibilism-at-all-costs in academic debate, but rather for constructive and positive mutual

engagement of a kind unconcerned with who ‘wins’ and who ‘loses’ and who has managed to

‘demolish’ or ‘knockdown’ which alternative views. Such an approach appears to me far more likely

to establish precisely where theories of law do, and do not, disagree, and which of those

disagreements are important, in terms of what they tell us about the character of law, and the

character of the philosophy of law.

So much, then, for what I will try not to do in this book! More positively, then, what virtues

of inquiry do I hope to embrace and exhibit in the discussion which follows? I would say that I aspire

to:

➢ adopt an open and exploratory approach to puzzles concerning law’s character; to proceed

from a sense of fascinated and curious puzzlement about aspects of law, and with a

willingness to follow paths of inquiry where they may lead, open to reaching unexpected

38 See eg Hart, The Concept of Law (n 14 above), ch 7, passim, but especially at 129-30, 136, 138-9, 147 and 153-4. I discuss aspects of this tendency in [INSERT CROSS-REFERENCE ONCE KNOWN – INCLUDE OTHER EXAMPLES, EG WITTGENSTEIN REFERENCE TOO RE. RULE FOLLOWING? OTHER EXAMPLES I WILL DISCUSS IN THE BOOK?] 39 I discuss some examples of this phenomenon in chapters … [INSERT CHAPTER AND SECTION/PAGE REFERENCES ONCE THESE ARE KNOWN]


18

conclusions, and to discovering hitherto unsuspected affinities between one’s own views, and

the views of others

➢ be willing, at times, to offer arguments that are speculative rather than attemptedly

conclusive in character - and to defend those arguments from criticism to the effect that their

non-conclusiveness renders them weak, inadequate, or unilluminating

➢ look always for the reasons behind, aims of, and value in, others’ work, including work which

takes very different approaches, and reaches very different conclusions, as compared with

one’s own work

➢ acknowledge intellectual debts, and celebrate, not conceal, where one has benefitted

standing on shoulders of giants.

➢ be pluralistic in theoretical outlook and attitude; to consider the possibility that some disputes

are more apparent than real, and that many different types of inquiry with many different

points of focus might, at least to some extent, be jointly illuminating of the complex and multi-

faceted social institution that is law

➢ resist excessive polarization of debates one is involved in, and to acknowledge that ‘ …

extreme positions are rarely right’40 – a stance which includes a nuanced understanding of

the sense in which many disagreements between legal philosophers are less about truth vs

falsity and more about differences of emphasis, and differences in judgements regarding the

relative importance of various aspects of law’s character41

➢ embrace the idea that opening up new puzzles and new questions for future investigation,

and achieving a deeper understanding of those puzzles and questions with which we are

currently concerned, is as much a criterion of success in legal philosophy as conclusively

establishing a particular set of answers as regards a subset of those puzzles and questions. In

this, our way is lighted once more by Robert Nozick in his Introduction to Philosophical

Explanations:

40 Strawson (n 6), at 5. 41 I discuss some examples of this in chapters … [INSERT CHAPTER AND SECTION/PAGE REFERENCES ONCE THESE ARE KNOWN]


19

‘Still, I do believe, and hope you will find it so, that these proposed explanations are illuminating and worth considering, that they are worth surpassing; also, that the process of seeking and elaborating explanations, being open to new possibilities, the new wonderings and wanderings, the free exploration, is itself a delight. ’42

4. The end of a beginning

This book is divided into two Parts. Part I, entitled ‘Fundamental Questions’, is comprised of four

chapters, and considers certain important and inescapable issues which all legal philosophers

encounter, such as the character of the explanandum they seek to explain, the relations between

their own approach to theorizing about law and other jurisprudential approaches, and the scope,

provenance, and development of those questions and puzzles about law that they find interesting.

In this opening chapter of Part I, I have introduced some of the main themes explored throughout

the book, through the prism of my understanding of, and commitment to, elucidating law. In Chapter

2: ‘Legal Philosophy and the Nature of Law: Some Requisites Outlined’, I consider what legal

philosophers might mean when they claim to be seeking to identify and explain the nature of law,

and offer my own view of some requisites which must hold in order for such a quest to make sense.

Chapter 3: ‘Legal Philosophy and the Nature of Law: Some Challenges Considered’ continues to

explore the possibility and plausibility of legal philosophy attempting to identify and explain law’s

nature, and does so via engaging with some thought-provoking contemporary challenges to aspects

of this idea. Chapter 4: ‘The Questions of Legal Philosophy: Development, Diversity, and Distribution

of Emphasis’, then discusses some concomitants of the understanding of the nature of law which

emerges from the discussion thus far. I argue that, although the questions of legal philosophy arise

in and change over time, and although they admit of great diversity and differential focus (all of which

I regard as strengths of the discipline) that nonetheless the enterprise of trying to answer those

questions does admit of the possibility of progress, and is properly understood as attempting to

ascertain and explain the nature of law. In a sense, Part I of the book does not yet significantly

demarcate or defend my own particular philosophy of legal philosophy - which in this book I term

‘Indirectly Evaluative Legal Philosophy’ (IELP) - rather, it seeks to clear the way for that approach,

and to set it on a firm and plausible footing, by tackling some vital issues regarding legal philosophy’s

42 Nozick (n 35) at 24.


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search for the nature of law, and some important challenges facing those who engage in this facet of

legal philosophy. That said, aspects of my particular philosophy of legal philosophy do come through

more and more as this Part proceeds, and chapter 4 can in some ways be viewed as a bridge between

the two Parts of the book.

The second Part of the book develops, and focusses in on successive aspects of my own

philosophy of legal philosophy. As its title indicates, in Part II, I develop and defend my own particular

conception of elucidating law, which I refer to in the book as Indirectly Evaluative Legal Philosophy

(‘IELP’). Over the course of the five chapters plus conclusion which comprise this part of the book, I

explore and defend in depth different aspects of my particular vision of what legal philosophy is, and

how we should engage in it. Chapter 5: ‘Approaching Law: An Attitude of Due Wariness’ defends the

view that legal philosophy should not approach understanding law from what we might call a neutral,

or ‘uninvolved’ starting point, and should instead proceed by adopting from the outset an ‘attitude

of due wariness’ regarding law. I justify this stance by exploring those features of law which make

adoption of such an attitude appropriate. Chapter 6: ‘Elucidating Self-Understandings: Law as a

Hermeneutic Concept, and the Limits of Conceptual Revisionism’ tackles the idea, oft-supported and

made much of in legal philosophy, but perhaps insufficiently pinned down and analyzed, that part of

what we study in philosophy of law are people’s self-understandings and that hence we have a

responsibility in our theories of law adequately to account for and to do justice to, those self-

understandings in terms of law and related concepts such as legal obligation and authority, already

used by those living under and administering law. I examine what such claims might mean, and which

consequences flow from them, in terms of how ‘revisionist’ a theory of law can and should be as

regards staying true to, or departing significantly from, the existing concepts and understandings

already used by people in law-governed societies in comprehending themselves and their social

world. Chapter 7: ‘Aspects of Law’s Nature: The Real and the Ideal’, argues that being able to

illuminate and explain certain dualities of law – for example the dualities of power and authority,

force and normativity, and of law as social and institutional fact, but also as morally aspirational and

morally engaging - is a demanding and important test for theories of law. I argue that this is a test

which IELP can pass, both in respect of its own character, and as regards those further jurisprudential

enterprises which it can facilitate and engender. Chapter 8: ‘Explanatory Priority and Route-

Dependence: The Value of ‘Staged Inquiry’, investigates some important questions concerning

whether there is a required, and/or desirable, order of explanation in legal philosophical inquiry, and

whether addressing certain questions before others helps or hinders the inquiry at hand, and/or


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illegitimately circumscribes and inappropriately prejudges certain issues. I argue in favour of what I

term ‘Staged Inquiry’ – an approach which counsels understanding different aspects of law’s

character at different stages in legal philosophical inquiry, and with different levels of engagement

of our capacities for moral and other evaluation of our explanandum. Chapter 9: ‘The Limits of

Jurisprudence Enlarged?’ addresses accusations made by some legal philosophers that IELP and

cognate methodological approaches are isolationist in character, and seek to hermetically seal legal

philosophy from the rest of political, social and moral philosophy. Such views significantly

misunderstand the position I espouse, and attribute to it some version of the view that it is up for

grabs whether legal philosophy is situated in the context of, continuous with, and fruitfully related

to, inquiries in political, social, and moral philosophy. The reality is that none of this is in doubt,

certainly not as regards my own views, and possibly not as regards anyone’s views. The issue is not

whether legal philosophy is part of, situated in the context of, and, in a certain sense, continuous

with inquiries in political, social, and/or moral philosophy. The issue is: what is the exact character of

the relations between these enterprises, and in what precise sense is legal philosophy part of,

continuous with, and tied to them. The concluding chapter, ‘Indirectly Evaluative Legal Philosophy in

Elucidating Law’ pulls together the various threads of argument encountered thus far. Indirectly

Evaluative Legal Philosophy, my approach to elucidating law, can now be seen in the round, with its

character more fully illuminated. This final chapter also further emphasizes the ability of my

particular conception of ‘elucidatory jurisprudence’ to engender appropriate and effective moral

evaluation and criticism of law, and, more generally, to open up, diversify, and ensure continued

vibrancy in debates in legal philosophy.

PART I: FUNDAMENTAL QUESTIONS Chapter One

Documents

Transcript of PART I: FUNDAMENTAL QUESTIONS Chapter One