Ways of Understanding Diversity among Theories of Law

Author(s): Michael Giudice

Source: Law and Philosophy , Sep., 2005, Vol. 24, No. 5 (Sep., 2005), pp. 509-545
Published by: Springer

Stable URL: https://www.jstor.org/stable/30040358

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Law and Philosophy (2005) 24: 509-545 c Springer 2005
DOI 10.1007/s10982-004-4118-8

MICHAEL GIUDICE

WAYS OF UNDERSTANDING DIVERSITY AMONG

THEORIES OF LAW

(Accepted 14 September 2004)

If there is any safe dzescription of the course of con

legal theory it is this: diversity reigns. The diverse c
of legal theory include moral, political, or normativ
descriptive-explanatory theories, social scientific th
various kinds, and participant or internal as oppose
participant or external theories of law and legal ph
What is the best way to understand this situation of co
missed connections, and perhaps even missed conflic
paper I work in three steps toward the thesis that
particular kind of valuable continuity which ought t
sued between many of these apparently disparate ap
First, I identify and explain what I call, following H
`imperialism' in legal theory.1 Imperialism is the attem
and demonstrate the truth of a single methodologica
to understanding law. Any theory which does not a
method claimed to be the proper one is inadequat
imperialism has done much to obscure debates about
legal theories, because it has tended to privilege one
theoretical approach over complementary or compe
proaches whose independent merits deserve serious
In the second part I introduce a second view of diver
can simply be called 'difference' in legal theory. The
view maintains that theories should be distingu
understood in light of their avowed purposes, such that
of different types cannot be viewed as competiti
principal aims are fundamentally different. I argue

1 H.L.A. Hart, The Concept of Law, 2nd edn. (Oxford: Claren

1994), p. 243.

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510 MICHAEL GIUDICE

difference view provides an insig

wards the best way to understan
law. In the third part I defend a
particular the descriptive-explan
analysis best employed by Hart.
account of the nature of concept
to a third view of diversity in l
`continuity'. A commitment to co
of seeking to understand and pur
approaches to understanding law
shall argue, lies in recognition th
connected by both complementar
is on this last ground that the me
continuity presents both a more
imperialism and a necessary modifi

I. IMPERIALIST WAYS OF THEORIZING ABOUT LAW

One way to approach the diversity of perspectives

legal phenomena is to claim supremacy for a par
proach, as the only or most important way to a true o
understanding of law. The practice of this widely-h
take all' commitment involves the attempt either to
disvalue alternative approaches, by showing that
proaches or methods will miss or distort what is
about law and its practice. The goal of this commitm
I think is usefully characterized as imperialism in lega
to command attention to a particular method, as t
method which all theories of law must adopt. Fo
Richard Posner is well known for his dismissal of Hartian
conceptual analysis and Dworkinian moral theorizing ab
law, in favour of a more social scientific, specifically so
economic, study of law. In the context of constitutional la
theory Posner writes "[c]onstitutional scholars would be m
helpful to the courts and to society as a whole if they examine
constitutional cases and doctrines in relation not to what pa
as theory in jurisprudential circles but rather to the so
context of constitutional issues, their causes, their costs,

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 UNDERSTANDING DIVERSITY 511

their consequences."2 More generally Posner

proper methods of inquiry are therefore th
pragmatic decision making — the methods of
common sense."3 The picture of law Posn
complex interplay of social causes and effec
the meta-theoretical contention that social science, which
investigates, studies, and tracks social causes and effects, costs
and consequences, is the required approach to understand law
properly. What makes Posner an imperialist in legal theory is
that he intends these methodological commitments to exclude
or replace other approaches, of the sorts offered by Hart and
Dworkin. Posner assesses analytic jurisprudence and its prac-
titioners as follows:

I have nothing against philosophical speculation. But one would like it to

have some pay-off; something ought to turn on the answer to the question
`What is law?' if the question is to be worth asking by people who could use
their time in other socially valuable ways. Nothing does turn on it. I go
further: the central task of analytic jurisprudence is, or at least ought to be,
not to answer the question 'What is law?' but to show that it should not be
asked, because it only confuses matters.4

Yet imperialist claims are not only made for social science.
To avoid a possible misunderstanding of the aim of my argu-
ment, even legal positivism has been guilty of privileging its
method in legal theory. Hans Kelsen's attempt to 'purify' legal
theory provides a good illustration of an analytic study of law
which sought to exclude or disvalue social scientific and moral
or political approaches to law and legal phenomena. The
opening passages of the second edition of the Pure Theory of
Law clearly mark Kelsen's motivation to privilege descriptive

2 Richard A. Posner, The Problematics of Moral and Legal Theory

(Cambridge, Massachusetts: Harvard University Press, 1999), p. x.
3 Ibid., p. viii. Posner's championed approach of course has a rich history
in the legal realist tradition. In particular, Oliver Wendell Holmes Jr.
forcefully argued that history and economics, and not philosophy or moral
theory, were the key disciplines from which to understand law. Holmes, 'The
Path of the Law', Harvard Law Review 115 (1897): p. 469, 474.
4 Richard A. Posner, Law and Legal Theory in England and America
(Oxford: Clarendon Press, 1996), p. 3.

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512 MICHAEL GIUDICE

explanation about what law is fr

obscure the 'science of law':

The Pure Theory of Law is a theory of positive law. It is a theory of positive

law in general, not of a specific legal order ... As a theory, its exclusive
purpose is to know and to describe its object. The theory attempts to answer
the question what and how the law is, not how it ought to be. It is a science
of law (jurisprudence), not legal politics ... It is called a 'pure' theory of law,
because it only describes the law and attempts to eliminate from the object
of this description everything that is strictly not law: its aim is to free the
science of law from alien elements. This is the methodological basis of the
theory ... Such an approach seems a matter of course. Yet, a glance upon
the traditional science of law as it developed during the nineteenth and
twentieth centuries clearly shows how far removed it is from the postulate of
purity; uncritically the science of law has been mixed with elements of
psychology, sociology, ethics, and political theory.5

In Kelsen's view moral theory and social scientific approaches

only act as obstacles or distorting presences in the pursuit of
knowledge of what and how law is. To understand properly or
correctly what law is, moral theory and social scientific ap-
proaches must therefore be eliminated from legal theory; this is
what purification demands. What is left as the exclusive ap-
proach in legal theory are analytic methods, used to elucidate
and describe the key logical features of law or legal concepts.
Still yet, imperialism is not only advanced in social scientific
jurisprudence and descriptive-explanatory theories of law and
legal concepts. It is also clearly exhibited in natural law theory
and its contemporary variants which maintain some sort of
necessary connection between law and morality. For example,
John Finnis and Ronald Dworkin share the commitment that
any adequate or serious theory of law must engage in a form of
moral construction yielding a picture of law which satisfies cer-
tain normative standards and so is practically useful and desir-
able to participants. Writing generally about the aims of his
natural law theory and the tradition in general, Finnis insists that

[w]hat truly characterizes the [natural law] tradition is that it is not content
merely to observe the historical or sociological fact that 'morality' thus
affects 'law', but instead seeks to determine what the requirements of

5 Hans Kelson, Pure Theory of Law, 2nd edn. (Berkeley, Los Angeles:
University of California Press, 1970, translated by Max Knight), p. 1.

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 UNDERSTANDING DIVERSITY 513

practical reasonableness really are, so as to afford a rati

activities of legislators, judges, and citizens.6

For Finnis, to 'determine the requirements of

sonableness' for the creation, interpretation, an
legal social order is the overriding purpose of le
is the only way to a true understanding of law.7 M
in Taw and What I Truly Should Decide'8 Finni
what he supposes to be the 'primary reality of
believes provides the proper focus or attention
law. In the following passage he makes plain h
that legal theories must be from and for partic
tives, from which it follows, he believes, that the
morally committed:

The life of the law, more precisely its primary reality, is n

conceptual coherence or of understanding what other p
or said or stipulated or commanded or enacted, nor in
cause and effect and patterns of recurrence ... The primary
rather in its claim, as itself a moral requirement, on my
what to decide — that is, what to judge about the options a
what to choose and do once I have made my judgement.
positive law's existence — as a morally legitimate and c
conditionally and only defeasibly compelling, claim on my a
thinking what to do as a plain citizen (child or adult), a judg
a tax inspector, or executor, and so forth — is the primary

The notion of 'the primary reality of law' is mean

demand attention to the explanation and elabo
ciples of right practical reasoning which will b
ticipants in life under law. Any theory of law w
something else, for example descriptive-explana
or causes and effects, is missing the point o
Similarly, Dworkin places the following deman
ory: "[g]eneral theories of law ... are construct

6 John Finnis, Natural Law and Natural Rights (Oxford

1980), p. 290.
7 See Finnis, ibid., pp. 357-359, for his general di
rejection of legal positivism.
8 Finnis, Taw and What I Truly Should Decide', Amer
Jurisprudence 48 (2003): 107-129.
9 Ibid., pp. 112-113.

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514 MICHAEL GIUDICE

tions: they try to show legal pract

to achieve equilibrium between lega
the best justification of that p
point "[a] conception of law must
be law provides a general justifica
cive power by the state ..."11 Lik
social scientific or causal approach
legal phenomena with misfocus
dence' Dworkin evaluates the so
dence' made popular in the Unit
emphasis on fact and strategy en
dential issues in much the same
approach distorted them, that is,
sues of moral principle that form
pages later he concludes "... if ju
must expose these issues [of mora
issues of moral theory."13 This imp
meant to disvalue — in the theoretical illumination of law and its
practice — causal explanations of law and legal phenomena,
such as those offered by the social sciences, namely economics,
sociology, psychology, and history. Although Dworkin recog-
nizes that historical facts may be of some use for the interpre-
tation of legal documents such as constitutions, in Law's
Empire he writes

Theories which ignore the structure of legal argument for supposedly larger
questions of history and society are ... perverse. They ignore questions
about the internal character of legal argument, so their explanations are
impoverished and defective ... It was Oliver Wendell Holmes who argued

10 Ronald Dworkin, Law's Empire (Cambridge, Massachusetts: Harvard

University Press, 1986), p. 90.
11 Ibid., p. 190. Commenting on this quotation Julie Dickson observes
that "[Dworkin's] position, in effect, is that there is no alternative to the
approach which he adopts: all legal theories which are worth considering
seriously presuppose or depend upon arguments about law's function which
are broadly similar to those advocated in his own theory." Dickson, Eval-
uation and Legal Theory (Oxford: Hart Publishing, 2001), p. 113.
12 Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Har-
vard University Press, 1978), p. 4.
13 Ibid., p. 7.

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 UNDERSTANDING DIVERSITY 515

most influentially, I think, for this kind of 'exter

depressing history of social-theoretic jurisprudence in
how wrong he was.14 [author's notes omitted]

In light of these examples of the nature

imperialism in legal theory I think two
particular commitments ought to be kept
dimension is that regardless of type — desc
morally constructive, or social scientific — ea
offer a particularly illuminating account of la
This theoretical commitment is unobjection
necessarily shared by any theory of law
explanation, clarification, interpretation, et
theoretical, dimension is that regardless
particular theory's explanation of law, the
claims to be of the type or kind of approa
adopted. So, for example, regardless of wh
particular theory of moral evaluation is suc
theories must still attempt moral evaluat
regardless of whether this or that particu
theory of law is successful, competing the
social scientific theories. It is with the imperi
second dimension or meta-theoretical comm
have found, for good reason, to be misguided and
counter-productive.

II. DIFFERENCE IN LEGAL THEORY

A common reaction to imperialism constitutes the

of the diversity of approaches to law identified at
This view is that we must be careful to distingui
types of theories, because theories can and do dif
aims and purposes. Failure to distinguish, or inse
differences in aim or purpose, often leads us to see a
terms of conflicts where conflicts do not really exis
is not difficult to find expressed the 'difference' o

14 Dworkin (1986, p. 14). For an excellent critique of Dw

rialism, see Brian Z. Tamanaha, Realistic Socio-Legal Th
Clarendon Press, 1997), pp. 183-187.

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 516 MICHAEL GIUDICE

poses' view of diversity in legal

Harris, after identifying five diff
asks

Where, in this welter of meta-theoreti

The answer is that the law is not some
dently of a focus of interest. Is one eng
science, or in political philosophy,
anthropology? Answer that, and then
`rule' or 'system' will be the primary po
that discipline is concerned.15

In "What is Jurisprudence Abo

Concepts, or Conceptions of Law

The argument of this paper is that phil

terms are used synonymously here) se
different purposes generate different kin
to keep distinct. Much of the dispute b
stems from their proponents seeking diff
confusion has resulted from scholars im
theory as another type.16

Even Hart suggests at one poin

Dworkin's conception of legal the
so as not to admit of any genera
why there should be or indeed co
between enterprises so differen
conceptions of legal theory."17
Although it is certainly true that
theories of law which, because o

15 James Harris, Law and Legal Scienc

p. 166.
16 Michael Bayles, 'What is Jurisprudence About? Theories, Definitions,
Concepts, or Conceptions of Law?', Philosophical Topics 18(1) (1990): 23. In
a related article Bayles also writes that "[t]hese different viewpoints even
generate different standards for a theory. An external observer wants to
make the descriptive theory the best it can be; the participant wants to make
the law the best it can be." Michael Bayles, 'Hart vs. Dworkin', Law and
Philosophy 10(4) (1991): 380.
17 Hart (1994, p. 241).

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 UNDERSTANDING DIVERSITY 517

admit of general conflict, this view can mis

the difference view may encourage the belief
of difference in approach or purpose amoun
among theories of law. For example, com
claim Joseph Raz writes "[h]aving decid
Postscript to deflecting or refuting Dworki
own views, [Hart] is content to point out t
oretical aims are different from his, as if
compatible." 19 The problem the difference vi
only does it threaten to leave us with a f
standing of law, composed simply of diver
but more importantly that it also runs the da
obscuring remaining conflicts. As an example
in legal theory works and how it can fail, con
account.

In a recent article John Eekelaar claims that the appa

incompatibility between the legal positivist Social Thesi
Dworkin's Coherence Thesis can be resolved by distingu
between a citizen's conception of law and a judicial conc
of law.2 Eekelaar begins with the sensible observatio
"... there is no reason to suppose that all participants sha
same point of view, or that that of participants in the
process, especially judges, is the only relevant one."21 Ee
continues lain observer might discern, within the ob
phenomenon, various types of participant, on whom th

18 I should note however that it is difficult to assess fully the differ

views of Harris, Bayles, and Hart, mainly because none fully cons
their remarks in a meta-theoretical light, with meta-theoretical implic
For this reason I consider introduction of the difference view to be
tant, and worthy of specific attention.
19 Joseph Raz, 'Two Views of the Nature of the Theory of Law: A
Comparison', in Jules Coleman (ed.), Hart's Postscript (Oxford: Ox
University Press, 2001), p. 27.
20 Eekelaar, 'Judges and Citizens: Two Conceptions of Law',
Journal of Legal Studies 22 (2002): 497-516. Briefly, the Social Thesis
Eekelaar associates with Raz's exclusive legal positivism, maintains
law is source based. The Coherence Thesis maintains that all law con
source-based law together with the morally soundest justification
source-based law. Ibid., p. 497.
21 Ibid., p. 498.

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 518 MICHAEL GIUDICE

nomenon acts differently, and for

a variety of meanings."22 With t
argument:

[m]y argument is that the Social Thesis well represents the function of the
law in its relationship between citizen and the state, but that, while it may
partly account for the role of law in adjudication, it does not necessarily
apply in that context, and the Coherence Thesis provides a better expla-
nation of the institutional role fulfilled by the law for adjudicators.23

In explanation Eekelaar notes, for example, that from a citi-

zen's perspective sometimes the law is best explained as having
run out, because there may arise fact situations which are not
covered by source-based law. However, from the judge's point
of view the law never runs out, because the distinction between
application and creation of law does not apply in the context of
adjudication. In reaction to a distinction upon which Raz relies,
Eekelaar explains
The sharp conceptual distinction drawn by Raz between judicial application
of law (identified by relevant sources) and the creation of new law (governed
by 'ultimate rules of discretion'), both of which impose duties on the courts,
though he recognizes they may be difficult to separate in practice, has no
place in the judicial conception of law, for two reasons. First, the inter-
pretive power permits 'new' law to arise in applying source-based provi-
sions. Second, the conclusions generated by the 'laws of discretion' indicate
that apparent 'new' law could be seen as applying existing legal principle. In
fact, the best characterization of judicial decision is one of reconstitution of
existing law.24

There are two problems with Eekelaar's argument about the

compatibility of the Social and Coherence theses. First, al-
though Eekelaar has attempted to preserve the insights to be
had by not restricting explanation of law to the perspective of
only one type of participant, he seems to have turned a practical
constraint faced by judges into a conceptual feature of adju-
dication. Even though there may be strong pressure for judges
not to alter or create new law, and so they may be forced to
present their activities in ways which respect this pressure, as a

22 Ibid.
23 Ibid.
24 Ibid., pp. 510-511.

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 UNDERSTANDING DIVERSITY 519

matter of accurate theoretical explanation t

acting as quasi-legislators.25 Second, Eekelaa
tween a citizen's conception of law and a jud
law leaves us with a contradiction about the nature of law. For
the citizen sometimes the law may be uncertain or indetermi-
nate. For the judge the law might be uncertain (though they can
never present it as such) but is never indeterminate. This is
precisely the sort of problem which can arise for the difference
view: we are left not only with different views about the nature
of law with no explanation of how they are theoretically con-
nected, but also with the possibility of conflicting propositions
about law which are not identified as such. The problem for
Eekelaar is only compounded when he admits that in practice
the judicial conception can override or be overridden by the
citizen's conception of law.26 How is this possible, and from
whose perspective or conception of law is such a statement
being made?27 I believe Eekelaar's failure to go beyond a dif-
ference view of participant perspectives supports the following
conclusion: although it is important to consider how law ap-
pears to a diversity of participants or from a diversity of per-
spectives, we must take seriously the further question 'what is it
about law such that it appears in the ways that it does to var-
ious participants?'. To get beyond the difference view we need
an account which recognizes distinctions yet also pursues con-
nections; otherwise we may be left with highly unstable
differences which in fact conceal remaining conflicts.

25 For example John Mackie observes that "... there is a distinction — and
there may be a divergence — between what judges say they are doing, what
they think they are doing, and the most accurate objective description of
what they actually are doing. They may say and even believe that they are
discovering and applying an already existing law, they may be following
procedures which assume this as their aim, yet they may in fact be making
new law." Mackie, 'The Third Theory of Law', Philosophy and Public
Affairs 7 (1977): 3-16, p. 7. See also Hart (1994, pp. 274-275).
26 Eekelaar (2002, p. 515).
27 Eekelaar's argument that the conception of law to be adopted in
practice depends on the best practical consequences is theoretically unsat-
isfactory. Ibid., pp. 513-516. The practical consequences of a theory of law
have no bearing on its truth or explanatory power. See Wil Waluchow,
Inclusive Legal Positivism (Oxford: Clarendon Press, 1994), pp. 88-90.

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 520 MICHAEL GIUDICE

The preceding discussion does no

ference views in legal theory.
William Twining and Brian Tam
jurisprudence in general is guilty o
its object of study.28 Twining an
for example, privileges 'state law
while unjustifiably excluding fro
law international law, religious la
kinds of phenomena referred to
anaha writes

The problem is not that Hart's privileging of state law is ethnocentric,

though it is open to that charge. My objection would be just as strong had he
appointed primitive law to be the paradigm case of law. The problem with
his approach is that he felt compelled to identify a single concept of law — the
concept of law — at all. Hart began with what he thought was the standard
case — state law — then elaborated on the important features of this standard
case. John Finnis labels this procedure the identification of the central case
and focal meaning. This manner of identifying key features is not in itself
objectionable. The objection is the assumption that there is or there must be
a single standard or central case; indeed the very terms 'standard' or 'central'
carry this implication. This makes it more difficult to conceive of the pos-
sibility that there are several distinct phenomena — severally distinct different
standard or central cases — of law, each with its own focal meanings. The
monotypic bent of essentialism points us down a single-minded track,
foreclosing other ways of conceiving of legal phenomena that convention-
alism might otherwise have resulted in if allowed to follow its own course.
Even Finnis, a leading proponent of natural law, succumbed to this, which
led him to observe that natural law 'is only analogically law'; and he awk-
wardly explained 'that is why the term has been avoided in this chapter on
Law'. 29

Tamanaha explains how socio-legal positivism overcomes the

essentialist or imperialist pitfalls of much analytical jurispru-
dence:

Socio-legal positivism recognizes that law is a human social creation. Law is

whatever we attach the label 'law' to. It will be unflinchingly conventionalist
in the identification of what law is. If law is attached by usage to more than

28 See Twining, Globalisation and Legal Theory (London: Butterworths,

2000), p. 14 and Tamanaha, A General Jurisprudence of Law and Society
(Oxford: Oxford University Press, 2001), pp. 150-152, 155-156.
29 Tamanaha (2001, pp. 150-151).

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 UNDERSTANDING DIVERSITY 521

one phenomenon, rather than picking one to serve as t

to evaluate the others, socio-legal positivism will acc
ferent kinds or types of law, each with its own char

As an initial — and by no means exhaustiv

distinguishes seven general categories of k
merit careful and individual consideration: s
law, religious law, international law, transn
enous law, and natural law.31
Socio-legal positivism represents an impo
contemporary legal theory, and deserves f
than I can give here. However, as an init
challenge there are two ways in which analy
can respond to the recognition that the labe
a diverse range of phenomena, and so genera
a much broader subject matter than hither
The first response might be that there is s
essence to all the various types of law, it is ju
discovered it yet or do not yet have the m
However, this is not the only response avail
interests of my general argument there is
sponse worth pursuing. A second response
view's argument about legal theory's object
observe that it is not and need not be the goal
general jurisprudence to identify an essenc
plains all instances or usages. Rather, the g
might be best understood to be the pursuit
up to a point, and then pursuit of conne
among diverse social phenomena. In other w
are not only the phenomena labeled law',
tions, both theoretical and practical, be
example, in a recent article Keith Culver
theoretical object of explanation is best un
law itself, but rather a set of theoretical re
Hart's professed goal to offer a philosophic
cept of law whose value lies in its clarity an

3 Ibid., pp. 151-152.

31 Ibid., pp. 224-230.

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522 MICHAEL GIUDICE

"broad and general understandi

supposes that Hart can be seen as
cept of law: law is explained in t
social phenomena, namely, mo
rules.33 There is no reason to
approach cannot be extended to e
such as law's relations to practi
gender, and social order. Such an
to explanation of relations betwee
example the relations between
indigenous law, and customary law
distinguish different kinds or ty
which flow from a relational appro
example, distinguishing religious
alerts us to their differences, but r
related, perhaps as competing sou
in terms of historically interdep
tinguishing state law from indige
us of some of the reasons why st
fail to present meaningful choice
In other words, the challenge po
diverse range of legal phenomena
mine an essence of law in gener
diverse range of legal phenomen
explaining the set of relations betw
is not that all legal phenomena be
under the same category, but th
plained in an integrated fashion.
There is and should be a comm
approaches to law: the broadest p
In reaction to imperialism, the d

32 Keith Culver, 'Leaving the Hart-

Toronto Law Journal 51 (2001): 367-39
33 In the opening chapter to The Conc
three recurrent issues in legal theory w
general theory of law: "How does law di
orders backed by threats? How does legal
it related to, moral obligation? What ar
affair of rules?" Hart (1994, p. 13).

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 UNDERSTANDING DIVERSITY 523

rightly suggests that some theoretical a

acknowledge that their contribution to this
However, my argument against the differe
though there are many viable approaches to
theoretical explanation, identification of di
ough, and for two reasons. First, mere ident
ences in aims or objects results in fragmented
that we are left with a collection of dispar
observations with no account of how they
ond, identification of differences in aim
encourage the belief that different theorie
composed of compatible sets of claims). T
belief is that it risks concealing — or diver
from — remaining conflicts between differ
ceptions. As I shall now argue, achieveme
possible understanding of law demands that
continuity be pursued. Such relations of conti
the possibility of conflict, yet not at the p
disvaluing alternative methods or approach

III. CONTINUITY IN LEGAL THEORY

There are three general sets of questions to keep in

thinking about social creations or institutions: (
about what has been created or introduced, so tha
distinguish, in a preliminary and revisable way
phenomenon under consideration from other phen
questions about why the social phenomenon was cre
the content it does in particular instances or in gen
why it persists, and how or why it disappears or di
and (iii) questions about whether and how the soci
enon should be criticized, justified, or constructed
certain desirable ends. That each set of questions is
clear: for any social creation it is clear that we ha
something, though stating what this something is oft
explanation; as social beings we also recognize that
completely free from causal influences or conte
economic environment, geographical location, a
religion, and culture; and although we are subject t

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524 MICHAEL GIUDICE

are also aware that we have choic

lective, about whether or how
context of legal theory these are
tions or observations, but broadly
social scientific, and moral or po
aim to show how and why contin
above sets of questions ought to b
argument depends, for reasons I
developing an account of the rol
analysis in legal theory.

A. Dworkin's Meta-Theoretical Charg

Consideration of a recent book r

particularly useful point of departu
`continuity' in legal theory.34
positivism is to be rejected not o
explanation of law, but worse still,
narrow approach to legal theor
methodological opposition to d
proaches in legal theory such as H
the following passages. First, h
drawn to their conception of law n
because it allows them to treat l
omous, analytic, and self-contain
Dworkin this leads them to "m
their philosophy of law either to
or to substantive legal practice,
explains the positivists' narrow
one of creating and defending th

Positivists since Hart ... have defended w

their work is conceptual and descriptive i
variety of other crafts and profession
philosophy is distinct not only from the
the academic study of substantive and p

34 Ronald Dworkin, 'Thirty Years On

1655-1687.

35 Ibid., p. 1656.
36 Ibid., p. 1678.

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 UNDERSTANDING DIVERSITY 525

practice and academic study are about the laws of

diction, whereas legal philosophy is about law in g
from and independent of normative political philo
ceptual and descriptive rather than substantive and no
from the sociology of law or legal anthropology be
disciplines, whereas legal philosophy is conceptual.
pline that can be pursued on its own with neither bac
training in or even familiarity with any literature or
narrow world and few disciples.37 [author's notes o

There is certainly a degree of truth in Dwo

Hartian conceptual analysis is not normati
losophy, nor is it sociology or anthropol
defenders do maintain that it can be don
engaging in any of these other fruitful direc
one thing to say what conceptual analysis i
define its 'guild', and quite another to s
does, that the distinct role of conceptual an
is unconnected to or ignores these other a

B. Continuity Between Conceptual Analysis and

Explanation

There are two under-appreciated features of conceptual

analysis which go a great distance in showing that Dworkin
offers a misleading picture of legal positivist method. I shall
consider the first feature in this sub-section and the second
feature in the next sub-section. First, legal positivists, in the
construction of philosophically-purposed concepts39 of law
and legal phenomena, are not just concerned to identify the

37 Ibid., p. 1679.
38 Dworkin's claims about positivism apply, with least distortion, to
Hans Kelsen's attempt to construct a 'pure' theory of law.
39 'Philosophically-purposed concept' or 'philosophically-constructed
concept' – the two are used interchangeably here – are terms of art. The
terms are meant to signify a structured set or collection of distinct yet
interconnected theses. For example, Hart's philosophically-purposed con-
cept of law might be understood to include the following seven theses and
the relations between them: the union of primary and secondary rules thesis,
the social rule thesis, the any reasons thesis, the open texture thesis, the
discretion thesis, the separation thesis, and the minimum content of natural
law thesis.

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526 MICHAEL GIUDICE

necessary features of law. It is tr

of legal positivism is to explai
exist. In this sense positivism s
features of law, that is, conditio
lish that law exists in particular
Hart argues that where there
secondary rules we can properly say
exists "... conduct is made in som
atory."4 However, in addition to
features of law, part of the met
identify significant contingent or
for example, Hart also claims th
essary truth that laws reproduce
morality,"41 and owing to 'relativ
ative indeterminacy of aim', gen
disputes or provide practical gui
In general, I believe part of wha
concepts of social phenomena do
of both necessary and contingent
There are two reasons why this
The first reason is that recogniti
tingent features and relations of
concepts and conceptual theorie
understood to invite or leave s
empirical disciplines. Consider fo
thesis. Hart notes that when officials follow a rule their reasons
for following the rule, and for criticizing others who diverge
from the rule, may differ. As he explains, "[officials'] allegiance
to the system may be based on many different considerations:
calculations of long-term interest; disinterested interest in oth-
ers; an unreflected inherited or traditional attitude; or the mere
wish to do as others do."43 Although Hart claims that it is a
general feature of law that officials see rules – and especially the
rule of recognition – as reasons for action, it is important to

40 Hart (1994, p. 82).

41 Ibid., pp. 185-186.
42 Ibid., pp. 126-128.
43 Ibid., p. 203.

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 UNDERSTANDING DIVERSITY 527

recognize that the any reasons thesis is no

rather it is indicative of the unwillingness
have been two reactions to Hart's any re
Dworkin and Finnis have criticized Hart
where things get interesting and importan
nis both argue that rather than simply iden
that officials can and do act on the basis of a
what is important is to determine what are th
reasons.44 In the process, so the argument
standing of law and its possibilities will emerg
useful set of arguments for practitioners. H
certainly true that Dworkin and Finnis are
their approach is necessary for a broad un
and its practice, it is not true that their a
necessary one. Accordingly, the second rea
reasons thesis is quite different. Instead
argument about the best or correct reasons
law, some have attempted to take seriously
gence in officials' allegiance to law by soci
For example, Brian Leiter argues that altho
has often been poorly understood, both by
opponents, its core claim is still indicativ
approach to one central feature of contemp
adjudication: "in deciding cases, judges resp
the stimulus of facts."45 According to Leit
Holmes, Frank, and Llewellyn were correct
often judges do not decide cases by applying
facts, but rather judges would choose the de
appropriate, and then search for legal rules
their decision. However, they also maintaine
were not unfettered or based on the person
the judge, but could be studied empirically
lated into basic sociological patterns yield
cessful predictions of future decisions. Car

44 See Dworkin (1986, pp. 13-14) and Finnis (1980

45 Brian Leiter, 'Rethinking Legal Realism: T
Jurisprudence', Texas Law Review 76 (1997): 269.

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528 MICHAEL GIUDICE

study of these sociological patter

`naturalized jurisprudence' .46
It is not clear why only the the
be naturalized, and not theories
dience (or disobedience) as well
continuity between Hartian con
naturalized jurisprudence is pr
thesis: because the reasons why o
can and do vary, as can the parti
rules, this leaves open the opport
gation of such reasons in part
though such reasons may be man
mean that particular patterns, for
do not exist. Indeed, identificatio
soning may contribute a great d
and function of law in different so
broad understanding of law in g
tion is that even though conceptua
answers to sociological or natural
it is nevertheless continuous w

46 Ibid., p. 302. It is worth noting tha

continuity: 'Results Continuity' and 'M
nuity "requires that the claims of philoso
results of successful sciences"; while M
that philosophical theories emulate the
explanation characteristic of success
However, given that philosophical theor
theories, it is unclear how Leiter maint
fixed or illuminated by empirical inquiry
(ibid., p. 302) yet also supposes that
Continuity both subject philosophical theo
the social sciences. It seems to me that
Continuity ought to be rejected as unh
social scientific version of imperialism in
47 Keith Culver also provides an illumi
in which Hart's notion of the internal asp
content. See Culver, 'Legal Obligation
Legal Positivist Theory of Law's Norm
176-211.

48 See also Tamanaha (1997, pp. 186-187).

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 UNDERSTANDING DIVERSITY 529

indeed can provide useful conceptual backdr

laries for more empirical approaches to law.
The second reason why it is important to
legal positivism and philosophically-constru
identify both necessary and contingent featur
of law is that it alerts us to the fact that philo
structed concepts are partly liable to empirical
ations in the phenomena. It is important to
cannot be overstated, that accounts of particul
or cultures may not only provide possible con
and abstract concepts of law or legal phenomen
provide reasons for revision or reconsideratio
cally-constructed concepts. This is how concep
conflict with social scientific observations. Fo
sider the conceptual claim that it is a necessar
the existence of a legal system that the gen
obey, for the most part, the primary rules of
Brian Tamanaha convincingly argues that this
reconsidered in light of the situation in Ya
About life under law in Yap, Tamanaha offers
account:

Yap had a legal system, with a legislature, a handful of judges

attorneys, a small police department, and a complete legal code
entirely on laws transplanted from the United States. But vast port
the Code had never been applied, few lay people had any knowledge
content of the laws or of the operation of the legal system, a large
portion of social problems were dealt with through traditional
without participation of the state legal system, and indeed on most
islands there was no legal presence at all ... For most Yapese, when
fronted with the law, it was like being confronted with the command o
alien sovereign, despite the fact that they were an independent country
this was their own legal system. While they did not routinely act in con
with the law (with the major exception that their culture perpetu
thriving caste system, while the law prohibited discrimination), it could
be said that they were obeying or complying with the primary r
Hart's terms, since they were ignorant of these rules and paid them
no heed.5

49 See Hart (1994, p. 116).

5 Tamanaha (2001, p. 145).

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530 MICHAEL GIUDICE

Anticipating a likely reaction, Ta

Although the overwhelming majority of

regard of the vast bulk of the rules of the
their state legal system did not exist. I
attorney-general for almost two years.
small) legal system, mostly occupied with
ment. The existence of state law in Yap
activities of legal officials ... Our social pra
a state legal system, recognized as such
which is what matters, regardless of gener

Modelled on the separation thes

"[t]he existence of law is one thing;
which functions it carries out is ano
fully agrees in the end with Tam
drawn from his anthropology o
observation seems clear: suppos
features of law are not completel
light of empirical observations
phenomenon, which means that it
constituted by how those in life u
it, a concept of law which fails in
borderline instances of law begins t
an account of social reality.53
However, as I noted, this observ
What is to keep us from saying
simply empirical generalizations
Hart's any reasons thesis, conce
something general and abstract a
generalization. What it means to fol
a reason for action, even though o
rule may vary. Conceptual claims
for understanding fixed, while p
and vary. Indeed, it is reasonabl
tempted to find an instance of fol
instance of being guided by a reas

51 Ibid., p. 146.
52 Ibid., p. 145.
53 It is worth pointing out that in a sense
after all, it is an instance of American la

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 UNDERSTANDING DIVERSITY 531

does not understand what a rule is. Put in dif

is theoretical space between general concep
phenomena, and rich and detailed accoun
stances of law. There must be such theoret
state of affairs where every particular inst
following gets its own concept (which in ef
concept at all). Philosophically-constructed
space between complete abstraction and em
explanation. But more needs to be said.
Implicit in the argument that conceptua
phenomena is partly liable to empirical shi
the view that part of the success of philoso
concepts of social phenomena such as law d
in social scientific investigations and expla
this sort of view Joseph Raz writes

Legal theory contributes ... to an improved underst

would be wrong to conclude ... that one judges the
the concept of law by its theoretical sociological fru
miss the point that, unlike concepts like 'mass' or
concept used by people to understand themselves. We
any fruitful concepts. It is a major task of legal t
understanding of society by helping us to underst
stand themselves.55

It is true that if legal theory is to be succ

certain extent, analyze familiar concepts s
contract, and sanction, in ways that someh
or popular understanding. However, there
tions which we must remember to add here
and legal theorists are not strictly bound
popular understandings of concepts whic
must attempt to clarify or revise these under
prevalent confusion or obscurity. Of cours
this, but it does leave us in need of explana
people that they misunderstand their own
them to 'understand how [they] understan

54 See Hart (1994, pp. 207-209).

55 Raz, Ethics in the Public Domain, rev. edn. (Ox
1995), p. 237.

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 532 MICHAEL GIUDICE

ond, although philosophers and l

perhaps by revealing incoherenc
understandings, they are also fre
notions, or categories which pos
(for example, 'rule of recognition
er', 'open texture', etc.) It follows
theorists are free to construct ne
egories, sociological fruitfulnes
consideration. Third, sociological
that concepts are altered to prod
sults, that is, by being more inclu
nomena. Rather, sociological fr
conceptual theories pay attention
narrow list of favourite concep
Hart's contributions to analytic j
observes that

When Herbert Hart revived the study of jurisprudence in the 1950's, he

shifted the emphasis back from particular to general jurisprudence; he
radically changed the methods of conceptual analysis, but he did not sig-
nificantly alter the agenda: the list of concepts that he treated as central to
general descriptive jurisprudence was not greatly different from the atten-
uated lists of Austin and Bentham. He did not, for example, apply his
methods to important sociological concepts such as dispute, process, sys-
tem, institution, function, and group. This was particularly unfortunate
given that historical jurisprudence had faded away and the sociology of
law, under American influence, had become both particular and ethno-
centric.56

Twining's observation is important because it suggests an easy

yet useful way in which conceptual analysis can be made
continuous with sociological, historical, and anthropological
explanation: rather than limiting analysis to concepts such as
duty, right, contract, and responsibility, it is important to
construct and elucidate concepts which reflect the interests and
needs of social scientific theories. In other words, although Raz
may be right to object that this or that particular concept be
evaluated in light of its sociological fruitfulness, the objection
loses its force when applied to conceptual analysis in general,

56 Twining (2000, pp. 53-54).

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 UNDERSTANDING DIVERSITY 533

which must extend to a truly broad and div

cepts.
To return to the objection that conceptual claims are best
understood as empirical generalizations, we can now add the
following. First, conceptual theorists often construct arguments
which show that common concepts or understandings are
flawed or confused. This is not a matter for empirical study, but
rather a task for logical and philosophical thought. Second,
conceptual theorists must construct arguments which suppose
that some concepts are more important to focus on than others.
It is not at all clear how this is an empirical matter, but rather
requires judgments of salience-ascription and theoretical
structure. Third, conceptual theorists do, and sometimes must,
construct new categories, concepts, or notions, designed for use
in revisiting the phenomenon under investigation. Construction
of new theoretical tools means that something is being added to
understanding of the phenomenon, which thus does not pre-
exist theoretical explanation and so is not capable of being
studied empirically.
The picture which emerges from these arguments can be
understood in terms of a continuum of social reality. Towards
one end is the collection or set of singular empirical facts of and
about law, such as a particular provision in a nation-state's
constitution, a particular reason why some fulfill their duty of
contract in Yap, or a particular economic consequence of the
rule of wills in Japan. At the other end of the continuum is the
collection or set of philosophically-constructed concepts or
conceptual claims of law and legal phenomena which are held
fixed. These might include claims such as 'a legal system con-
sists of a union of primary and secondary rules', 'to follow a
rule is to be guided by a reason for action', and 'there is no
necessary connection between law and morality'. There are two
important observations to make about this continuum. First,
both social scientific and conceptual theories co-exist on this
continuum. Towards the end of particular empirical facts, al-
though concepts will be needed to pick out what a rule, duty,
institution, or contract is, there will be an abundance of thick
accounts of particular variations of content, causes, and con-
sequences. Towards the end of philosophically-constructed

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534 MICHAEL GIUDICE

concepts and conceptual claims,

very thin but far-reaching; ho
conceptual claims must still ma
clarificatory explanation, sometim
– how people actually underst
philosophically-constructed con
still partly depend on empirical
important observation is that giv
reality of law or legal phenomena,
it is best understood as a concept
hypothesis. This will be done by
common understanding and use
consideration of possible instanc
ical. To demand a more precise fo
to ignore that such determinatio
legal theory. Once such a determ
claim is made, legal theory th
explaining, by social scientific m
the empirical hypothesis obtain
affected philosophically-constru
vised (or, for that matter, how
constructed in the first place).
Recognition that conceptual th
theories co-exist on a continuum
see how such theories can comp
conflict. They complement each
ories provide theoretical framew
which social scientific theories c
variations. They conflict with ea
social scientific observations can
conceptual claims, and vice versa,

57 Throughout the continuum would b

are true in more than one context, and
concepts or phenomena which do not ex
example, judicial review).

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 UNDERSTANDING DIVERSITY 535

are shown to proceed with inadequate or

backdrops.58 The important point is tha
conflict does not mean that either conceptu
methods are flawed because of a general co
but rather that we must take care in our
particular claims made or assumed within t
tual or social scientific theory. In other wo
social scientific theories complement each o
general approach; both are necessary persp
to understand a social phenomenon such as
as a possibility at the level of particular cl
either conceptual or social scientific theorie

A. Conceptual Analysis and Moral Relevance

As I noted before, even if one has done all t

as well as the sociological, anthropologic
investigation, and in addition recognizes th
all lie on a continuum, understanding of
nomena is still incomplete. For surely un
value(s) of law and its practice, which inclu
of how and why we ought to carry on (or not
for a broad understanding of law. Here I
under-appreciated feature of conceptual ana
legal theory can be more inclusive and inte
than competitive and disjointed. This fea
relevance can serve as a descriptive-explana
salience, and so can figure as part of a p
structed concept of law.

58 None of this is to forget that there is still head-o

social scientific theories or rival conceptual theori
relation between inclusive and exclusive legal positiv
tinuity, in which the two theories partially conflict an
each other. I should also note, to avoid possible mis
the continuity view there is commitment to the v
something for theories of law to be correct of, to exp
is important to seek continuity between different met
and legal phenomena, resulting theories are still su
about law and its place in society.

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536 MICHAEL GIUDICE

Consider the following example. A

claim that moral constructions of
in its creation and application ar
useful, must we also suppose, as
such moral construction is the o
legal theories? An initial response
between the role of actors or pa
particularly the officials, and th
theorists. Legal officials' decision
tion decisions of moral signific
where obligations and rewards f
and who has exaggerated the dut
potential to affect and alter peo
official faced with an issue combin
does not have the freedom or de
relevance that law and morality c
how they meet. However, althoug
engage in an exercise of hypotheti
necessary. As Wil Waluchow obs
tinguish first between different l

One crucial difference lies in the level of

in the two different enterprises: offerin
atory theories versus value-determined
ing certain elements of legal practice w
morally relevant in no way commits one
virtue of which the practice is actually ju
can see that the use of coercion is morall
and when coercion is ever justified mor
highlights this morally relevant featu
suggesting that coercion is (or is not) mo
moral relevance without making a mor

So according to Waluchow theo

explanatory theories of law may
detached perspective to legal phe
moral nature of legal practice ye

59 Waluchow (1994, pp. 22-23). Hart a

still be description, even when what i
(1994, p. 244).

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 UNDERSTANDING DIVERSITY 537

how such practice is morally justified or yiel

outcomes. Indeed, it could be the goal o
explanatory conceptual theory of law to ide
the occasions in which law invites or demands decisions of
moral significance.
But, Finnis and Dworkin might respond, so what if
descriptive-explanatory analysis of law is possible; what really
matters is that law is practised and lived, and because of this
moral constructions of legal-social choice and reality are re-
quired. Here it is useful to observe part of the value and utility of
descriptive-explanatory theories of law and legal phenomena.
Among the assumptions of any general theory of law is the belief
that clear thinking about the social choice and reality of law will
yield substantial insight into our nature as social beings. No
doubt, law's complex academic, professional, and popular inter-
est demonstrates that it can be a highly revealing social institution.
For this reason, reconstruction of law as a broad and illuminating
social phenomenon may permit an approach which attempts to
leave its object as it is, without an attempt to show officials (or
citizens) how they can do what they do better or better justify
existing practices. A further reason for offering general theories
of law which explain (but do not justify) law and its place in
society is that theorists seeking to offer general theories must be
sensitive to cultural differences across societies in which law
exists. If 'determination of certain generalities' leaves choice to
legal communities,60 or if anything approaching Jeremy Wal-
dron's conception of 'reasonable disagreement' or 'circum-
stances of politics' exists,61 arguments about moral
construction and justification of laws and legal practices must
be alert to variation in accepted standards.62 In light of the

60 St. Thomas Aquinas, Summa Theologica (New York: Benziger

Brothers, 1947) at I-II, q. 95, a. 2.
61 For Waldron's account of 'circumstances of politics' or the 'reasonable
disagreement' over application of general moral principles faced by any
modern legal system see his Law and Disagreement (Oxford: Oxford
University Press, 1999).
62 None of this is to say, however, that there may not be some moral
considerations which apply at some level of generality across all societies
with (or without) law.

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538 MICHAEL GIUDICE

increasing prevalence of countrie

`legal transplants', what migh
construction of law as it might b
rather a general explanatory and
its possibilities as a flexible socia
Jules Coleman presents another
moral relevance can be employ
explanation or conceptual theory
law to show that positivists can
morality in their descriptive-exp
nomena. He characterizes the sor
how the inferential roles of concep
reflects a general principle 'expla
context of tort law he argues that t
best explains the structural core of
cepts. The key concepts in tort law
responsibility, and compensation
shown to reflect the practice or em
corrective justice. Coleman descri
follows:

Typically, the plaintiff has the burden of

to support various allegations – among th
in a way the law ordinarily protects; that
he had toward the plaintiff; and that in
caused the plaintiff's harm in a way that
defendant as his doing. If the plaintiff
practical inference is thought to be warr
owes the plaintiff compensation for the

As Coleman quite rightly sugge

reason and organization of centr
using a principle of corrective ju
which connect the central con
understood as the practice of
harms done. What is most impo

63 For a detailed example of a legal tran

theory see again Tamanaha (2001, pp.
64 Coleman, The Practice of Principle
2001), p. xiii.

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 UNDERSTANDING DIVERSITY 539

Coleman utilizes the principle of correct

stantive moral principle, to describe the na
a morally uncommitted fashion. It is simpl
of tort law as it is, and the key concepts t
which make the principle of corrective jus
powerful tool of explanation in the expla
Coleman does observe however, that mor
questions may "grow out of the explana
reveals the abstract principles in greater s
creteness."65 Once we discover that tort
principle of corrective justice, we may the
want, in light of moral and political consid
to embody corrective justice or perhaps so
such as (general) no-fault liability or eco
Explanation by embodiment shows, I th
way of seeing how conceptual and mora
proaches are connected and continuous, rat
conflicting or simply different.
I believe the picture which emerges from the above
examples shows a second continuum revealed by conceptual
or descriptive-explanatory analysis. This continuum can be
described as a continuum of moral commitment. At one end
are observations of particular instances or features of la
which have little or no moral relevance at all, for examp
that judges wear black robes, or that stop signs are red rathe
than blue. At this end there is little or no commitment or
concern about how things under law ought to be. As we m
further towards the end of greater moral commitment on
continuum we find arguments and observations which ident
morally relevant features of law or its practice – for exam
that judicial decisions can be coercive or that tort law
embodies a principle of corrective justice – yet do not make
judgments about when or how such features are justified or
legitimate. The middle of the continuum is characterized by a
commitment to identify moral relevance, but in such a way as
to explain what it is about law or its practice such that it is
morally relevant (and the different ways in which this is so)

65 Ibid., p. 7.

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540 MICHAEL GIUDICE

without also engaging in full mo

end of the continuum are argum
offered by Finnis and Dworkin,
how to make or justify decisions
those decisions faced by judges i
islators in allocating benefits and b
powers, citizens in following prim
political communities in deciding
ments. At this end there is full commitment about how deci-
sions ought to be made, and what principles or reasons ought
to prevail. However, the crucial observation is that conceptual
analysis, as it did in the continuum of social reality, figures
along the entire continuum of moral commitment. It does so
because conceptual analysis can identify, collect, and explain
what it is about law such that it presents occasions for deci-
sions of no, little, or great moral significance. Moral and
political theories further complete our understanding by
determining, to the extent possible, how such decisions ought
to be made or justified. In this sense conceptual theories
complement and are complemented by moral and politica
theories.66 Yet as well as being complementary approaches, it
is also important to note that conceptual approaches and
moral or political approaches can conflict when it comes to
the proper interpretation of particular propositions. For
example, I observed earlier that Eekelaar mistakes the view
that judges only discover (or 'reconstitute') but never create
law for a conceptual claim. I suggested that such a view is
better understood as an ideal or political aim, which can be
met to greater or lesser degrees in practice.67 In general,
conflicts emerge when moral or political theories depart from
or assume faulty conceptual claims. However, and this is

66 I should acknowledge that it is doubtful whether Finnis and Dworkin

would accept this account, but maintain instead that once moral and
political theories of law are developed there is nothing left (or prior) to be
understood about law. However, it is not my purpose to accommodate all of
their claims. Rather, my aim is to locate a necessary yet relative place for
moral and political constructions in the broadest possible understanding of
law.
67 See also Hart (1994, pp. 272-276).

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 UNDERSTANDING DIVERSITY 541

crucial, conceptual corrections to moral o

should not to be viewed as a challenge to
theorizing about law. Conceptual approa
moral or political approaches at the level of
purpose, while in practice it is still neces
whether or not particular propositions are
conceptual claims or moral or political cons
though, determining the nature of particul
the task of legal theory.
It is now important to explain how the tw
connected. My central claim about the v
analysis is that it recognizes that its contr
standing law is only partial, but partial in a
it continuous with social scientific and
approaches. The most important way in wh
tinuums are connected is that at each po
tinuum where conceptual analysis resist
about either the moral merit or causes and content of some
feature, provision, or institutional arrangement of law, the
are two possibilities: either social-scientific theorists can
investigate the causes or patterns which explain why th
feature, provision, or institutional arrangement of law h
developed in the way that it has, or moral or political theo-
rists can evaluate which principles or values ought to guid
criticism, justification, or revision of the feature, provision,
institutional arrangement under consideration. However, al-
though either possibility can produce illuminating, stand
alone accounts of law and legal phenomena, clearly these are
not mutually exclusive possibilities. An informed moral
political evaluation requires accurate historical, sociologica
and economic explanation. In addition, some historical,
sociological, or economic considerations may reveal that som
moral or political constructions are bound to be unworkable
Nonetheless, what is important to observe is that each of the thre
approaches – conceptual, social-scientific, and morally an
politically evaluative – are continuous with one another by virtue
existing on intersecting continuums made possible by conceptual
analysis.

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542 MICHAEL GIUDICE

IV. TOWARDS THE BROADEST POSSIBLE UNDERSTANDING

OF LAW

To overcome the urge of imperialism and improve upo

insights of the difference view, it is necessary to renovat
theory's often supposed central question 'what is law
question has had the unfortunate effect of soliciting isola
or one-sided answers. A general theory of law whic
explanation of what law is as its central task is inevitab
to criticism from approaches or perspectives which are
cluded. For example, if a conceptual theory of law cla
explain what law is, what is left for other approaches?
promising question therefore is 'how can we achie
broadest possible understanding of law?'. The reason f
renovated question is simple: one who can state not ju
features law has, but also what causes explain why law
and persists (or not), and what reasons or consideration
as justification or grounds for legitimate criticism of its
has a broader understanding of law. For example, consi
concept of emigration. To know that emigration is the
of departing or leaving one's country to live somewhe
does answer the question of what emigration is. Howeve
only a partial understanding. A fuller understandin
include knowledge of historical, religious, and economi
– both general and exceptional ones – of why emi
happens. Yet conceptual and social scientific explanatio
gether still only provide a partial understanding. A co
understanding would also provide arguments about ho
gration should be regulated or criticized, or perhaps d
aged (or encouraged). It is indeed difficult to make sens
claim that one part of the fullest explanation or under
is most important, because this simply misses the fact th
is required or necessary for the broadest possible understa
of a social phenomenon. Without an initial concept
gration in place, discussion about either causes or eval
would fail to settle on a distinct subject; without an exp
of causes and effects of a social phenomenon evaluation
be uninformed and of limited use; and without evaluat
would not know whether or how to carry on with a p

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 UNDERSTANDING DIVERSITY 543

Although law is a much more complex p

emigration, I believe this account of necessa
applies. So, against imperialism the task fo
include necessary or important theoretical con
than argue for the most important theoret
will command exclusive attention. As a rec
the difference view we ought to think not of
or theoretical purposes, but rather partial or
or theoretical purposes. I have attempted
promise of these suggestions lies in an accou
legal theory, which departs from a renewed
the role and nature of conceptual analysis.
relatively abstract and fixed morally uncom
law and legal phenomena, conceptual analys
limits and partial contribution to the broad
standing of law, yet at the same time provide
backdrops in which social scientific invest
and political evaluations can proceed. As
continuity between conceptual approache
approaches, and moral and political appr
understood in terms of both complemen
conflicting relations. This is the advance ov
difference views. The three general appr
mentary at the level of theoretical aim o
conflict at the level of particular propos
theories of each kind. Measured against im
ference, continuity represents a worthwh
history of legal theory, which Hart once acut
`oscillation between extremes' .68

ACKNOWLEGEMENTS

I owe thanks to Nathan Brett, Keith Culver, Julie

Kent Macaskill, and Wil Waluchow for helpful comm
discussion on earlier drafts of this paper.

68 Ibid., p. 8.

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 544 MICHAEL GIUDICE

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Mc Master University
Hamilton, Ontario
Canada

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