Interpretation and Methodology in Legal Theory

Abstract

Abstract At some point almost every major work in jurisprudence discusses issues of methodology, and often these seem to be the most difficult and intractable questions in the subject. Why should this be? Does jurisprudence raise special methodological problems that other disciplines do not face? Because law is both a social and a normative phenomenon, there is good reason for thinking that it does. In stating that law is both social and normative, I mean to say that it is a social institution that also systematically gives rise (or at least is perceived to give rise) to reasons for action. Now it is, of course, possible to study the reason-giving aspects of social practices from a purely philosophical perspective. One task of po1itical philosophy, for example, is to describe ideal political practices, and to determine whether and under what circumstances they would affect people’s reasons for action (usually by creating obligations for them). Similarly, it is possible to study social institutions from a purely descriptive perspective, without reference to anyone’s reasons for action (or at least this is possible according to one school of thought in the social sciences). Some branches of sociology attempt to study law in this way. Jurisprudence gives rise to special methodological problems because it has both philosophical and descriptive aspirations; it attempts both to analyse the reason-giving dimension of social practices and at the same time to give a descriptively accurate characterization of an existing type of social institution. As a discipline jurisprudence claims, in effect, to be both a branch of practical philosophy (by which I mean the philosophy of practical reason), and a social science of a certain kind. The special problems of methodology it faces arise from this juxtaposition.