The first PTRG meeting of 2017 saw a discussion of Chiming Zhong’s ‘On the Legal Methodology of Rights Theory’. In this paper Chiming looks to move beyond what he sees as conventional, philosophical approaches to understanding rights, focusing instead on more practice-oriented models derived from legal theory. A particularly important example of the latter is found in H.L.A. Hart’s methodology of rights theory and the first half of Chiming’s paper is dedicated to clarifying Hart’s position with regards to rights, as well as legal theory more broadly, and defending both from various challenges.
The second half of the paper introduces two criticisms of this Hartian method from Ronald Dworkin. Chiming defends Hart from the first criticism, namely that the latter’s method leads to a conception of law which ‘misrepresents how law functions in the real world.’ However he concedes Dworkin’s claim that Hart’s model is underpinned by the flawed, ‘Archimedean’ assumption that it is possible to define rights, and other concepts, in a purely formal, external, and descriptive manner, without making any normative assumptions. Rather, Chiming concludes that any viable theory of rights ought to be aware of its necessarily normative character, and adopt an internal viewpoint when attempting to make sense of rights.
Our discussion addressed the relationship between theories of rights and theories of law. We also discussed the Archimedean character of Hart’s model, looking to clarify the different forms of external viewpoint that it could be premised on, as well as the more fundamental question of whether or not Hart actually adopted an external perspective at all. This tied in to a discussion about how the internal and external debate maps on to the division between objectivity and subjectivity. The place of this chapter within Chiming’s broader thesis was also discussed, particularly his aim to bring Hart and Dworkin into discussion with major strands in Chinese philosophy, most notably Confucianism.
Written by Andrew Drever
Chiming Zhong is a PhD student in Political Theory at the University of Edinburgh.