Legal Idealism and the Autonomy of Law

Since Herbert Hart’s “fresh start” encouraged us to interpret legal and political
phenomena from an “internal point of view,” and Lon Fuller pointed out
the severe constraints upon a conceptually viable construction of this view,
jurisprudence has had little choice but to become, methodologically speaking,
genuinely and critically sociological. By this, we mean that in breaking
with the common-sensical half-truths which produced the imperative or
command theory of law, the conceptual problem of modelling the practical
rationale of the legal enterprise for the purposes of a general description of
the phenomenon as subject matter, has become central and acute. In the past
20 years or so, the sociological awareness of the need to transcend the flux of
empirical subjectivity, as well as important recent reinterpretations of the
tradition of Natural Law, does seem to put jurisprudence within striking
distance of achieving a mature status of integration with the methodology
of the social sciences; not merely as some adjunct to, or opportunity for,
empirically oriented “social studies,” but, as the source of a genuine epistemological
synthesis in the approach to the problem of conceptualising the
very subject matter of social science, namely, social action at the institutional
level. In terms of concept formation this has gone some way towards the
rehabilitation of the idea of “essential” or “focal” viewpoints in contrast to
the enthusiasm for the contingencies and relativity of historical, linguistic and
cultural conventionalisms.