ABSTRACT

Answer Plan The question concerns the general question of the role that a legal theorist’s viewpoint has on the understanding of the legal theorist’s theory of law. The answer identifies three general viewpoints that a legal theorist might take on the institution we call ‘law’: (1) the lawyers or participant’s perspective where the legal theorist seeks to explain law in terms of a lawyer’s understanding of law. Dworkin and Kelsen are the best known examples of this perspective;

(2) the institutional ‘engaged’ perspective is where the legal theorist goes beyond the lawyer’s perspective and examines law in its wider political and social perspective, but this perspective has a strong commitment to a particular type of legal system or an ideal form of law. Finnis, Galligan and MacCormick are all strong examples of this type of approach;

(3) the ‘detached’ institutional perspective where the legal theorist examines law in its social and political context – the ‘institutional setting of law’ – but has no express commitment to law or legal systems of any kind. This value-free descriptive jurisprudence is best exemplified by Professor Hart.