Legal Theory: Types and Purposes – Brian Bix
One barrier to greater dialogue and understanding within Jurisprudence is the inability to appreciate the variety of forms and purposes among the different theories of or about (the nature of) law. Legal theorists are frequently to blame for the failure of clearer discussion about methodological issues, as they are often not as clear as they might be regarding the nature of claims they are making (e.g., descriptive versus prescriptive, conceptual versus empirical) or regarding the larger project of which their theories are a part. This entry attempts to offer a rough overview of the types and purposes of legal theory. The focus is primarily on theories about the nature of law. Other types of theories – e.g., regarding rights or the best approach to legal or judicial reasoning – may warrant a different analysis.
In general, one might divide theories about social practices and institutions roughly into three broad categories: (1) descriptive theories – theories that purport to state what is the case, offering an overview of current practices or understandings; (2) analytical or conceptual theories – theories that make claims about the intrinsic or necessary nature of some practice or institution; (3) theories which contain elements both of description and prescription; and (4) purely prescriptive, normative or critical theories – theories that argue for how practices or understandings should be reformed. (As will be discussed, the second category, analytical/conceptual theories, can also be seen as a subset of the first category, descriptive theories.) The categories will be discussed, in turn, in the coming sections (1.1, 1.2, 1.3, 1.4). Later sections will offer brief discussions of the related questions of whether methodological questions are specific to legal theory (2.0), the ontology of law (3.0), and the purposes of legal theory (4.0).
1.1 purely descriptive theories
Legal theorists often refer to their theories as “descriptive” – but “descriptive” comes in many variations, some of which, like analytical and conceptual theories, are sufficiently distinctive that they will be discussed separately in the next section, 1.2. There are also interesting types of theories that seem to be neither descriptive nor prescriptive, but to be, in some ways, in-between. Those types of theories are discussed in section 1.3.
In general terms, a theory is “descriptive” if it purports to describe what is the case, rather than to make judgments about the (moral or other) value of the current situation, or to offer arguments for how things should be done differently. Many types of theories that are about law, but are not “jurisprudential theories” (narrowly understood), are clearly descriptive: e.g., sociological, anthropological, and psychological theories about the way people behave in legal roles or in response to legal regulation; and historical accounts of why particular legal systems developed the way they did.
When one is offering a theory meant to range over a large number of instances of some institution or practice (across jurisdictions, or over time), there is always the problem of how to combine the data. For example, how does one have a “theory of law,” when legal systems (however understood) clearly differ from country to country and in any given country over time? To try to offer a purely descriptive theory of a vast social practice like law seems at risk of becoming little “more than a conjunction of lexicography with local history”. (Finnis 1980, 4).
One needs some means of organizing the data that is the subject of one’s descriptive theory, and there are debates within the literature regarding how such selection can or should be done. For example, John Finnis accused Hans Kelsen of having erred in his construction of a theory of law, in that Kelsen purportedly tried to find a “lowest common denominator” – that which was common to all legal systems – rather than doing as Finnis argued should be done in such cases: finding what was characteristic of law in its fullest or most mature instantiation, even if some, or even many, legal systems did not have all of these characteristics. (Finnis 1980, 9-11)
Also, though a theory may not be “prescriptive” in the sense of suggesting reforms of current practices, to make some point about nature or purpose, the theory will likely emphasize some aspects of the practice and/or downplay others. For this purpose, many writers (e.g., Waluchow 1994, 15-29; Raz 1994, 219-221) differentiate forms of non-moral evaluation needed to construct descriptive, conceptual or analytical theories from any sort of moral prescription.
H. L. A. Hart famously argued for organizing a theory of law by viewing the practice at least in part from the perspective of a participant who “accepts” the legal system as giving him or her reasons for action. (Hart 1994, 79-91) Though this “hermeneutic” approach to theory construction is not universally accepted, even Ronald Dworkin and John Finnis, who criticize Hartian legal positivism in particular and the project of purely descriptive legal theory in general, accept the idea of building a theory around an insider’s perspective (though their ideas about how to build on an insider’s perspective differ in important ways from Hart’s views). (Dworkin 1986; Finnis 1980, 3-18; see generally Bix 1999).
1.2 ANALYTICAL OR CONCEPTUAL THEORIES
Many jurisprudential theories purport to offer true claims about law generally. Such theories are usually making analytical or conceptual claims about law, as opposed to making a claim that applies only to a particular legal system — at a particular moment in time. (Also, there are some theorists for whom it is not clear whether their theories are best understood as conceptual or as “merely” descriptive — e.g., this seems to be a matter of ongoing debate regarding the best characterization of John Austin’s work (Cotterrell 2003, 81-83).)
“Analytical” or “conceptual” theories usually purport to be “descriptive”, in the sense that they purport to describe the way things are rather than to criticize or to prescribe. However, such theories are usually not “merely descriptive”, in the sense that the theorists is doing more than merely reporting data or observations.
Conceptual analysis usually involves a philosophically ambitious claim that the theory has captured what is “essential” to some concept of practice, characteristics “necessary” for a practice or institution to warrant the label in question. While such claims about “nature” and “essence” were traditionally associated with Platonic metaphysics, there are less metaphysically ambitious modern versions of such claims. (e.g., Bix 2003b). For example, Raz (1996) defends an understanding of legal theory as conceptual analysis, and in doing so argues that it such theories try to explain “our concept of law”, not some universal or timeless (Platonist) concept of law. For Raz, legal theory is an attempt to get a clearer insight into an idea that is central to a community’s self-understanding.
Hans Kelsen’s “pure theory of law” (reine Rechtslehre) (e.g., Kelsen 1967; 1992) can also be seen as a special form of analysis, one grounded on a neo-Kantian methodology. At its essence, Kelsen’s theory is an effort to determine what follows from the fact that people sometimes treat the actions and words of other people (legal officials) as valid norms.
There have been a number of challenges to the value or tenability of purely descriptive or descriptive-conceptual theories in jurisprudence. Some of the challenges have come from various versions of natural law theory (e.g., Finnis (2000)), an approach that asserts that moral objectives and moral ideals are inherent to the nature of law, and therefore central to its understanding.
John Finnis (2003) has also offered a separate challenge: that if the descriptive/conceptual theory of legal positivism is understood as determining the nature of law, where this “law” is understood as separate from the normative question of how judges should decide cases (see, e.g., Raz 1998, 4-6) or how citizens should act in the face of government decrees, then this is an uninteresting and unworthy inquiry.
A different sort of challenge has come from those who doubt conceptual analysis either generally, or at least in areas where the concepts have normative overtones. The general challenge comes from naturalism (not to be confused with natural law theory, naturalism argues for a more empirical or scientific approach to topics, like epistemology, formerly approached in an a priori or conceptual way), and has been advocated in legal philosophy primarily by Brian Leiter (2003). Leiter, building on the well-known philosophical work of W. V. O. Quine (1951), claims that there are no “conceptual” truths to discover, and that theorists about law (or judicial reasoning or other legal phenomena) should confine themselves to empirical investigations of actual practices.
The “normative” challenge to descriptive conceptual analysis asserts that conceptual analysis of a concept like “law” (or “democracy” or “justice”) is inevitably contestable and evaluative. (e.g., Dworkin 2004; Perry 1998). Stephen Perry argues that one must inevitably choose among alternative tenable theories about law, and that this selection must be made on political or moral grounds. Ronald Dworkin’s interpretive theory of law portrays theories about (the nature of) law as theories that attempt to show the value of legality as part of a larger web of political and moral values.
1.3 BETWEEN DESCRIPTION AND PRESCRIPTION
Despite the commonly accepted distinction between description and prescription, there are a number of approaches and types of theory that seem to lie uneasily somewhere on the spectrum between “purely descriptive” and “purely prescriptive”: (1) “Semantic theories.” Ronald Dworkin famously characterized H. L. A. Hart’s theory of legal positivism as being best understood as a semantic theory – a definition about the meaning of the word “law.” (Dworkin 1986; 2004) However, this characterization was rejected by Hart himself, as well as most commentators. (Hart 1994, 244-248; Endicott 2001; for a defence of Dworkin’s claim, see Stavropoulos 2001). At a minimum it is worth noting that no theorist proferring a theory of law has characterized his or her own theory as being (“merely”) a definition of the word “law.”
(2) Variations on descriptive theory. Even descriptive theories themselves often seem to deviate from pure description. As was summarized earlier, the construction of a theory about some social institution or practice requires some amount of selection or simplification: (a) to prevent the theory becoming simply a messy restatement of complex reality; (b) to allow the theory to extract some basic insight about the institution or practice; and/or (c) to allow the theory to focus on the “fullest” or “highest” instantiation of the institution or practice, rather than what appears to be common to all instantiations. These forms of selection within descriptive theory come under various titles: “principles of theory construction” (e.g. Waluchow 1994, 19-21), emphasizing important features, and Weber’s “ideal types” (cf. Finnis 1980, 9-11).
(3) Rational Reconstruction. Within doctrinal legal scholarship, it is conventional (in many countries) for commentators to try to restate court decisions, or whole areas of law, in a way largely consistent with the outcomes of the cases, but restating the justifications offered to make them more persuasive. (In common law countries, such restatements of areas of law that had been primarily developed by judges – like Contract Law, Tort Law (e.g., Owen 1995), and Property Law – sometimes go under the title, “Philosophical Foundations of the Common Law.”)
(4) Ronald Dworkin’s Interpretive Approach. Dworkin’s influential legal theory (e.g., Dworkin 1986) is grounded on the “constructive interpretation” of official actions. (“Constructive interpretation” is the principle Dworkin would have applied not only for resolving legal disputes, but also for constructing theories about the nature of law.) For law, Dworkin would have judges decide cases by first finding the theory of past official actions (legislation, constitutional provisions, and judicial decisions) related to the dispute that would simultaneously adequately fit those past actions while making that area of law the best it can be (morally or politically). Dworkin’s interpretive approach, if followed in practice, would likely approximate “rational reconstruction”.
1.4 Prescriptive theories
Along with descriptive theories, and the variations of descriptive theories, described above, theories can of course be prescriptive: not focusing on describing current practices, but focusing instead on urging a new or reformed practice. The role of such theories in modern legal theory will be discussed more fully within the overview of purposes of legal theory (4.0).
2.0 ARE THE QUESTIONS SPECIFIC TO LEGAL THEORY?
Many legal theorists seem insufficiently attentive to the work already done elsewhere in social theory regarding the problems of theory-construction. For the most part, theories about law will raise the same questions as theories in other social sciences. For example, one way to distinguish theories is to take into account different schools of social theorizing: e.g., whether the focus is on individuals or on structures, and whether the basic account of social action is behavioristic or hermeneutic (also sometimes called “interpretive” or “Verstehen”). (Bix 2003a, 7-8; Lucy 1999, 17-32). This distinction has its greatest force in theories of social action within legal systems – e.g., theories of judicial behaviour – but it also has implications for more abstract theories of law. For example, H. L. A. Hart’s criticism of John Austin’s command theory of law, and Hart’s subsequent development of his own version of legal positivism, is centrally understood in terms of a hermeneutic rejection of a more empirical or more “scientific” approach. (Hart 1994, 18-123; Bix 1999) Already mentioned is the critique by some commentators of conceptual theories of law on the basis that such theories are generally unsupportable in law.
This is not to claim that there is nothing distinctive about law or legal theory. For example, theories of law may be distinctive in that law seems to function both as a kind of social institution and as central to our practical reasoning (e.g., Finnis 2000, 1602-03); and this “double life” may be a key to understanding the difficulty in constructing a theory about the nature of law.
3.0 ontology (Basic building blocks)
One type (or topic) of legal theory involves a metaphysical (ontological) explanation of law and legal concepts. The Scandinavian legal realists, in particular, focused on this question, though aspects of such questions can be found in a wide range of other theorists. The Scandinavian realists, building on views that paralleled (though did not equate with) logical positivism, were sceptical of entities that could not be understood in terms of observable, empirical data. (e.g., Hägerström 1953, Ross 1957, Lundstedt 1956, Olivecrona 1971)
If one rejects the metaphysical/ontological challenge of the Scandinavian legal realists, one is still faced with questions regarding the metaphysical status of concepts and claims used in legal practice. This inquiry is sometimes presented from a different perspective: in terms of the nature of legal truth, or even general questions of legal reasoning. For legal truth: when one says that a certain law-related claim is correct (“X has a right to possession of A” or “there is a valid contract between R and S”), in light of what is that claim true or false? None of the obvious alternatives seems attractive. On one extreme, already discussed, is the metaphysically sceptical position that demands that legal concept be reduced to observable, empirical terms. A different sort of sceptical view would argue for reducing legal concepts to descriptions and predictions of official actions. This perspective, sometimes described as a “predictive theory of law”, has some initial attractions, but also well-known weaknesses. (e.g., Hart 1994, 88-91)
At the other extreme would be a kind of Platonism in which legal concepts are thought to correspond with metaphysical entities (one modern theorists whose work sometimes comes close to this sort of Platonism is Michael Moore (e.g., 2000)). Related efforts try to ground the objectivity underlying legal concepts through a kind of “natural kinds” analysis, derived from theories of meaning and reference. (Stavropoulos 1996)
Various attempts have been offered to create a middle position – one purportedly more in line with common understandings of terms, without requiring commitment to ambitious or unusual metaphysical claims. Among the more prominent such theories are institutional fact theories (e.g., MacCormick & Weinberger 1986) and Dworkin’s interpretive theory of law (Dworkin 1986). Alternatively, some theorists have simply urged that one can avoid possible ontological issues by equating the meaning of legal terms and concepts with the rules for their use – a response to metaphysical questions similar to that urged by Ludwig Wittgenstein. (Hart 1954; Bix 1995)
4.0 Purposes of legal theory
As earlier mentioned, the topic of the purposes of legal theory is intimately tied up with the topic of the nature(s) of legal theory. A wide variety of purposes are served by theories about law. Some theories, especially those purporting to be analytical or descriptive, can be justified on the narrow basis of seeking truth and knowledge. Here such knowledge can be seen as the straightforward collection of facts that would result from a simple description, or the deeper sort of insight or understanding that might result from a quasi-descriptive model. (However, such knowledge, once gained, might also then play a role in an evaluative or prescriptive theory — a point important to the writings of a number of theorists, including both Jeremy Bentham (1996 ) and H. L. A. Hart (1958).)
In discussing types of descriptive theories, including analytical and conceptual theories (1.1, 1.2, 1.3), it was noted that many commentators argue that it is necessary, or at least valuable, for the construction of a theory of law to involve some amount of evaluation and selection. This view entails certain ideas about theories of law: that a certain lack of fit with the data is an acceptable cost for the insight a good theory might offer. (A comparable point is often made generally about modelling of behaviour, both in the physical sciences and the social sciences.)
A related point: jurisprudential theories are often offered as “explaining” a social practice or institution. “Explanation” is a central, but frequently poorly articulated, notion in discussing the point of descriptive theories. The reason one might put up with some simplifications, or even distortions, of the empirical reality in a (descriptive) theory is the benefit a good theory can offer by way of “insight” – showing something central to the nature of a social practice, or at least something interesting all instances of some category of practices or institutions seem to share.
Relevant to the earlier discussion of “rational reconstruction” (1.3), it should be noted that it often plays a significant role in the teaching of law and the training of legal advocates. However, the “rational reconstruction” used in teaching legal advocacy might differ in small but significant ways from the one offered for purely scholarly purposes. An advocate must have an eye not only to the best reconstruction of a muddled doctrinal area, but also the reconstruction that would seem best to the judges this advocate would face. Thus, if the best reconstruction of the prior cases would justify some right, but the current members of the country’s highest court are unlikely to recognize the right, the advocate might be better served by a reconstruction that excludes that right (at least until the membership on the highest court changes).
Critical theories of law aim more towards reform of current laws and practices rather than (mere) increased knowledge of or insight into those laws and practices. Many of the influential American legal theories of the 20th and 21st century – from American legal realism to law and economics, and including critical legal studies, critical race theory, and feminist legal theory – are best understood as being essentially criticisms of the current approach to legal regulation and/or judicial decision-making, combined with suggestions for how the system could be improved. (The reform- or justice-centred nature of critical legal studies, critical race theory and feminist legal theory are relatively self-evident. American legal realism and, especially, law and economics, may be harder cases, as both include claims that seem to be descriptive or analytical – that seem to be claims about the basic nature of rules, decision-making or law generally. However, both schools of thought are grounded on a view that law is instrumental, and the question quickly becomes, for theorists in both schools, either which ends law should pursue or how best to achieve the ends already chosen.)