Abstract

Many legal theorists have complained that the difficulty of the question, "What is law?", arises largely because of uncertainty about what is being asked, and some theorists have attempted to identify a number of separate issues being raised through this question. It has also been argued that the apparent incompatibility of different theories about the nature of law is illusory since these theories, in fact, address different questions. This thesis is similar to these claims in that it also argues that different legal theories are often compatible. However, one cannot support this position simply by showing that different questions can be asked about the nature of law. Instead, it must be recognized that there are different approaches to legal theory that cannot be distinguished merely by enumerating the questions that each approach attempts to answer. ;Different legal theories examine the same phenomena but some of them do so from different points of view, or different perspectives. Sometimes advocates of different approaches can ask the same questions and give different answers, but these answers will nevertheless all be true because they are answers given from different perspectives. For instance, one might ask, "What does that table look like?" This is a single question but it can be given different true answers by observers from different locations relative to the table. Roughly the same sort of phenomenon has occurred in legal theory. Theorists have occupied different perspectives but have often failed to realize that they do so, and they have therefore offered compatible theses which are taken to be incompatible. ;It should be stressed that my thesis is not that all jurisprudential disputes are without substance; rather, it shows how these disputes must be construed for substantive disagreement to emerge. For instance, disputes between two theorists occupying the same perspective are nearly certain to be genuine, while apparent disputes between theorists from different perspectives must be examined carefully before it can be ascertained whether there is genuine disagreement and if there is, what that disagreement is over. ;Since, except within the context of spatial relations, the idea of a perspective is unclear, a criterion for identifying and individuating perspectives independently of legal theories is necessary if triviality is to be avoided. Perspectives should initially be distinguished by the motivational constitution of their occupants and by the epistemic limitations on occupants. While these two dimensions are sufficient for distinguishing perspectives, three further features of a legal perspective must be discussed before claiming that understanding it can shed light on legal theory: a model occupant , a discussion of theorists who have adopted it, and an explanation of why the occupation of it can lead to a fuller understanding of law. ;The thesis is developed through a discussion of five important legal theorists whose theories exemplify particular approaches to law. There are individual chapters on Oliver Wendell Holmes, Hans Kelsen, Lon Fuller, and Ronald Dworkin, while H. L. A. Hart's theory is examined in my discussion of both Fuller and Dworkin. The thesis shows that different but nonetheless compatible solutions to the problems of legal theory can be given, the compatibility of the solutions being explained by the fact that the theorists occupy different perspectives