The reader who slogs through the 52 pages of Dan Priel’s latest critique of legal philosophy will get a good survey of some of the (fairly casual) remarks its practitioners have made about the ‘methodology’ of jurisprudence. Spoiler alert: but they won’t learn anything about how the subject might be done.
Once again, Priel tells everyone else their subject is empty or question-begging. He seems to flirt with the idea that there is a sociological jurisprudence that is not only a sociology of law, but a sociology of the nature of law (to the extent that law has a nature). In any event, we are all to stop ‘conceptual analysis’. What we are to start is not clear, though it seems to have something to do with measuring and counting–but without any preliminary worries about what counts as what.
The best defense of this proposal would simply produce the goods. We should be given access to Priel’s measures, data, models, and calculations that explain what law is. We can then check the validity of his measures, replicate his analyses, verify his calculations, and so on. (It has been a long time since I calculated a chi-square, but give me an afternoon and I’m sure I can get back up to speed.)
But while scolding analytical jurisprudence for not following the lead of the ‘many philosophers’ who find illumination in things like cognitive science and psychology, Priel coyly keeps whatever findings he has to himself. Or is his work–and its demand for empirical evidence–a failure by its own standards?
Perhaps not. When we arrive, finally, at p 52 we discover that it has all been an introduction to a prolegomenon to a preliminary to a research programme. Its only positive offering is that we should stop reading HLA Hart’s book The Concept of Law
‘A good first step would be to stop the unprofessional practice of reading with veneration, and perhaps at all, the book most responsible for the misguided conceptualist orientation that dominates contemporary jurisprudence.’
I admit to having hoped for more than a ‘first step’ in fifty pages. In any case, Priel’s step has been taken many times over.
Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all (or of having understood it if they have). The first step has been taken. So what’s holding up progress? It isn’t as if there is a licensing board in Oxford’s High Street, or in New York’s Washington Square, that must approve all research in legal sociology. Just do it!
There is a good piece of sociology of knowledge waiting to be written about why some academic lawyers feel so strongly that the only thing stopping them from doing what needs to be done is that other people are doing something else. I’m not sure what explains this, though I do have some conjectures.