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INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 7, NO. 3, 2000

Pandora’s box: jurisprudence in legaleducation

Roger CotterrellQueen Mary and West® eld College, University of London, London, UK

I

Perhaps jurisprudence has a moderately secure place in undergraduate law curriculain the UK at presentÐ after much controversy and many local skirmishes in universitylaw departments. If this is so, it is because it is thought to oþ er something importantthat other law school courses cannot or do not oþ er. But the nature of this`something’ and how important it is are far from clear. Sometimes the subject is oneamong many optional units in an undergraduate law curriculum; its position suggeststhat it oþ ers something valuable, yet not essential to every law student’s education.In many other single honours law programmes, jurisprudence is a compulsorysubject; its curriculum status indicates that undergraduate legal education is oý ciallyconsidered incomplete without it. In yet other settings, it is one of a small numberof `protected’ options from which undergraduates must choose in their law degreeprogramme. In this last case, the curriculum placing suggests that jurisprudenceexempli® es a kind of study necessary to a full legal education, but that the subject’sspeci® c material is not, itself, essential.

These con¯ icting messages about jurisprudence’s signi® cance, which the diverse(but now, it seems, relatively stable1) placings of the subject in the curriculumconvey, indicate a lack of agreement among law teachers about its value. Andteachers of jurisprudence themselves give a wide variety of views about the purposeof the subject. Yet the vast majority consider that it ` makes students think aboutthe nature of law’’ or ` gives a broader perspective’ ’ on law as ` an important socialactivity’ ’ .2 This suggests that jurisprudence presents material to inspire this radicalthinking and provide this broadening of view.

How far does the subject really do these things? It should be noted, ® rst, that insome respects taught jurisprudence (especially as re¯ ected in the kinds of materialpresented in introductory textbooks) is a rather well settled body of theory. Whereasin many other scholarly ® elds the idea of a canon of classical or fundamental literature

Address for correspondence: Roger Cotterrell, Department of Law, Queen Mary and West® eld College,Mile End Road, London, E1 4NS

ISSN 0969-5958 print/ISSN 1469-9257 online/00/030179-09 � 2000 Taylor & Francis LtdDOI: 10.1080/09695950120044376

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is breaking down, or has already done so, in taught jurisprudence in the UK such acanon still clearly exists, as Hilaire Barnett’s recent survey shows.3 It includes: theclassical utilitarian tradition (especially Bentham and Austin); Hart and Dworkinindividually and locked in debate; classic writings on legal positivism and liberalismas a theoretical spine around which much else is arranged; key representatives of legalrealism (now often supplemented by critical legal studies), Marxist legal theory andnatural law as a combined `oý cial opposition’ to the mainstream; modern US theoriesof social justice (Rawls and Nozick); and the Mill± Hart± Devlin debate on law’s roleas an agent of morality. The most important invader of the canon of establishedtheoretical writings in recent years has clearly been feminist theory.

However radical jurisprudence is claimed to be, however much it is claimed toprovide a window for law students on contemporary law in its changing socialcontext, its body of ideas actually changes quite slowly. Austin is still taught in depthin 59% of jurisprudence courses in the UK. Hart’s dominant position in the canonhas not changed in 20 years. There is much diversity in what is covered in teaching,but a generally strong continuity with the perceived classics.

Some ways of viewing this pot-pourri of approaches, theories and foci may bemore productive than others. Perhaps least productive is the approach that seesthem as making up a uni® ed intellectual ® eld or even a discipline, perhaps labelledin the teaching context as `legal philosophy’ (which tends to imply a branch ofphilosophy). The problem for such an approach is that no unity of methods or aimsuni® es the material of taught jurisprudence. Nor are there constant epistemologicalor ontological bases of the theories typically brought together in this way. They havebeen created for diþ erent purposes at diþ erent times. In many cases the theories arethe work of jurists who saw themselves mainly as addressing various practicallawyers’ issues about law. Other theories, however, are the work of scholars withdiþ erent primary intellectual allegiancesÐ to moral or political philosophy, forexample, or social theory of various kinds. It seems important to recognise clearlythat jurisprudence is uni® ed only by its place in legal education (which, as notedabove, is a matter on which law teachers agree to disagree). A virtue of such a clearrecognition is that it prevents anyone mistaking the canon of taught jurisprudencefor an intellectually integrated whole, rather than the historically and geographicallycontingent collection of materials that it is.

One marker of this contingency is the overwhelming dominance of Anglo-American writings in the current mainstream or central theoretical spine of the UKjurisprudential canon, and the virtual absence in this role of important ContinentalEuropean traditions of legal theory,4 let alone theoretical materials from furthera® eld. While many such traditions have been re¯ ected in taught jurisprudence inthe UK at various times, it seems that they tend gradually to be marginalised in it.Yet jurisprudence as a taught subject is not usually presented as being concernedexclusively with Anglo-American legal issues. It seems, however, that it does nothave the role of explaining law’s nature in some general and comparative way. Itsscope appears to be determined pragmatically. It provides materials to illuminate aspeci® c range of legal experience relevant primarily to the intending lawyer in acertain jurisdictional context.

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JURISPRUDENCE IN LEGAL EDUCATION 181

If follows that a more modest, but also more realistic, way to view taughtjurisprudence is as a rather disordered compendium of very disparate elements. Soseen, it is a complex intellectual patchwork. It does not necessarily make any seriousattempt to tie itself to any particular conception of philosophy as a discipline ortradition of inquiry, but makes space for the social and human sciences, linguistics,history and other knowledge ® elds, as well as for a range of more explicitlyphilosophical traditions. The appeal may for some teachers be to a speci® c disciplineor approach, thought of as holding the key to theoretical `truth’ about law, but intaught jurisprudence this is often not the case. More often the course tends to be asampling of a wide range of literatures.

In this situation, the jurisprudence teacher might be imagined as rummaging ina box of diþ erent knowledges, pulling out the shiniest items to catch the eye ofstudents. The box is labelled law and other disciplines’ or perhaps merely `law andsociety’ . It contains whatever has been put in it at various times by `wanderingjurists’ ,5 who have come across intellectual objects they thought legally interesting.Jurisprudence teachers often add their own personally treasured items. Some objectsin the box were found on travels to scholarly ® elds considered remote from locallegal professional experience (for example, psychoanalysis, geography, anthropology,semiotics and aesthetics). Some are commonplace domestic items (for example,common law traditions, the rule of law, legal positivism and concepts such aspunishment or authority). The teacher’s job is to take a cluster of objects (perhapsa very personal selection) from the box and tell a story that links them and holdsstudents’ attention. The approach relates to jurisprudence’s role as what Julius Stonecalled the lawyer’s `extraversion’ ,6 a turning outwards to look at law’s contexts, tolocate law in the broadest and most diverse intellectual, moral and social settings,to stand (notionally) in those settings and see how law appears; perhaps to standoutside law in some way or, at least, outside the legal thoughtways becomingincreasingly familiar to the law student through the study of legal doctrine in otherlaw school subjects.

II

The image of the box of ideas is subversive. It implicitly denies the ideal of a fullyintegrated body of knowledge. What does jurisprudence add up to? For studentsthis is often the hardest question. Perhaps as an undergraduate one can speak ofmastering the law of contract: the mass of principles makes a kind of whole, or canbe believed to do so (at least at examination time). But jurisprudence resists thisresult. The contents of the box of jurisprudential ideas could be arranged in anin® nity of ways. And there is no necessary inventory of contents. The message ofjurisprudence, viewed in this way, is of contingency and incompleteness, uncertaintyrather than certainty, questions rather than answers, and the importance of personaldiscovery rather than the acceptance of authority. I think this is the key to the powerwhich jurisprudence has to bring something important to legal education. Legalthought tends to seek closure; that is, rational consistency and authoritative solutionsto legal and social issues. But the incompletenessÐ even arbitrarinessÐ of the juris-

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prudence canon ultimately conveys for the thoughtful student a disturbing messageof law’s own indeterminacy and un® nished nature as a form of social knowledge. Lawas legal doctrine seeks the security of closureÐ a complete and reliable professionalknowledge. But jurisprudence teaches (by its very nature as a law school subjectand perhaps almost irrespective of the particular content of the course) that law isimplicated at all times with diverse forms of knowledge which law itself cannotcontrol or systematise. The message is that law orders the social world provisionallyand contingently. Yet legal order is not insigni® cant; it is all the more remarkable inthe face of the social complexity and contingency it must address.

Seeing jurisprudence in this intellectual context explains much, I think, aboutstudents’ typical reactions to the subject. For the weakest students, the subject maybe incomprehensible because its purpose is not understood. For more able ones, thesubject is disturbing because it is seen to disrupt the certainties that much legaleducation otherwise fosters and relies on. It suggests, at least, that there is more tolaw than they had otherwise thought. But for the best students, jurisprudence’suncertainties directly inspire, eventually, a far richer understanding of law, built onnew respect for the sheer complexity of law’s ordering tasks in a world of contingencyand complexity.

Because jurisprudence draws its material from many sources there is sometimesa tendency to see it as observation of law from `the outside’ , or as a view of a moralor social context from inside’ the lawyer’s world (as with Stone’s idea of thelawyer’s `extraversion’ ). But this inside± outside terminology is ultimately unhelpful;everything depends on where one stands when participating in or observing law. Theinside± outside distinction re¯ ects a particular professional viewpoint or theoreticalpreference in relation to legal analysis.7 Nevertheless, taught jurisprudence certainlygets some of its strangeness (particularly for students) as a law school subject fromthe fact that it can easily be thought of as `inside’ law’s domain, or `outside’ it, or(most commonly perhaps) somehow running in and out of this domain withbewildering indecision. Jurisprudence seems, on such a view, like a restless individualwho cannot decide whether to stay inside the house and clean the rooms or gooutside and repair the pointing.

It is easy to fall into using the metaphor of law as a structure with an inside andan outside, because so much of legal education reinforces the idea that law is sucha structure. The law student is taught how to gain entry to what is presented as thelawyer’s professional house of law; how to ® nd the way around it, feel at home in itand look out of the windows at the world outside. After this induction, the outsideworld looks very diþ erent from the way it appeared before. It is easy to forget thatthere may be other, diþ erent houses of law which citizens inhabit.

I believe that jurisprudence as a taught subject has the task of preventing thestudent’s existence inside this house of professionalised law from becoming toocomfortable; that is, so comfortable that one forgets the need to step outside andbreathe the air outdoors. It is necessary to see the social world not just through thewindows of law’s professional mansions. It is important to see more than the imagesof society that are reinforced in the dominant professional worlds of law. Thatmeans, in turn, challenging dominant professional images of law, because these

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images are themselves shaped in the wider context of lawyers’ self-images asinhabitants of a social world conceptualised in terms of citizens or subjects, groupsor individuals, communities or states. If one sees this social world only in terms oflaw’s professional imagery it becomes hard to see the trajectories of law’s develop-ment, the forces shaping it, its potential and limits and the varieties of legalexperience.

Most law school subjects are taught now, or can be taught, in ways thatactively seek to transcend familiar professional perspectives on those subjects. Butjurisprudence surely has the special task of permanently challenging central andgeneral assumptions of professional thought. It is always in the business ofbroadening legal perspectives, breaking down internal± external distinctions that legalthought creates, letting light into the professional house of law (that is, the currentlydominant orientations of professional legal thinking) showing the house from manyangles and perhaps emphasising that the professional house of law is not the only orthe most important place in which law exists.

The image of a box of ideas from which the jurisprudence teacher selects is notintended to be a demeaning oneÐ as though the teacher is to be seen as a trickster,magician or mere entertainer (though maybe there has to be something of each ofthose roles in portraying the complex reality of law). The ideas box is a useful image.It suggests that what is taught in jurisprudence is less important than how it istaught. One can teach classical jurisprudence (Austin or Hart, for example) incontext’ Ð the context of the political and professional needs to which in particulartimes and places it respondedÐ and thereby tell a diþ erent story from the ones thathave become professional orthodoxy. One can teach Durkheim or Habermas orFreud (or a host of other `non-jurist’ theorists) as jurists and thereby shine a diþ erentlight on legal knowledge. The test of whether the story told is a good one in ajurisprudence course is whether it conveys powerfully something diþ erent aboutÐ anew perspective onÐ general assumptions about the nature of law that are oftenpresupposed in other law school courses.

What should be conveyed? I think jurisprudence should be constructively subver-

sive. It should question assumptions that underlie received professional wisdomabout the nature of law in general, rather than about the nature of particular legal® elds. It should do this in a way that enriches professional understanding bybroadening it. It should require students to understand that the current view out ofthe window in the professional house of law is not the only available view of thesocial world that law inhabits. It should make clear that any house of scholarshipand practice that law’s professional guardians inhabit looks diþ erent when one stepsoutside it, and that the value and importance of this scholarship and practice becomesubject to criteria of assessment diþ erent from those that are often professionallyencouraged or favoured.

Broadening perspectives on law certainly does not entail declaring dominantprofessional views of law to be wrong or misguided. The task is rather to revealthem as partial, as particular views of law that can co-exist with others; to show thestudent a plurality of perspectives, illustrated through diþ erent theories, or diþ erentreadings of theories. A broadened perspective is one that makes it possible to

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understand a range of viewpoints in themselves but also to locate them in relationto other viewpoints. This is why, ultimately, there is no `inside’ view of law to becontrasted with an `outside’ view, but only diþ erent kinds of experience of law (forexample, of diþ erent categories of legal practitioners and diþ erent categories of non-lawyer citizens), which necessarily lead to diþ erent perspectives. Clearly, this posesproblems for students seeking ® nal answers. That there are no objectively rightanswers in jurisprudence may seem obvious to those who teach it but can be deeplydisturbing for students: until, that is, they realise that it can be illuminating to seethe favoured answers given in professional legal thought as limited. Then there isthe prospect for them of realising that understanding the nature of law is a questopen to them using their own developing experience; not a matter of seemingly® nished knowledge, like a House of Lords decision that cannot be appealed.

III

What jurisprudence has to oþ er, then, I think, is a permanent constructive challengeto existing professional legal thought. Not a destructive challenge but one declaringthat there is a plurality of perspectives on law, and that any teaching suggesting onlya single perspective to be available is false and dangerous. Jurisprudence, understoodin this way, challenges received ideas. But received professional wisdom about thenature of law does not stay the same in all times and places. Even if we think onlyof jurisprudence teaching in the context of legal education in the UK (and, evenmore speci® cally, England), it is possible to see that the challenge that jurisprudencehas oþ ered has altered over time. It has been adjusted to re¯ ect changing perceptionsof law within the legal profession. This is a major topic for inquiry in its own right.But, for present purposes, three broad phases in the development of jurisprudence’sconstructive subversionÐ its challenge to legal professional accepted wisdomÐ mightbe identi® ed.

In its earliest phase modern English jurisprudence challenged the idea thatexplicitly developed theory had no place in legal analysis. It challenged common lawempiricism and pragmatism. Perhaps the most important contribution of Benthamand especially Austin in this context was simply to make a recognised space for legaltheoryÐ for explicitly developed general theory of the nature of law. Jurisprudencetaught, for example, the importance of considering theoretically law’s systematicand formal character, its bases of authority and its doctrinal unity or autonomy. Inthis way it facilitated comparison of legal styles and systems, and a more re¯ exiveview of the nature of legal reasoning.

Once that battle was substantially won the task changed. I suggest that itbecame a task of challenging the idea of law as a self-contained discipline or modeof understanding or reasoning. Jurisprudence in this second phase was the ¯ agshipof interdisciplinarity and multidisciplinarity in legal education. Its practitioners tookit upon themselves to look actively for insights in what their law school colleaguestypically regarded as `other disciplines’ outside law. In this way, the reality of law asa disciplinarily weak ® eldÐ but a rich focus for multidisciplinary debateÐ wasregistered explicitly in legal education. Jurisprudence teaching challenged law’s

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apparent disciplinary autonomy, celebrated or assumed elsewhere in much of theteaching of other law school subjects.

It seems clear now that the battle for interdisciplinarity and multidisciplinarityin much of legal education has been substantially won, at least for the time being.It is hard to see how a counter-oþ ensive could succeed in current conditions.Jurisprudence is no longer needed to proclaim a multitude of disciplinary faiths ordeny allegiance to any. I think it was this development, above all, that madejurisprudence’s position in the law curriculum in the UK uncertain after theestablishment of `law in context’ teaching from the late 1960s. While the `law andother disciplines’ box had been a good resource for challenging the claimed insularityof legal thought, it had obviously become available not just to jurisprudence teachersbut to all interested law teachers, whatever their legal ® eld.

Where does this leave jurisprudence? I think that the box of resources on whichit draws for its teaching resources has to beÐ if jurisprudence is to maintain itsconstructive challenge to orthodoxyÐ a Pandora’s box; one that, once opened, letsloose troubles into the world of legal complacency. Merely appealing to an ever-widening range of knowledge ® elds as sources of insight about law is not enoughany longer to provide that challenge. The important matter now, in what might bethought of as modern English jurisprudence’s third phase, is to ask: Why do we seekto broaden theoretical perspectives on law? Why do we need to call on (for example)philosophy or social science in jurisprudence when this is already done in so manytaught legal subjects? In what ways can the use of these resources still challengecomplacency in legal thought, in the ways that jurisprudence has necessarily soughtto do to earn its distinctive place in law teaching?

One important answer surely lies in contemporary jurisprudence’s emergingconcern with what may be calledÐ to use a term well established in legal theoryÐlegal pluralism, orÐ a less familiar termÐ perspectivism. Orthodox legal thought hasstill not yet come to terms with important changes taking place in the way legalauthority is understood and experienced, and with radical changes in the range andvariety of sources of law. Modern English jurisprudence as a taught subject, whosebeginnings might be traced to John Austin’s London lectures of 1829± 33, arose asthe nation-state consolidated its position as the author of virtually all law. Austindid not recognise the legal status of international law in his perspective of sovereign±subject legal relations within independent political societies. Equally, autonomouslocal legal systems and jurisdictions appeared to be subsumed relentlessly duringthe nineteenth century in the monolithic authority of state law.8 Modern lawmarginalised all forms of legal experience except those related directly to thejurisdiction of the nation-state.

A century and a half later, matters appear somewhat diþ erently. Transnationallaw, in many diþ erent forms, demands an adequate legal theory. The diversity oflegal expectations and traditions within nation-statesÐ re¯ ected in multiculturalism,regionalism and more general demands for recognition of the distinctiveness anddiversity of group lifeÐ similarly demands legal recognition as a central, not merelyperipheral, aspect of legal regulation. Jurisprudence as the constructive subversionof professional orthodoxies needs now to reveal the inadequacies of centralist legal

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186 ROGER COTTERRELL

thinking; that is, of theories that postulate monistic rather than pluralistic sources oflegal authority and legal regulation. It needs to challenge the vacuum in legalthought that threatens to arise from the latter’s excessively individualistic outlook.Jurisprudence surely needs to probe the inadequacy of legal understandings of theautonomy and variety of experience of group life and of autonomous sources ofregulatory authority created within groups. It needs to examine how extremelydiverse forms of legal authority are seeking mutual accommodation in an increasinglycomplex world; and how new sources of legal authority beyond or apart from thoseof the nation-state are gradually forming or changing their character. Perhapsjurisprudence must now express the idea that law is to be understood from variousperspectives because it is experienced in a variety of ways, its authority is judgedfrom a variety of communal standpoints and its diverse sources increasingly competewith and challenge each other in local, state and transnational jurisdictions.

If these ideas remain inchoate and open-ended it is because jurisprudence as achallenge to orthodox legal thought has no option but to raise problems andperspectives beyond those that professional legal thinking has accommodated. Nodoubt there are other forms of challenge to orthodoxy that jurisprudence as acomponent of the undergraduate law curriculum can and should make. The chal-lenges of pluralism and perspectivism seem, to me, among the most urgent andimportant.

By making such challenges, jurisprudence ensures that its box of resourcesremains not just a store of interesting ideas but a Pandora’s box. Opening it letstroubles into the world of professional law, via the examination of that world in legaleducation. But like Pandora’s troubles these are challenges that, once accepted, cansometimes also promote wisdom. The subversion is constructive. In my view,jurisprudence’s future role remains what it has always been: the constructivechallenging of professional orthodoxy, in the service of broader legal understanding.

Further reading

On the importance of legal pluralism for contemporary legal theory, see Petersen,H. & Zahle, H. (Eds) (1995) Legal Polycentricity (Aldershot, Dartmouth), andSantos, B. de Sousa (1995) Toward a New Common Sense (London, Routledge). Onthe growth and signi® cance of transnational law and some of its implications forlegal theory see Teubner, G. (Ed.) (1997) Global Law without a State (Aldershot,Dartmouth). Some of the analytical challenges posed by local, national and otherforms of legal diversity are discussed in Nelken, D. (Ed.) (1997) Comparing Legal

Cultures (Aldershot, Dartmouth). Cultural and social diversity and diþ erence as achallenge for contemporary law and politics are explored from a variety of standpointsin, for example, Kymlicka, W. (Ed.) (1995) The Rights of Minority Cultures (Oxford,Oxford University Press), Danielsen, D. & Engle, K. (Eds) (1995) After Identity

(New York, Routledge) and Minow, M. (1990) Making All the Diþ erence (Ithaca,Cornell University Press). For an interpretation of English jurisprudence in termsof its relationship to legal professional concerns, see Cotterrell, R. (1989) The Politics

of Jurisprudence (London, Butterworths). On legal thought as a professional project of

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intellectual closure, see Cotterrell, R. (1995) Law’s Community (Oxford, ClarendonPress), ch. 3 and 5; and for a sample of recent ideas on the theoretical problems ofexplaining how legal ideas structure social environments, see Nelken, D. (Ed.)(1996) Law as Communication (Aldershot, Dartmouth).

Notes

[1] See Barnett, H. (1995) The province of jurisprudence determined again!, Legal Studies, 15, 88± 127.[2] Barnett, loc. cit., 107.

[3] Barnett, loc. cit., 109± 120.

[4] Even Kelsen’s sophisticated work, which beyond the anglophone world is widely seen as fundamentalin any serious consideration of positivist legal theory, remains less important in jurisprudence taught

in the UK than Austin’s much criticised theories, according to Barnett’s survey.

[5] The term is William Twining’s, implying for him both geographical and intellectual movement. SeeTwining, W. (1997) Law in Context (Oxford, Clarendon Press), ch. 1.

[6] Stone, J. (1968) Legal System and Lawyers’ Reasonings (Sydney, Maitland), p. 16.

[7] See Cotterrell, R. (1998) Why must legal ideas be interpreted sociologically?, Journal of Law and

Society, 25, 171± 192.

[8] Arthurs, H.W. (1985) `Without the Law’: Administrative Justice and Legal Pluralism in Nineteenth-

century England (Toronto, University of Toronto Press).

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