The Role of Hermeneutics in the Debate Between Natural Law Theory and Legal Positivism

Dissertation, The University of Nebraska - Lincoln (1989)
Abstract
An interpretation of the contemporary debate between natural law theory and legal positivism is presented which takes hermeneutics, i.e., the general theory of interpretation, to be its central organizing theme. Major portions of the thesis are devoted to analyzing the role which hermeneutics plays in the legal theories of H. L. A. Hart, Lon Fuller, and Ronald Dworkin. Hart's version of legal positivism is shown to be closely analogous to "objectivistic hermeneutics", a view developed in the work of Wilhelm Dilthey and Max Weber. Similarly, it is argued that the contemporary version of natural law theory which is instantiated in the works of Lon Fuller and Ronald Dworkin is analogous to Hans-Georg Gadamer's view, which he calls "philosophic hermeneutics." ;Unlike earlier versions of legal positivism, Hart's legal theory takes rules to be elemental. His analysis of rules includes a component, "the internal aspect of rules", which reflects: Hart's rejection of the reductionism which is characteristic of legal realism and Austin's version of legal positivism, and his belief that this component can be fully captured by an objective and value-free theoretical account. Hart's acceptance of objectivistic hermeneutics is consistent with legal positivism's commitment to the strict separation of law and morality because according to both views it is possible to: sharply separate facts from values in the human sciences, and provide an objective and value-free theoretical account of law. By contrast, those who accept philosophic hermeneutics and those who defend a contemporary version of natural law theory are skeptical of these two claims. Since the most prominent contemporary representatives of both natural law theory and legal positivism appeal to hermeneutics in one form or another, it follows that one cannot obtain an adequate conception of contemporary jurisprudence until one appreciates that the philosophical and methodological issues which distinguish different versions of hermeneutic theory have their counterparts within contemporary legal theory
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