Z Taking Context Seriously-Some Thoughts about the New Paradigms of Jurisprudence

It is not an easy job for jurisprudence to develop a new paradigm. In this paper I will try to make some reflections on the paradigm change of jurisprudence through examining the separation mentality of Anglo-phone analytical jurisprudence from Austin to Hart. Based on Alexy's distinction of the paradigm of legal philosophy, comprehensive ideal and restrictive maxim, I am going to discuss the emergence of separation mentality in analytical jurisprudence, the restrictive ambit of analytical legal positivism, and the development of Hart's theory. With separation mentality, Hart ultimately decided to isolate legal philosophy from political philosophy, accept J. L. Austin's rather than Wittgenstein's understanding of context, and abandon the research method of social jurisprudence completely. This choice had a great impact on Anglo-phone jurisprudence in the past half century. Nevertheless, the social jurisprudential approach abandoned by Hart also found its way out to flourish by other nonanalytical minded scholars in the past few decades. Now we already have seen an "anti-separation mentality" paradigm of jurisprudence growing up. I also discuss two issues regarding this development briefly.