Inspired by @scottjshapiro 's in many ways excellent podcasts, a short thread on why "General Jurisprudence", taken to mean the answer to the question "What is Law?", is completely moribund, and best avoided as a topic to write upon.

/1

In 1961, HLA Hart published The Concept of Law, intended as a student primer. There he set out a perfectly satisfactory account of the positive law, why it is a matter of fact, and there and subsequently explained why it is best differentiated from justice.

/2

Since then hardly any important refinements have been made. So it is a mistake to think that Hart was claiming that law has no connection with morality. Of course it does, it isn't like fish or trees in that respect.

/3

The most famous critic of Hart was, of course, Ronald Dworkin. His work, from the late 60s, right through to the early 2010s, gave the impression that there was a great debate to be had as to the correctness of legal positivism.

/4

But Dworkin's early work at least was based upon an obvious mistake. He pointed to the fact that judges when deciding cases didn't just use the fact of rules posited in the past, but also employed reasons of justice, sometimes using the latter to overturn the former.

/5

As overly robustly explained by @BrianLeiter here, that confuses the question "What is Law?" with the question "How should a judge decide a case?"

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=598265

Dworkin's was a theory of adjudication, not law.

/6

Dworkin's later work became ever more implausible, applying (as it had to) the single right answer theory not just to law but also to moral questions, despite the incommensurable reasons in play.

/7

Dworkin thereby missing one of the central points of law which is to posit rules where there is no right answer.

Although he remains in fashion in certain lw schools, more in the US than the UK, in retrospect, his was a long, exciting and fascinating journey to nowhere.

/8

As an aside, "inclusive legal positvism", is just the bastard offspring of Dworkin, trying to account for why judges use reasons of justice in coming to decisions.

Well, yes. But what has that got to do with what law is?

/9

Raz in 1979 in The Authority of Law satisfactorily explained some of the quetions left open by Hart, and hasn't really returned to the topic of "What is Law?" since.

Because it is over. We answered it.

/10

Now that doesn't mean that there are not other big and exciting topics concerning the question of justice to tackle. Is there a close connection between what can justfy law and morality? Is law about ensuring we comply with good moral reasons for action?

Or

/11

Is what can justify law much more constrained than that (as Kant maintained).

But these questions of justice, which are primarily what natural lawyers were concerned with, is nothing to do with "What is Law?"

/12

The great legal theorist John Gardner didn't spend his life tackling this question (save to defend legal positivism against mistaken interpretations) but rather looked at specific topics within law (criminal law and tort law mainly).

/13

That was, I think, the right thing to do.

We should try now to return to the the questions that Salmond was interested in, before Hart and Dworkin came along.

/end