Social Sciences and Jurisprudence Through Weberian and Hartian Eyes: Suggesting an Explanation for a Puzzle

Abstract

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).