I here contrast Hart’s ruminations on the fact-value distinction
and on the concomitant participant/observer-internal/external-point-of-view
divides (which are central to the concern of legal positivism with objectivity)
with Max Weber’s take on the notion of objectivity in social sciences. Hart was
reluctant to admit any influence of the German sociologist in his elaboration of
these categories, but, things are more complex than what largely bibliographical
remarks made by some commentators suggest (section 2). After positioning
this problem in the map of the secondary literature, I shall take my cue from
Brian Leiter’s critique of Finnis’ claim that the knowledge of legal phenomena
requires the use of practical reason, and that this take was first advanced by
Weber. Leiter’s critique is important, but there are Weberian insights which
could be of more value for positivists than what Leiter’s discussion allow
(section 3).
The suggested explanation to which my title alludes is the following: Hart’s
reluctance to admit Weber as a relevant influence, is (or could be) explained
due to an important difference in the ways in which both authors sought to
maintain the distinctiveness of their disciplines, and on how they understood
the nature or features of participants and their role in examining the object
under scrutiny. Although Weber’s social scientist participates in the selection
and conceptual framing of the scientific object according to her values and/
or culture, she takes a larger distance with regard to it than some prominent
Hartian participants, i.e., officials, do in the determination of what counts or
not as law or legal. In a nutshell, although both authors would agree that no
knowledge is ‘presuppositionless’, Weberian social scientists do not ‘bring
about’ their object in the same way that Hartian officials identify and create
law (section 4).
This leads to a conclusion that is dependent upon an exegetical reading of
The Concept of Law: Hart’s hypothetical acceptance of a Weberian influence
would have been to an important extent incompatible with his methodological
commitment to descriptivism (section 5).
