Within the received tradition, the rules-based model (which regards law as a pure science), identified with Herbert Lionel Adolphus (H. L. A.) Hart (1907–1992) and the Oxford school of analytical positivism, was subjected to both strong internal critique and important development by such figures as Ronald Dworkin, a Yale law professor who later became professor of jurisprudence in Oxford. Dworkin's redevelopment of the analytical model focused centrally on the development of a powerful rights-based theory of law. The approach moved the consideration of conventional legal theory strongly in the direction of the moral foundations of political community. This created an awkward fit for analytical positivism, which traditionally strove to separate law from moral discourse, that is, to radically distinguish the law that is from the law that ought to be. Dworkin's work led him to stress the principle that the foundations of a rights-based approach to law are indeed rooted in the values of equal respect and dignity, the core moral precepts in a political community committed to taking rights seriously.
Responses to legal realism.
In the United States the dominant version of legal realism (an intellectual movement that advocates policy-oriented jurisprudence informed by developments in social and behavioral sciences, such as psychology and anthropology), which had reached its apex in American legal culture prior to World War II, also remained influential. The general criticism leveled at legal realism argued that an approach to adjudication that is result-selective and that only makes sense from an external observer's point of view is flawed. It compromises the conventional view of law and in particular undermines its special juridical character rooted in the ubiquity and special characteristics of rules governing social and legal relations. This criticism reflects the idea—implicit in pragmatic approaches to philosophy—that law, like all human relations, should be conceived in terms of process.
Three distinctive responses to legal realism developed in the United States. The first was an acceptance of a rules-rights–based approach to law from an internal point of view, with the corresponding conclusion that the foundations of any legal theory from an external point of view (an about-law point of view) was simply incompatible with a professional internal perspective of law based on rules. This critique gave analytical jurisprudence an important place not only in developments in the United States, but more broadly in the general development of legal theory.
The second response, associated primarily with the Harvard Law School, is known as the legal-process school. At Harvard, Henry M. Hart Jr. (1904–1969) and Albert M. Sacks (1920–1991) focused attention on the nature of adjudication from the point of view of a principle of institutional competence. Instead of asking the classical questions of analytical jurisprudence: "What is a valid law?" and "By what criteria might we objectively determine what a valid law is?," they asked a different question, namely, "What is a legal question?" They were particularly interested in the objective indices used to distinguish administrative, executive, legislative, or indeed more broadly, political questions from those distinctively legal. This approach provided more flexibility and focused, so to speak, on law as a process requiring a continuing definition and redefinition of legal/professional roles, distinguishing these roles from other roles in the broader processes of settling community disputes. A central feature was the principle that one could still use an objective standard to interpret either what the law is or what falls within the scope of judicial competence. In this sense, analytical jurisprudence and the legal-process school shared a deep commitment to the role of objectivity in law.
Doubtless, ideology could influence the nature of the indicators used to either broaden or narrow the scope of what an appropriate judicial role is or should be. It cannot, therefore, be said that the legal-process approach settled deep ideological differences about the role of law in governing human relations. Rather, it provided a framework that justified greater flexibility in managing the tasks of judicially settling disputes while maintaining fidelity to the importance of objectivity in law. Morton J. Horwitz summarizes the essential challenge to which the legal-process school responded as follows:
The legal process school sought to absorb and temper the insights of Legal Realism after the triumph of the New Deal. Its most important concession to Realism was in its recognition that doctrinal formalism was incapable of eliminating discretion in the law. The task was instead to harness and channel that discretion through institutional arrangements.
The third response, generally associated with the Yale Law School, is known as "Law Science and Policy." It was identified with the political scientist Harold D. Lasswell (1902–1978) and the international lawyer Myres S. McDougal (1906–1998). These scholars were deeply influenced by legal realism, but were dissatisfied with the implication that at the end of the day legal realism might lead to legal nihilism. Their initial collaboration, which came during World War II, resulted in the 1943 publication of "Legal Education and Public Policy: Professional Training in the Public Interest." In this article, they raise the broad question of what the purpose of professional training is and, indeed, how professional training relates to the public interest. In this view, the professions are not neutral, but rather have a great deal to do with the nature and quality of the system of public order a society promotes and defends. From this article, they developed a system of jurisprudential thought for a free society and developed a wide range of specific applications of their theory to international law. Their work in international law became identified with the so-called New Haven School of International Law.
Jurisprudence in this view had a radically different, but distinctively scientific orientation. Jurisprudence was to be a theory for inquiry about law. The theory had a deliberate focus on policy-and decision-making. Indeed, law would now be defined as a process of authoritative and controlling decision-making wherein members of the community seek to clarify and implement their common interests. The approach would be radically context-sensitive, it would be problem-oriented, goal-guided, multidisciplinary, and solution-oriented. Among the central elements of this jurisprudential emphasis was the meaning it gave to the task of problem definition. Law, in this view, is not about the scope of different rules created by current or past elites, or about how to interpret or reconcile contradictory rules created by the same legal sources. A problem is to be observed from the perspective of the subjectivities of individuals involved in social interaction in society itself. In short, human beings in society are making subjective demands for value allocations, and these demands often reproduce social conflict for which the community provides institutional mechanisms specialized with whatever degree of efficacy for responding to them. Thus, law is one of the specialized mechanisms in social organization that responds to the raw, subjective claims of individuals in the larger social process.
By focusing the lens of legal inquiry on individual subjectivities, that is to say perspectives, for example, of identity, demand, and expectation, the Law Science and Policy approach radically changed the starting point of the central ideas required for legal inquiry. This had large-scale impacts on the development of ideas within the framework of legal culture. Lasswell's work in the social sciences and his collaboration with McDougal also anticipated the later development of post-modernism in the social sciences and its particular application to law, influenced by such theorists as Michel Foucault (1926–1984), Jacques Derrida (b. 1930), Jacques Lacan (1901–1981), and Jürgen Habermas (b. 1929).
Since human subjectivities are the central raw materials from which human problems evolve, and if law is a response to these problems, then human subjectivities are a critical element in a realistic and comprehensive understanding of jurisprudence and law. When, for example, human beings make distinctively economic demands, we bring in the relevance of microeconomic theory. When we consider that the rules and doctrines of the past in virtually all legal cultures have been largely made by men, we see that we must account for women's perspectives in law, which leads to the development of feminist conceptions of jurisprudence. Critical conceptions of jurisprudence, such as critical legal studies and critical race theory, as well as Lat/Crit theory (a branch of critical race theory), such as it is, have entered the discourse about legal culture as a result of the breach in the edifice of legal objectivism identified with conventional legal theory, as well as the legal process perspective.
The Law Science and Policy approach is a theory about and not of law. The insistence on a theory about law was a cardinal tenet of legal realism and was central to unpacking confusions of vantage point generated by both participants (decision-makers and claimants) and observers who represent a degree of scientific detachment required for the scientific study of law. However, the most direct influence of the McDougal-Lasswell school was in the area of international law, which they styled the public order of the world community. It is, of course, not the case that all of international law reflects their basic tenets; however, their work has had substantial influence on how international law is conceived and on the salience and importance of many of its important doctrines.
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