ABSTRACT
So far, we have seen, first, that meta-theory is the ubiquitous background of legal theory, second, that legal positivists can defend their presupposition of a single explanatory object, namely the concept of law, and third, that one need not engage in direct moral evaluation in order to provide a valuable description and explanation of juridical law.1 It may also be the case that a positivist legal theory offers the best prolegomena to a direct moral evaluation of law. In short, we have seen that it is possible to develop a minimalist legal theory whose methodological and other meta-theoretical commitments are explicit, and that this might be a good thing to do. In this and the following chapters, we shall secure those commitments. In this chapter, we shall consider Stephen Perry’s methodological critique of Hart in particular and of descriptive-explanatory legal theorists in general. Perry holds that the positivist conception of descriptive jurisprudence is incoherent, and thus not a suitable descriptive-explanatory theory of law, and his attack on descriptive jurisprudence occupies a prominent position in the Methodology Debate. A minimalist legal theory of the type I advocate is committed to eschewing a priori commitments to highly contestable moral and metaphysical theories. Perry, however, attacks that very approach, and argues that any sensible legal theory must advocate particular moral norms, and defend itself on the basis of those norms. Unlike Liam Murphy, whose second-best approach recurs to moral norms only when meta-theoretical-evaluative criteria are (supposedly) insufficient, Perry’s methodology is guided by morality from the outset.
