A matter of perspective: comparative analysis of the methodological issues of the theories from Peter Winch and H.L.A. Hart

• Grant number: 16/12664-9
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): October 01, 2016
• Effective date (End): September 30, 2017
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Ronaldo Porto Macedo Junior
• Grantee: Davi Bulgarelli de Freitas Guimarães
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

H.L.A. Hart was a positivist author extremely relevant for the development of the contemporary philosophy of law. One of his most significant contributions was the introduction of the concept of the internal point of view, emphasizing the importance of considering the perspective from participants of the legal system for an effective and full description of this system. This methodological change allowed Hart to renovate the positivism, presenting an alternative thesis different from the ones that existed until then. Such a renewal through a conceptual analysis of law was so impressive that many authors characterize it as the "hermeneutic turn" of the legal philosophy. According to Hart, the idea of the internal point of view came from the book "The Idea of a Social Science", by Peter Winch. In this work, the author advocates a hermeneutical approach of the social sciences, in which the participant's ideas of a social practice are essential for the development of a theory that proposes to explain this practice. Thus, through this thesis, Winch criticizes the methodological principles of the sociological theories from several positivist authors, especially Max Weber. In this way, many aspects of the hartian internal point of view can be clarified through a comparative analysis of the works of Winch and Hart, as was done by Veronica Rodriguez-Blanco. In this analysis, the author argues that there are important differences between the notions of Hart and Winch on the internal point of view, given that Hart adopts a practical point of view and Winch uses the participant's point of view. The difference between them is that while Hart seeks to establish what individuals must do through normative reasons, Winch pretends to understand what individuals do based on explicative reasons. Thereby, Rodriguez-Blanco states that Hart's theory of law is not descriptive, but normative.But beyond Hart itself claim that his book can be seen as a descriptive sociological essay, many are the authors who interpret his legal theory as descriptive, approaching the internal point of view of Hart to the one presented by Winch, what justify the hartian hermeneutic approach. And to understand this approach as descriptive, we have to consider Hart's influences which are essential for the understanding of his theory, but are often ignored, as Weber and Wittgenstein. So, the objective of this project is to present a critique of the distinction made by Rodriguez-Blanco between the internal points of view of Hart and Winch. In addition, we'll seek to offer a new interpretation of the methodological difference between these two authors regarding to the theorist's perspective in relation to the studied social practice, given that while Hart positions the theorist as an observer of the practice, Winch considers that for a complete understanding of the social practice the theorist should position himself or herself inside the social practice, as a participant of the social form of life analyzed. And it is based on this difference that the distinction made by Hart between the evaluative and the descriptive character in his hermeneutic approach makes itself evident, which is central for the understanding of the whole positivist legal tradition.