9 LEG 1 (2003)

handle is hein.journals/legthory9 and id is 1 raw text is: 







Legal Theory, 9 (2003), 1-41. Printed in the United States of America
Published by Cambridge University Press 0361-6843/03 $12.00 +00



LAW


Jules  L. Coleman* and Ori Simchent
Yale   Law   School   and  Department of Philosophy,
Yale  University

t Department of Philosophy, University of British Columbia




                             1. THE PROBLEM

Prior to the publication ofHart's The Concept ofLaw, itwas not uncommon for
legal philosophers to identify jurisprudence with the quest for a definition
of law.1'2 Hart explicitly resisted this characterization of the ambition of
jurisprudence; the subject matter ofjurisprudence is law, not law. Notwith-
standing  Hart's assertions to the contrary, in Law's Empire Ronald Dworkin
argues that Hart's own legal positivism as well as other familiarjurispruden-
tial theories (like natural law) are semantic theories: that is, accounts of the
meaning   of law. Dworkin further identifies semantic theories with criteri-
alism, according to which the meaning  of a term is given by shared criteria
for applying it. The meaning  of the expression law on this view is given
by a rule or set of criteria specifying the conditions that must be satisfied
in order properly to employ  that expression, and the project of a semantic
jurisprudence  is to identify that rule.
   Hart's resistance to definitional projects injurisprudence and in legal phi-
losophy  more generally is both so familiar and so persuasive that Dworkin's
attribution of a semantic project to positivism has largely fallen on deaf ears.
Indeed, few, even among  those who  are otherwise sympathetic to Dworkin's
interpretivism or to his more narrowly drawn  criticisms of positivism, have
been  persuaded  by his portrayal of positivism as a semantic theory. In fact,
however,  Dworkin  nowhere  claims that positivism seeks to provide a defini-
tion of law. His claim is that positivism is most accurately (if not, in the end,
most  charitably) construed as a theory of the meaning of law. The meaning


  1. The subject of this paper is law as itpertains to systems of governance of human conduct.
Therefore we are not offering an analysis of law as it pertains to regularities in nature and
thus we do not explore the semantic or metasemantic relations between the two.
  2. See, for example, Herman Kantorowicz, THE DEFINITION OF LAW (Cambridge University
Press, 1958). In a similar vein, see Lewis Zerby's suggestion that the most famous definition of
law [sic]... is that Inade by Justice Holmes when he said: 'The prophecies of what courts will do
in fact, and nothing more pretentious, are what I mean by law. ' Some Remarks on the Philosophy
ofLaw, 46J. PHIL. 773-779 (1949).

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