in this jurisdiction? ā“ is amenable to a descriptive report. Dworkin ļ¬‚atly denies
this. In fact, for Dworkin, it is never possible to merely report the state of law
on any but the simplest of legal questions because the concept of law is inļ¬nitely
Dworkinā™s interpretive account of law is grounded in the idea that to understand
the concept of law one has to identify the point or purpose of law. Because the point
or purpose of law is inherently controversial, no account of the law can be (purely)
Recent and Future Concepts of Law 227
descriptive. For any such account will always depend upon a controversial thesis
about the point of law, which thesis will drive the selection of some features of
the practice and not others. Hence, all accounts of law are necessarily constructive
in that their focus on some features of the practice and not others is a matter of
selection driven by a prior choice of normative framework (i.e., an account of the
point of law).
Dworkinā™s (1986: 190) argument about the need to discern the point of law is
driven by his more basic assertion that any conception of law āmust explain how
what it takes to be law provides a general justiļ¬cation for the exercise of coercive
power by the state.ā Hart (1994: 239ā“40) has never agreed with this characterization
of jurisprudence. Some read Dworkin as asking a different question than Hart and
thus agree with Hart that Dworkin and he are engaged in fundamentally different
projects (Leiter 2003). This is an uncharitable if not incorrect reading of Dworkin.
It is uncharitable in that it fails to take Dworkinā™s criticism seriously. Dworkin is
arguing that Hart assumes away a problem Dworkin maintains is fundamental to
any account of law. In other words, Dworkin argues that Hart misunderstands a
central feature of his own (i.e., Hartā™s) account of law. This is not to suggest that
Dworkin is correct in his critique of Hart. Rather, it is to suggest that Dworkin has
a point, albeit a controversial one.
If we take Dworkin seriously, the question is whether he is correct in his claims for
the inherently controversial nature of the concept of law. To answer this question,
Dworkin needs to advance arguments about the nature of concepts or, at least,
some account of why the concept of law is special. Alas, he supplies no arguments to
sustain his controversial assertion. The burden of proof clearly lies with Dworkin.
When Hart explicates the rule of recognition, he is providing an account of how
participants in the practice of law understand judgments of validity. In providing
his account of this practice, the measure of Hartā™s work is accuracy: does Hartā™s
description account for what participants in the practice take to be the central
features of validity conditions for law? Dworkinā™s critique has to be read to claim
that even if Hartā™s account is an accurate sociological account of what participants
in the practice take themselves to be doing, that account is not necessarily correct
from the point of view of law as it is properly understood.
It seems that, at bottom, Dworkinā™s debate with Hart is one about the meaning
of concepts. Hart says that the meaning of law (its extension) is ļ¬xed by what
participants in the practice take the concept to mean. Dworkin denies that the
way participants understand themselves exhausts the meaning of the concepts
they employ. Dworkin (and, interestingly, Raz) maintain that law is a concept
the content of which is (in part) dictated by something other than conventional
understanding. How do we understand this?
TWO APPROACHES TO PRACTICE
Hart and Dworkin disagree about the role of practice in theory. For Dworkin,
practice is material that is taken up by a theory. It is fuel or content. For Hart,
practice is the product of history and cannot be theorized. The rule of recognition
cannot be theoretically justiļ¬ed because it is a product of history and circumstance.
228 Dennis Patterson
Dworkin cannot abide this quietism. In terms that are all too familiar, it can be
said that Dworkin (2006: 170) privileges theory over practice. For Hart, it is always
practice that is primary.
Dworkin clearly believes that theory is the preferred route to a better understand-
ing of the practice of law. As others have argued, this claim is wildly implausible
(Leiter 2007). Dworkin is ultimately not interested in an account of law as we
ļ¬nd it (in practice). Rather, his project is devoted to providing us with an ideal
conception of law, the merits of which are not discernible by the degree to which
the theorizing illuminates the practice to which it is purportedly directed.
By contrast, Hart explores the social dimensions of legal practice, rooting his
positivism in the critical, reļ¬‚ective attitudes of institutional participants in law.
As mentioned earlier, the principal elements of Hartā™s account are the concepts of
primary and secondary rules, the internal point of view, and, most importantly,
the rule of recognition. Through the use of the rule of recognition, lawyers and
nonlawyers alike are able to identify legal norms and, in that way, decide what the
law is on any given question.
There can be little doubt that Hart provides the contours of a practice-theory
approach to law. By āpractice theory,ā I mean an account of law that answers the
question, What is the law in this jurisdiction with respect to x? by looking at how
participants in the practice decide the state of the law. Hart gave us only the barest
essentials in outlining the rule of recognition. To be sure, he made it clear that rule
of recognition is a practice, one that lies at the heart of Hartā™s account of law as
a practice of special social rules. But what do we mean when we say that law is a
practice, albeit one of a special sort? For an answer to that question, let us turn to
the literature on practices.
When theorizing a human activity, one of the most fundamental questions is
locating the vantage point from which to start the endeavor. Consider the philos-
ophy of mind. Cognitive naturalists of a variety of orientations (Fodor, Chomsky,
Searle, the Churchlands, and Dennett) argue that problems of mind and con-
sciousness are best explained by investigation of the inner theater of mind or
brain. For them, philosophy of mind is a matter of theorizing the relationship
between mental activity and our efforts to represent reality outside the mind. By
contrast, nonnaturalists like Sellars, Davidson, McDowell, and Brandom follow
Wittgenstein in seeing mind not as a thing or a place but as an array of social skills
and activities. For the nonnaturalists, practices are the places where the mind is on
display. An account of the skills necessary to participate in practices are the non-
naturalistsā™ account of mind. Importantly, the nonnaturalists can theorize mind
as found in practices without resorting to the inner theater that preoccupies the
As a point of philosophical focus, practice theory ranges across a wide vari-
ety of social activities and philosophical specialties. From medicine to money
and especially philosophy of science, practice theory has garnered sustained
attention from philosophers, anthropologists, and sociologists. As Joseph Rouse
Recent and Future Concepts of Law 229
(2007a) explains in his recent overview of practice theory, the role of language
in social practices has been a particular focus of attention for philosophers. One
prominent example that has made its way into the legal literature (Canale and
Tuzet 2007) is Robert Brandomā™s (1994) inferentialist account of the norma-
tivity of practices. Like other nonnaturalists, Brandom is keen to provide an
account of normativity in practices that locates the explanatory power of the
account in linguistic utterances or exchanges between participants in discursive
Brandomā™s discussion of regulism provides an entree into the problem of nor-
mativity and its role in practices. To be clear, what we are after is an account of
norms that illuminates the connection between norms and reasons. Along the
way, I will have things to say about naturalism and intentionality, just to name two
related topics. But the central focus is the role of normativity in practices.
When is a performance correct? In virtue of what is it true to say, āShe did it
rightā? Brandom (1994: 18ā“19) begins his answer by reminding us that for Kant,
āwhat makes a performance correct or not is its relation to some explicit rule.ā
But what is the Kantian conception of performance in accordance with an explicit
rule? Brandom (1994: 20) answers: āto assess correctness is always to make at least
implicit reference to a rule or principle that determines what is correct by explicitly
saying so.ā The rule and nothing but the rule determines what counts as correct
in following the rule. The norm sets out its own standards of correctness. There is
nothing between the rule and what counts as complying with it.
In a move that is now common, Brandom uses Wittgensteinā™s regress argument
to show the shortcomings of the Kantian regulist account of norms. According to
Brandom (1994: 23), Wittgensteinā™s regress argument is his āmaster argument for
the appropriateness of the pragmatist rather than the regulist/intellectualist, order
of explanation.ā On a pragmatist conception of norms, a conception of correctness
of performance is implicit in practice. Practice is the ground of normativity for
practice is the means by which the regress argument is answered and the problems
of regulism avoided (Patterson 1996: 151ā“82).
But what account of practice is appropriate? Rouse has recently added depth
to Brandomā™s arguments in ways that may prove useful to legal philosophers.
As Brandom argues, ābeing in a practiceā is all about mutual accountability.
Maintenance of a practice is achieved through iteration of performances that
require mutual accountability on the part of participants in the practice. But
how is this achieved? Rouse (2007b: 48) suggests this as a test: āa performance
belongs to a practice if it is appropriate to hold it accountable as a correct or
incorrect performance of that practice.ā Fleshing out this general conception of
accountability is the ļ¬rst step to developing a convincing account of the normativity
We demarcate practices from one another by the āways in which constitutive
performances bear on one anotherā (Rouse 2007b: 49). So, performances respond
to one another through correction, praise, explication, and drawing inferences.
Brandomā™s own account of normativity as ādeontic scorekeepingā is but one exam-
ple of how this notion of a practice as an interactive ļ¬eld of performance can be
230 Dennis Patterson
NORMATIVITY AND THE PRACTICE OF LAW
The goal of any practice account of law has to be making sense of the practice
as an ongoing, iterative, and most important, common activity. In providing an
account of normativity, it is crucial that any account of law as a practice illuminates
precisely how participants can be said to perform in a common world. What is
it that makes the world common? And when participants disagree about their
purportedly common world, how are such disagreements framed and adjudicated?
In what remains the deļ¬nitive critique of Dworkinian interpretivism, Gerald
Postema (1987) provided the ļ¬rst detailed outline of a practice theory of law. The
best place to approach practice theory is through explication of what Postema calls
āthe common world.ā What joins lawyers together in a common practice? Is it their
beliefs, propositional attitudes, intentionality, forms of argument, or consensus in
judgment? One or all of these candidates is likely efļ¬cacious as a ground of any
analysis of law as a practice.
Second, there is the question of consensus. Do participants share a practice if
they share only questions about the nature of the practice? Dworkin famously
argues that mere questions alone (e.g., about the grounds of law) sufļ¬ce to bring
performers together in the same practice. Postema makes a strong case for the
proposition that disagreement is possible only against the background of deep
shared commitments. His argument is persuasive but it is just a start.
An effective account of law as a practice will answer the interpretivist ques-
tion about the grounds of law. As Postema argues convincingly, the unity and
coherence of law do not depend on a structure of rules or a regime of princi-
ples. What, then, does this unity consist in? The answer to this question is for
Brandom, Robert. Making It Explicit: Reasoning, Representing, and Discursive Commitment.
Cambridge, MA: Harvard Univ. Press, 1994.
Canale, Damiano, and Giovanni Tuzet. āOn Legal Inferentialism: Toward a Pragmatics of
Semantic Content in Legal Interpretation.ā Ratio Juris 20.1 (2007): 32ā“44.
Dworkin, Ronald. Justice in Robes. Cambridge, MA: Belknap Press, 2006.
. Lawā™s Empire. Cambridge, MA: Belknap Press, 1986.
Hart, Herbert L. A. The Concept of Law, 2d ed. Oxford: Clarendon Press, 1994.
Lacey, Nicola. The Nightmare and the Noble Dream: A Life of H. L. A. Hart. Oxford: Oxford
Univ. Press, 2004.
Leiter, Brian. āBeyond the Hart/Dworkin Debate: The Methodology Problem in Jurispru-
dence.ā Am. J. Juris. 48.1 (2003): 17ā“51.
. āBook Review.ā J. Legal Ed. 56.4 (2007) (reviewing Dworkin 2006 and Scott Her-
shovitz, ed., Exploring Lawā™s Empire: The Jurisprudence of Ronald Dworkin, 2006): 675ā“81.
Patterson, Dennis. Law and Truth. New York: Oxford Univ. Press, 1996.
Perry, Stephen R. āHartā™s Methodological Positivism.ā In Hartā™s Postscript. Ed. Jules L.
Coleman. New York: Oxford Univ. Press, 2001, 311ā“54.
Postema, Gerald. āā˜Protestantā™ Interpretation and Social Practice.ā Law & Phil. 6.3 (1987):
Recent and Future Concepts of Law 231
Raz, Joseph. āCan There Be a Theory of Law?ā In The Blackwell Guide to the Philosophy of
Law and Legal Theory. Eds. Martin Golding and William Edmundson. Oxford: Blackwell
Publishing, 2005, 324ā“42.
. Ethics in the Public Domain. Oxford: Clarendon Univ. Press, 1994.
. āThe Problem of Authority: Revisiting the Service Conception.ā Minn. L. Rev. 90.4
Rouse, Joseph. āPractice Theory.ā In Philosophy of Anthropology and Sociology. Eds. Stephen
P. Turner and Mark W. Risjord. Amsterdam: North-Holland Elsevier, 2007a: 639ā“82.
. āSocial Practices and Normativity.ā Phil. Soc. Sciences 37.1 (2007): 46ā“56.
Searle, John R. The Construction of Social Reality. New York: Free Press, 1995.
27 The Tasks of a Philosophy of Law
robert p. burns
Out of the conjunction of activities and men around the law-jobs there arise the
crafts of law and so the craftsmen. Advocacy, counseling, judging, lawmaking,
administering ā“ these are major groupings of the law-crafts. . . . At the present
juncture, the fresh study of these crafts and of the manner of their best doing is
one of the major needs of jurisprudence.
(Llewellyn 1941: 188)
A principal task of a philosophy of law at this time is to provide a constructive
account of legal practices that reveals how and when they achieve valid results. An
adequate philosophy of law will thus understand the law as much more than legal
doctrine, the law of rules. Such a philosophy will bring a radical empiricism to bear
on the actual practices in which lawyers engage while interviewing, counseling,
engaging in pretrial practices, mediating, trying cases, writing briefs, and arguing
appeals, and in which judges engage in deciding their cases and justifying their
decisions. It will rely on thick description and linguistic phenomenology. It will
seek to identify how the best of those practices persuades their audiences of what
true law in particular cases really is.
Thus the line between philosophy and legal anthropology will blur. This is some-
thing that Clifford Geertz (2000) has already seen occurring in the various forms of
phenomenology and pragmatism that have characterized twentieth-century phi-
losophy. In order both to interpret legal practices and to justify them, philosophy
will embrace Geertzā™s (1979: 239) notion that we must engage in āa continuous
dialectical tacking between the most local of local detail and the most global of
global structures in such a way to bring both into view simultaneously.ā To iden-
tify the ideals situated within legal practices that can support valid results, we
must proceed hermeneutically. Just as lawyersā™ and judgesā™ practices are persuasive
because of the overall plausibility of the accounts they provide, philosophers will
seek to convince others of the account they give at the āmetalevelā by the āoverall
plausibility of the interpretation they giveā (Taylor 1975: 218). Those accounts will
be interpretations of practices that are themselves interpretations of events. We
will succeed āby the mutual support of many considerations, over everything ļ¬t-
ting together into one coherent viewā (Rawls 1971: 579). Philosophy will retain an
aspiration toward normativity that anthropology generally doesnā™t and that Rawlsā™
| 232 |
The Tasks of a Philosophy of Law 233
notion of reļ¬‚ective equilibrium attempted to express. Philosophy will thus have
an idealizing element and will portray legal practices in their best light, but will
look more to the situated ideals embedded in legal practices than to higher-order
principles identiļ¬ed by the theorist for the sources of that light.
This means that the line between a philosophy of law and rhetorical studies will
also blur. Philosophy will continue to seek the helpful clarity which the analytic
tradition offers but will appreciate more deeply that conceptual analysis resolves
rather few issues in the philosophy of law. Achieving conceptual clarity will not
resolve the ultimate question of which account of law is the most comprehensive,
accurate, and fruitful. Philosophy will also move further from an attempt to achieve
foundational truths or ļ¬rst principles from which substantive deductions can occur
and that serve as criteria for what law is or what justice is. Philosophy will generally
accept Rawlsā™s implicit abandonment of that enterprise in his later work for the
explication of the ideals that are already situated in our considered judgments of
Those ideals will be implicit in the persuasive practices of lawyers and judges.
They are likely to be plural just as the languages of trials are plural (Burns 1999).
Philosophical methods or styles that are themselves many voiced are likely to be
fairest to a justice which is itself conļ¬‚ict (Hampshire 2000); that is, the deter-
mination through rhetorical practices of tensions that are actually constitutive
of our social world. An adequate philosophy of law will hear the voices of thick
description of legal practices, of legal doctrine, of quantitative social science, and
of normative social theory. Philosophy will not homogenize those voices into a
single-voiced theory but can arrange them and interpret them in a way that yields
insight as it fulļ¬lls its traditional task to āthink the concreteā or āthink what we
do.ā The insight into legal practices that arises from this effort will thus not parallel
scientiļ¬c knowledge but will be a form of reļ¬‚ective judgment, where āa partic-
ular issue is forced into the open that it may show itself from all sides, in every
possible perspective, until it is ļ¬‚ooded and made transparent by the full light of
human comprehensionā (Arendt 1968: 242). The philosopher who understands
legal practices will not create a scientiļ¬c theory, but will āļ¬nd a footingā or ļ¬nd
his or her āway aroundā (Dreyfus 1980: 12).
Part of the task of a philosophy of law will be to map the ālanguage regionsā
within the legal world (Pitkin 1972: 140ā“9) and interpret the signiļ¬cance of the
different uses of language from region to region. A related task will be to identify
the appropriate modes of social ordering with each of those regions, to show the
links between linguistic practices, modes of social ordering, and different forms
of life within society. This effort will also have a dialectical structure, tacking
between what we actually do and say in various legal contexts and the social theory
that shows those practices in their best light. Philosophers will be more attentive
than other scholars to the question of, Where do we stand? when we make such
normative claims. On the epistemological side, there will be no Archimedean
point, but one account may still be better than another. On the institutional side,
ā[o]ur task is less to create constantly new forms of life than to creatively renew
actual forms by taking advantage of their internal multiplicity and tensions and
their frictions with one anotherā (Kolb 1986: 259). We will thus be interested in
234 Robert P. Burns
identifying the appropriate place for politics, economics, morality, and fraternity
in law and of law in politics, economics, morality, and fraternity. We will also
continue to explore what we may call the social meaning of rule-based and equitable
decision making in particular cases, how they intersect in legal practices, what
social function each serves, and the social spheres within which each is appropriate
Philosophy will have two tasks, one interpretive and the other critical. (Aristotleā™s
Nicomachean Ethics has sometimes been called a hermeneutics of Athenian life.)
Philosophers will provide an account of how multivoiced rhetorical methods
can actually converge on a just resolution of a legally situated human event. A
philosophy of legal rhetoric will describe, justify, and articulate any limits on
rhetorical methods in law. Part of that work will be to show the way in which the
constraints on advocacy can function to overcome sophistry and elevate judgment.
This will require qualifying the propositional model of truth that is dominant
in legal academia and articulating notions of truth as disclosure. Philosophy will
articulate how legal practices may disclose practical truths. Those truths will not
be fully representational but will consist of a concrete grasp of facts, norms, and
possibilities for action. Philosophy will have to be exquisitely sensitive to the real
ideals embedded in current practices, to develop the kind of sensibility usually
possessed by a novelist or the best of historians and to show how those practices
can be criticized. There will be a number of different strategies here. The question
of their relative explanatory power and fruitfulness cannot be determined a priori,
only by working out their implications and evaluating their results.
But Geertz spoke not only of the local of local detail but also of the most
global of global structures. The philosophy of law will be open to social and
political theorizing well beyond the rather scholastic limitations jurisprudence has
imposed on itself out of fear of transgressing the disciplinary bounds between itself
and political theory or social theory. In particular, legal philosophy will set for itself
the task of articulating an ultimately normative theory of social spheres. This will
allow us to determine what is appropriately a legal issue and how the moral and
political realms bear of those issues. Such a general social theory can be only a
likely story. Such a theoretical account will be placed in dialectical tension with
an anthropological account of legal practices described earlier. Purely conceptual
disputes about what law is will recede as philosophers come to understand that the
different issues surrounding that question cannot be solved by conceptual analysis
alone. Likewise, lawā™s nature is not reducible to the ideas that legal actors entertain
about law. āThe meanings and norms implicit in these practices are not just in the
minds of the actors but are out there in the practices themselves, practices which
cannot be conceived as a set of individual actions, but are essentially modes of
social relation, of mutual actionā (Taylor 1971: 27). What we should understand
by ālaw isā may be the result of a dialectic between thick description of actual
linguistic practices and a normative social theory. A major philosophical issue
will be whether the latter is necessary or helpful for the criticism of actual legal
practices, even if only a likely story.
Richard Bernstein (1976: xiv) wrote that any adequate social theory would have
to be simultaneously empirical, interpretive, and critical. The same will be true
The Tasks of a Philosophy of Law 235
for an adequate philosophy of law, which cannot but be an element in a broader
social theory. An adequate philosophy of law will be open to the humanistic or
interpretive styles of thought I have been describing. Jurisprudence can never be
fully naturalized because the object of its study has the same status as other forms of
human spontaneity, to use the Kantian term, and because the most adequate theory
for understanding them will have a normative edge. Legal practices are intelligent
practices that often serve real human goods. They may be understood in the way
a philosophy of science interprets science and literary criticism interprets literary
texts or dramatic performances. Humanistic studies of the nature of narrative
and of drama will contribute to our understanding of the legal enterprise. Both a
philosophy of science and good literary criticism serve to explicate ideals implicit
in practices. Neither the philosophy of science nor literary criticism aspires itself
to be a science. Nor should jurisprudence.
But an adequate philosophy of law will be open to and interested in the results
and methods of the social sciences. Part of what a philosophy of law will do is to
develop an adequate philosophy of the social sciences so that the results of those
sciences can be integrated into a normative perspective. Those results are quite
varied and are dependent for their signiļ¬cance on quite different principles and
methods from discipline to discipline. They are not self-interpreting. Sometimes
the results of the empirical social sciences may be relevant to traditional normative
questions. For example, liberal legal theory generally insists on clear preexistent
rules as guarantees of predictability and so of individual autonomy against the
intrusion of the state. But whether such rules actually do allow a citizen to predict
the likelihood of effective adverse state action is an empirical question to which
the methods of several social sciences may be relevant.
Further, an adequate philosophy of law will be dialectical in the manner
described previously and will seek to achieve something like reļ¬‚ective equilib-
rium between our deepest principles and our actual practices. The empirical social
sciences can contribute to this effort by offering insight into what our actual
practices really are. Part of the efforts of a philosophy of law will be to offer an
interpretation of the ways in which the results of the social sciences either conform
to or deviate from the internal self-understanding of legal practices to be found
in doctrine and theory. There is a place here for both a skeptical hermeneutic
of suspicion and a second naĀØvetĀ“ . The latter will be open to the ways in which
legal practices are necessary to realize human goods and so must be understood
not only as so many dependent variables to be explained. Once again, scientiļ¬c
practices may be explained sociologically or economically, but they may also be
understood as forms of intelligent and autonomous (to use Kantian language)
action. A philosophy of science may provide a rational reconstruction of scientiļ¬c
practices. The same is true for legal practices. They express situated ideals linked
to real goods that have a validity to be appreciated and criticized in the process of
A philosophy of law will not usually be normative in the straightforward way in
which classical utilitarianism or even Rawlsā™s early philosophy aspired to be nor-
mative. We should not be surprised that we cannot directly derive or deduce results
in individual cases. This has implications for what we might call the intellectual
236 Robert P. Burns
style of a good philosopher of law. The apparent ability of a theory to dictate
speciļ¬c results has had too much appeal to legal academics and typically comes
at much too high a price. We cannot think of the higher-order principles that