Why Jurisprudence Is Not Legal Philosophy

DOI httpdxdoiorg105235204033135141 (2014) 5(1) Jurisprudence 41ndash55

Why Jurisprudence Is Not Legal Philosophy

Roger Cotterrell

INTRODUCTION

In the contemporary Anglophone legal world the identity purpose and scope of jurisprudence are sporadically contested but more often now left unexamined Perhaps because of a deep uncertainty about its nature which has made it hard to defend intellectually jurisprudence has increasingly over the past few decades been treated as having been incorporated or redefined into something with a dif-ferent namemdashlegal philosophy Legal philosophy as that term is now understood in Anglo-American scholarship designates a field of theory often seen as having higher intellectual status than that which jurisprudence possessed before its incor-poration or redefinition Legal philosophy presents itself as having a clear identity and strong intellectual underpinnings located in philosophy Its methods choice of problems forms of argument and criteria of relevance are seen as validated by philosophy as an academic discipline legal philosophy is the branch of philosophy that takes law as its object

Indeed the tendency among many self-identified Anglophone legal philoso-phers has been to view jurisprudence insofar as it is not legal philosophy in this contemporary sense as unworthy of serious scholarly attention And it is true that jurisprudence often seems to be a disconnected package of insights about law drawn with little discrimination from lsquonon-legalrsquo academic disciplines in the humanities and social sciences and from lawyersrsquo theoretical speculations on their own legal professional knowledge and practice In the past it seemed important for legal philosophers to attack jurisprudencersquos lsquosyncretism of methodsrsquo1 the unsystematic package of approaches that characterised it in its primitive (pre-philosophical) state Today these attacks are usually considered unnecessary Legal philosophers see the battle for intellectual rigour as won as far as they are concerned Contempo-

Anniversary Professor of Legal Theory Queen Mary University of London UK This article is adapted from a paper given at a colloquium in honour of Michael Freeman held at University Col-lege London in July 2013 A substantially different version will be published in a festschrift made up of papers from that colloquium I am grateful to Maksymilian Del Mar and David Schiff for com-ments on a draft to this journalrsquos anonymous reviewers and to David Nelken for much invaluable discussion of related issues

1 Hans Kelsen Pure Theory of Law (Peter Smith 1989) 1

Jurisprudence42

rary Anglophone legal philosophy tends its furrow unconcerned with the nature of jurisprudence insofar as this could be something different from what legal philoso-phers do2 jurisprudence might be acceptable as the name for a pedagogic package to broaden the minds of undergraduate law students but this would not validate it as a serious field of academic research

This articlersquos purpose is to defend jurisprudence as something more than a pedagogic package and as an enterprise distinct from legal philosophy It argues that however undisciplined (in academic terms) and philosophically inept its lit-erature may often have been it is properly seen as an important body of thought about law that aims at exploring aiding and developing the prudentia of jurists A dictionary search reveals that prudentia can mean acquaintance knowledge sagacity prudence discretion and foresight which will serve as a provisional set of meanings here3 one to attach to an ideal juristic understanding of law On this basis jurisprudence is not an academic field certainly not a modern academic discipline It is at best a patchwork of insights related to the idea (and ideal) of law as a practice of regulation to serve social needs and social values as these are recognised in particular times and places So jurisprudence on this view is an exploratory enterprise aimed at serving an ongoing ever-changing juristic practice It is not aimed at finding ultimate truth about lawrsquos nature or timeless lsquoessentialrsquo or lsquonecessaryrsquo characteristics of the legal

What may be timeless is the task for which jurisprudence seen in this way should provide enlightenment a task of making organised social regulation a valu-able practice rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation as these perennial values are understood in their time and place and as they might be further clarified and reconciled as legal ideals Jurisprudence in this view is aimed at informing those who are enduringly (usually professionally) con-cerned with the well-being of the idea of law as a practice in this sense equipping them with the means of promoting that well-being (itself a matter for interpreta-tion) For the purposes of discussion here such people with such concerns can conveniently be called lsquojuristsrsquo4 and the aim here is to defend jurisprudence as a contemporary enterprise of gathering knowledge to assist them

BRICOLAGE JURISPRUDENCE AND ITS ENEMIES

How could such an idea of jurisprudence be unpacked Lloydrsquos Introduction to Juris-prudence edited through many editions by Michael Freeman has been the textbook

2 Thus the Oxford Handbook of Jurisprudence amp Philosophy of Law (Oxford University Press 2002) treats its subject as legal philosophy and makes no reference to jurisprudence as a field

3 Philosophers have defined the term for particular purposes but the diversity of meanings suggested by these words is important here They usefully imply that jurisprudence cannot be systematically codified as an ethical or other programme but rather promotes or serves a cluster of (not necessarily easily integrated) juristic virtues

4 Cf Roger Cotterrell lsquoThe Role of the Jurist Reflections around Radbruchrsquo (2013) 26 Ratio Juris 510

Why Jurisprudence Is Not Legal Philosophy 43

used by generations of jurisprudence students in many countries The book pri-marily serves lsquopedagogicrsquo jurisprudencemdashit relies on educational justifications which as noted earlier this article aims to go beyond5mdashbut in doing so it defends a vision of jurisprudence that rejects the claim that this should be equated with legal philosophy The approach adopted can be called theoretical lsquobricolagersquo6mdasha bit of this a bit of that with each different theory or set of ideas given a hearing never defined ab initio as outside the agenda of debate not required to show its pre-validated ticket of entry into the lsquoprovince of jurisprudencersquo as lsquoan exclusive field of inquiryrsquo7 The approach is merely open-minded curiosity as to what could be inspiring what might show law in a new light

Dennis Lloyd stated in presenting his textbook that he wrote lsquoas a lawyer and not as a philosopherrsquo8 Clearly he did not regard this as a fatal flaw but it raised the issue of how the jurisprudential project should be related to the legal philosophical one He contented himself with rejecting (as early as 1959) what he saw as excessive claims for linguistic philosophy as a route to legal enlightenment9 His approach continued a jurisprudential tradition that was not oriented towards defending itself in modern academic disciplinary terms As he made clear his reference points were law (as an immensely important social political and moral idea) and lawyers and not the specific disciplinary orientations of any of the humanities or social sci-ences The implication was that jurisprudence did not need the credentials of these disciplines to support its validity But this would certainly not be the only accept-able (or even necessarily the most important) way to approach law theoretically because clearly law is not just to be studied for juristic purposes Defending a kind of bricolage jurisprudence agrave la Lloyd is entirely compatible with championing for example legal philosophy (in collaboration with moral and political philosophy) and legal sociology as powerful enterprises aimed at the theoretical study of law and legal phenomena for mainly non-juristic purposes (but which might produce much juristically valuable knowledge along the way)

lsquoOpen-minded curiosityrsquo is not enough to justify jurisprudence Open-minded-ness and curiosity can lead in many directions and surely towards the plethora of approaches to legal scholarship existing today which have often seemed to leave jurisprudence as a backwater In part it is because of a failure to demarcate and defend jurisprudence with sufficient clarity as a project that a need was felt to replace it with an academically rigorous legal philosophymdashvalidated by philosophy as a profession Despite this many scholars have insisted on the non-equivalence of jurisprudence and legal philosophy but usually in ways that put jurisprudence in a position of relative weakness

5 I have discussed the specific value of pedagogic jurisprudence in Cotterrell lsquoPandorarsquos Box Juris-prudence in Legal Educationrsquo (2000) 7 International Journal of the Legal Profession 179

6 On bricolage in jurisprudence see NEH Hull Roscoe Pound and Karl Llewellyn Searching for an Ameri-can Jurisprudence (University of Chicago Press 1997) 8ndash13

7 Cf Andrew Halpin lsquoAustinrsquos Methodology His Bequest to Jurisprudencersquo (2011) 70 Cambridge Law Journal 175 184

8 Dennis Lloyd Introduction to Jurisprudence with Selected Texts (Stevens 2nd edn 1965) xvi9 Ibid xvindashxvii

Jurisprudence44

For Julius Stone10 jurisprudence is lsquothe lawyerrsquos extraversionrsquomdashbut how far this turning outwards should go what it is a turning outwards from and what is to be gained by this were not adequately explained Stone was clear that most jurispru-dential problems were different from those of philosophy11 but not about what linked those problems into a coherent enterprise William Twining also refusing to equate jurisprudence with legal philosophy defines it as lsquothe general or theo-retical part of law as a disciplinersquo12 But this begs the question of the nature and boundaries of law as a discipline and what is still needed is a unifying aim for the jurisprudential project13 Twining once listed at least five distinct functions that jurisprudence may perform for the discipline of law14 These can be summarised as integrating it facilitating its relations with other disciplines philosophising about lawrsquos nature and functions lsquomiddle orderrsquo theorising about law as a practice and exploring the intellectual history of legal scholarship15 On Twiningrsquos view legal philosophy is part of jurisprudence But what the whole adds up to is a set of tasks without any very clear relationship between them jurisprudence is thus described but not systematically justified

A popular contemporary jurisprudence text takes a different approach lsquoJuris-prudential questions while ldquotheoreticalrdquo are the sorts of questions about ldquothe nature of lawrdquo to which any lawyer or judge might be expected to provide a rea-sonably intelligent answer helliprsquo16 This has the virtue of linking jurisprudence not to any particular disciplinary protocols or academic field but to law as a diverse ever-changing range of practices It comes closest to the argument this article will make but more needs to be said about the kind of contribution jurisprudence can make to these practices And must every lawyer be expected to have answers to jurisprudencersquos questions

By contrast legal philosophers are often very clear lsquoJurisprudencersquo writes Brian Leiter is lsquothe study of philosophical problems about lawrsquo and lsquodistinctively philosophical problems hellip define the discipline of jurisprudencersquo17 These problems are given by a certain understanding of the nature of philosophy Beyond this on such a view there may be no worthwhile legal theory and jurisprudentsmdashfor exam-ple critical legal theorists feminist legal theorists the anti-positivist Lon Fuller postmodernists critical race theorists and economic analysts of lawmdashlsquoas opposed

10 Julius Stone Legal System and Lawyersrsquo Reasonings (Maitland 1968) 1611 Ibid 812 William Twining The Great Juristic Bazaar Juristsrsquo Texts and Lawyersrsquo Stories (Dartmouth 2002) 313 There is a similar problem in treating jurisprudence as lsquothe epistemological basis of legal knowledgersquo

(see RHS Tur lsquoWhat is Jurisprudencersquo (1978) 28 Philosophical Quarterly 149 158) when the scope of legal knowledge remains to be clarified

14 William Twining lsquoAcademic Law and Legal Philosophy The Significance of Herbert Hartrsquo (1979) 95 Law Quarterly Review 557 575

15 For a broader but perhaps more diffuse listing see William Twining General Jurisprudence Understand-ing Law from a Global Perspective (Cambridge University Press 2009) 9ndash10

16 James Penner David Schiff and Richard Nobles (eds) Jurisprudence and Legal Theory Commentary and Materials (Oxford University Press 2002) 4

17 Brian Leiter Naturalizing Jurisprudence Essays on American Legal Realism and Naturalism in Legal Philoso-phy (Oxford University Press 2007) 84 137 (emphasis in original)


to legal philosophersrsquo have purveyed lsquoso many half-baked ideasrsquo18 But this lsquophilo-sophical viewrsquo of jurisprudence19 has its costs

The following sections of this article sketch characteristics of the dominant outlook (rather than the substance) of contemporary Anglo-American legal philos-ophy focusing initially on its positivist core and then considering it more broadly I argue that these characteristics disable it from standing in for jurisprudence as the prudentia of jurists and have made it largely unconcerned to try to do so One consequence has been to make the juristic value of much legal philosophy contro-versial and even denied altogether in some quarters In the legal world it seems that the question of what legal philosophy has to offer is now rarely answered From such sceptical views of current legal philosophy (based here mainly on a collation of critiques from within the ranks of legal philosophers themselves) the article goes on to ask what jurisprudencersquos special function might be and why this research field needs no specific justification from any of the particular academic disciplines that contribute to it

OBSERVING CONTEMPORARY LEGAL POSITIVISM

Generalisation is risky but sometimes required to attempt to gain some overall per-spective on an intellectual field a sense of its shape and orientations and an insight into the directions of its development So it is necessary to try to identify here some general dominant characteristics of legal philosophy despite the variety of work it encompasses Within it what is often seen as its central part around which much of the rest is organised or engages can be called contemporary legal positivism (hereinafter CLP)

This enterprise of description and analysis of the conceptual structures of law is unified most obviously by its adherentsrsquo recognition of The Concept of Law as its orig-inating text 20 CLP has been said to stand lsquoas victorious as any research programme in post-World War II philosophyrsquo21 Its founding proposition as formulated by John Gardner is that in any legal system lsquowhether a given norm is legally valid and hence whether it forms part of the law of that system depends on its sources not on its meritsrsquo22 This proposition is held to differentiate CLP from what it understands as opposing projects in legal philosophy associated with natural law theory Thus natural law thought is for CLP a theoretical lsquootherrsquo against which it asserts its iden-tity The consequence of accepting CLPrsquos founding proposition is that conceptual inquiries about law can be conducted in a way that largely excludes any substantive moral or political concerns

Indeed it is tempting to see CLP as defined mainly by what it excludes from consideration Gardner is explicit about this noting that CLPrsquos founding proposi-

18 Ibid 100ndash119 Twining (n 14) 57420 HLA Hart The Concept of Law (Oxford University Press 2nd edn 1994)21 Leiter (n 17) 222 John Gardner lsquoLegal Positivism 5frac12 Mythsrsquo (2001) 46 American Journal of Jurisprudence 199 199

Jurisprudence46

tion addresses only the issue of lawrsquos validity23 other philosophical questions about law exist beyond this but are not specific to CLP and hence not part of its unifying project of exploring the implications of its central proposition This entails a com-mitment to the idea that what counts as law in any society is determined by the existence of certain social facts24 Interpretation of CLPrsquos founding proposition produces its two opposed factions now termed lsquoexclusiversquo (or hard) and lsquoinclusiversquo (or soft) positivism the former claiming that what determines legal validity cannot include purely moral criteria the latter asserting that while some (or many) legal systems might in reality exhibit moral criteria of validity a legal system not relying on any such moral criteria could be envisaged (and therefore law is still analyti-cally separable from morality) As is well known a huge literature now explores the ramifications of these and related claims The focus of attention is thus on develop-ing a rigorous concept of law based on a correct interpretation of CLPrsquos founding proposition

This article is not concerned with CLPrsquos debates around these matters but only with what from a juristic point of view appears as their narrowness While as Gardner insists they occupy only a part of legal philosophy the intensity intricacy and assumed crucial importance of arguments around them divert attention from other philosophical issues about law Many theorists25 have noted (and regretted) the narrowing of the concerns of positivist legal theory over time from Bentham to John Austin to Hart and on to Hartrsquos current CLP successors Early legal posi-tivism treating law as lsquopositedrsquo from identifiable political sources rather than produced through revelation nature or speculative reasoning on the human con-dition might be seen as providing a liberating basis for many theoretical inquiries about lawrsquos role in relation to morality and politics But gradually lsquothe needs of a detached descriptive jurisprudence were hellip relentlessly separated from the world of political theory in which so many contestable conceptions of human nature strove endlessly with one another This separation was not simply a dogma open to debate but a determination of the field of inquiry itselfrsquo26 Tightening philo-sophical protocols internalised throughout CLP have encouraged and justified this narrowing transmuting the enterprise of jurisprudence into a confined arena of debate policed not by criteria of social or legal significance but by canons of technical sophistication in argument

Legal philosophers outside the CLP camp and some within it have noted this situation Ronald Dworkin claims that CLP risks lsquointellectual insularityrsquo that it understands legal philosophy as lsquodistinct not only from the actual practice of law but also from the academic study of substantive and procedural fields of lawrsquo from lsquonormative political philosophyrsquo and from lsquosociology of law or legal anthro-

23 Ibid 223ndash424 Leiter (n 17) 12225 See eg Halpin (n 7) 200 Frederick Schauer lsquoPositivism before Hartrsquo (2011) 24 Canadian Journal

of Law and Jurisprudence 455 Dan Priel Towards Classical Legal Positivism Osgoode CLPE Research Paper No 202011 httpssrncomabstract=1886517 David Dyzenhaus lsquoPositivismrsquos Stagnant Research Programmersquo (2000) 20 Oxford Journal of Legal Studies 703 Twining (n 14) 558

26 Sean Coyle lsquoLegality and the Liberal Orderrsquo (2013) 76 Modern Law Review 401 401ndash2


pology hellip It is in short a discipline that can be pursued on its own with neither background experience nor training in or even familiarity with any literature or research beyond its narrow world and few disciples The analogy to scholastic theol-ogy is hellip temptingrsquo27

More restrained complaints are widespread On one view the legal positiv-ist tradition has produced lsquoexclusivity and disengagementrsquo through its particular conceptual and definitional focus but lsquothe frailty of the endeavour which rests a restrictive understanding of law on a single insight is obvious to everyonersquo except those pursuing it28 The narrowing of English positivist legal philosophy has left it only lsquoa shrinking audience within the academyrsquo it fails lsquoto communicate its ideas to those outside its own castersquo29 Anglophone legal philosophy has become a lsquosmall hermeticmdashand rather incestuousmdashuniversersquo30

For some critics the real indictment is that CLP has lost touch with the prac-tice of law and its social and political contexts To counter this it is necessary to discard the idea lsquothat the deepest questions confronting the doctrinal lawyer must await the ldquosolutionrdquo of prior philosophical problems A different viewpoint must prevail one must begin from the lawyerrsquos perspective the administration of justice at the concrete level helliprsquo31 The natural lawyer John Finnis whose work has often been seen in the past by CLP scholars as compatible with (because distinguishable from) their projects has recently passionately condemned Hartrsquos CLP legacy for its complacency blindness or narrowness of outlook leading to its refusal to address what Finnis sees as vital and urgent political and moral issues surrounding law in contemporary society32

An answer to these criticisms might be that even if they point to limitations of CLPrsquos projects they do not invalidate them on their own terms At worst they might indicate the insignificance of these projects as seen from some viewpoints33 Other criticisms however bite at CLP projects themselves Brian Leiter has argued that CLPrsquos view that philosophy requires a lsquomethod of conceptual analysis via appeal to folk intuitions (as manifest for example in ordinary language)rsquo has been under-mined by the lsquonaturalisticrsquo revolution in Anglophone philosophy from the 1960s34 While CLP has recently featured debates on method these have been lsquoidiosyncratic and narrowrsquo and divorced from wider debates in philosophy fundamentally chal-lenging the epistemic viability of conceptual analysis and of reliance on intuitions But in Leiterrsquos view CLP has usually unquestioningly assumed this viability of both matters as fundamental to its practice35

27 Ronald Dworkin Justice in Robes (Harvard University Press 2006) 21328 Halpin (n 7) 200ndash129 Richard Cosgrove quoted in Neil Duxbury lsquoThe Narrowing of English Jurisprudencersquo (1997) 95

Michigan Law Review 1990 199630 Leiter (n 17) 231 Coyle (n 26) 41832 John Finnis lsquoH L A Hart A Twentieth-Century Oxford Political Philosopher Reflections by a

Former Student and Colleaguersquo (2009) 54 American Journal of Jurisprudence 161 180ndash533 See eg Dyzenhaus (n 25) 71534 Leiter (n 17) 1ndash235 Ibid 164ndash75

Jurisprudence48

The kind of conceptual analysis that has been central to CLP has also been challenged by Finnis on the ground essentially that conceptual analysis presup-poses a choice (not a discovery) of concepts (such as a concept of law) and any such choice depends on the purposes for which concepts are sought Hence CLPrsquos projects of conceptual inquiry about law require an elaboration of these purposes and therefore require the opening of CLP to matters (including moral or political matters) outside its self-imposed analytical remit36 Efforts to go a little way towards this lsquoopeningrsquo while holding to CLPrsquos fundamental tenets seem to lead to much complexity37 Otherwise CLP sometimes attracts criticism for making assumptions about the nature of lawrsquos social and political contexts38 that it does not see as con-troversial because of its lack of concern to study these contexts in an empirical and comparative manner The issue becomes how far CLP accepting the validity of its narrow project is based on sufficiently firm foundations in pursuing it

The value of CLP to any idea of jurisprudence as a broad open inquiry is also put in doubt by criticisms of its typical modes of argument Andrew Halpin has discussed three ways of arranging argument that are relevant here39 One is lsquoaxi-omatic disengagementrsquo in which the acceptance of a certain theoretical approach to a defined subject-matter eventually makes meaningful communication with other theoretical approaches impossible Another is the promotion of a particular lsquoinsightrsquo (such as CLPrsquos founding proposition) so extensively that it is held actu-ally to define the relevant field of inquiry non-acceptance of the relevant insight or failure to see its full significance produces exclusion from the field of argument The third approach lsquosplitting the subject-matterrsquo assigns opposing views to differ-ent categories of inquiry (so that they need not engage with each other) Halpinrsquos example of this last approach is Hartrsquos claim that his work and that of Dworkin rep-resent entirely separate projects What is important for the purposes of this article is that these three approaches (which Halpin sees as having helped to shape CLP) are all ways of excluding argumentative engagement rather than encouraging the chal-lenge of different perspectives

An outward-looking curious exploratory jurisprudence would not be served by the approaches Halpin identifies which limit lsquoexternalrsquo engagement and explo-ration beyond pre-defined fields As regards the debates that do take place with critics or even sometimes lsquointernallyrsquo within CLP what can be observed is their frequent intensity and aggressiveness As one commentator notes lsquopositivists and their critics have extracted innumerable technical satisfactions from their explora-tion of the weaknesses of each otherrsquos positionsrsquo40 How far does this amount to

36 John Finnis Natural Law and Natural Rights (Clarendon 2001) ch 1 Finnis (n 32) 163ndash6 Cf Timothy AO Endicott lsquoHow to Speak the Truthrsquo (2001) 46 American Journal of Jurisprudence 229 John Gardner lsquoNearly Natural Lawrsquo (2007) 52 American Journal of Jurisprudence 1

37 See eg Joseph Raz Ethics in the Public Domain Essays in the Morality of Law and Politics (Clarendon Press 1994) 326ndash40 on the place of moral reasoning in about and through law Julie Dickson Evalu-ation and Legal Theory (Hart Publishing 2001) on lsquoindirectly evaluativersquo theory

38 See eg Coyle (n 26) Twining (n 14) 56439 Halpin (n 7) 180ndash540 Coyle (n 26) 404


point-scoring to what Edward Shils describes as the sharp-shooter approach of lsquothose who regard intellectual activity not as the extension of understanding but a game in which the prizes go for rigour and elegance of formulation and proof and for proving the other fellow wrongrsquo41 Perhaps this style often associated with certain kinds of lawyersrsquo debates carries over to the kind of philosophy that finds a home in some law schools

As Shils claims intellectual sharp-shooting is not always the best way to under-standing lsquoDiscoveries are not made in this way least of all self-discoveries and the discoveries of the self in onersquos fellow-manrsquo42 But the language of much debate around CLP evokes the sharp-shooter image43 Indeed the image has been explic-itly invoked recently by one weary protagonist in a long debate around CLPrsquos view of legality seeing its culmination as the final showdown of a lsquoHigh Noonrsquo encoun-ter44 But the irony only emphasises the destructive setting of debate

WHY LEGAL PHILOSOPHY IS NOT JURISPRUDENCE

If contemporary Anglophone legal philosophy is viewed beyond its positivist core the problems for its jurisprudential utility appear differently Certainly it contains a vast diversity of projects Definitional limitations on its scope can be fixed only by reference to philosophy as its parent discipline and to some kind of concern with law as its focus In earlier times when philosophy was less professionally compart-mentalised in the academy it was easy to treat legal philosophy and jurisprudence as synonyms because both could indicate a research field unified only by a focus on speculation around law What made problems lsquophilosophicalrsquo could remain a matter of little concern In principle nothing stopped jurists from declaring any of their general musings on law to be legal philosophy Today with legal philosophyrsquos identity fixed by its relationship to philosophy as an academic field matters are different

This introduces a new criterion for assessing the worth of legal theoretical inquiries on the basis of whether or not they are lsquophilosophically interestingrsquo45

41 Edward Shils lsquoOn the Eve A Prospect in Retrospectrsquo in Martin Bulmer (ed) Essays on the History of British Sociological Research (Cambridge University Press 1985) 168 See also Stefan Collini Book Review (2006) 69 Modern Law Review 108 113 discussing HLA Hartrsquos philosophical environment lsquoSeeing things in the form of ldquopropositionsrdquo and then conducting a stiff philosophy tutorial on their clarity and coherence could indeed dispose of a lot of fuzzy thinking though it was perhaps less well adapted to doing justice to matters of deep human interest that could not without loss be formulated in a series of neat ldquopropositionsrdquorsquo

42 Shils (n 41) 16843 Describing opposing ideas as lsquodemolishedrsquo lsquodismissedrsquo lsquohappily defunctrsquo lsquoridiculousrsquo lsquoabsurdrsquo lsquoasi-

ninersquo lsquopreposterousrsquo lsquospectacularly wrong-headedrsquo lsquosillyrsquo and lsquoa jokersquo to take a few examples See Matthew H Kramer lsquoFor the Record A Final Reply to N E Simmondsrsquo (2011) 56 American Journal of Jurisprudence 115 116 Brian Leiter lsquoThe End of Empire Dworkin and Jurisprudence in the 21st Centuryrsquo (2004) 36 Rutgers Law Journal 165 176 Leiter (n 17) 4 20 59 100ndash1 174 Gardner (n 22) 225

44 NE Simmonds lsquoKramerrsquos High Noonrsquo (2011) 56 American Journal of Jurisprudence 13545 Cf Twining (n 14) 569ndash70

Jurisprudence50

And ideas that could be of juristic interestmdashbecause relevant for a general under-standing of legal practice or experiencemdashsometimes appear as lsquoa philosophical messrsquo46 Indeed legal philosophical issues can it seems be pursued irrespective of any reference to lawrsquos actual settings For example on one view lsquothersquo concept of law can be elaborated philosophically in terms of lawrsquos lsquoessentialrsquo qualities whether or not these qualities exist in any particular social conditions if the evidence of conditions reveals that the regulatory forms do not conform to the philosophical concept of law it is not the concept that needs adjusting the conclusion should rather be that in those conditions there is no law47 What is philosophically essential is not governed by what contingently exists

There are several problems here for any jurisprudential project concerned with lsquothe idea (and ideal) of law as a practice of regulation to serve social needs and social values as these are recognised in particular times and placesrsquo To philoso-phise about law irrespective of experience in particular times and places may show limited concern for juristic relevance Legal philosophy mainly seeks universal truths rather than knowledge rooted in the particularities of social context48 and it is sometimes assumed that obtaining the latter would require lsquolife-consuming empirical studiesrsquo and lsquoa mountain of datarsquo49 So when legal philosophers refer to lsquosociologicalrsquo considerations they usually mean claims that can be made about the relevance of social conditions without actually studying these conditions A famous instance is Hartrsquos claim in The Concept of Law to be engaged in a project of lsquodescrip-tive sociologyrsquo50 This means for him mainly speculation on how people actually use languagemdashbut without any empirical inquiry about this any examination of its sociological significance or any recognition of possible social variation in language use

However what usually insulates legal philosophy from systematical empirical inquiries is ultimately not the purported difficulty of the latter but a conviction that empirical research is uninteresting as compared with efforts to discover context-free truth or to conceptualise what is essential in law these efforts being guided by intuitions as to what is philosophically significant or what are reliable foundations for inquiry

This articlersquos concern is not to debate whether a philosophical search for truth the universal or the essential in law (or in anything else) is appropriate as a

46 Cf Leiter (n 17) 6047 Joseph Raz Between Authority and Interpretation On the Theory of Law and Practical Reason (Oxford

University Press 2009) 25 91ndash9248 See eg Joseph Raz The Authority of Law Essays on Law and Morality (Oxford University Press 2nd edn

2009) 104 describing what he sees as lsquothe difference between legal philosophy and sociology of law The latter is concerned with the contingent and with the particular the former with the necessary and the universalrsquo As used by legal philosophers however this way of characterising the distinction implies misleadingly that sociology of law (unlike legal philosophy) is not concerned with or does not provide general legal theory In fact the key issue is what is the object to be theorised Is it law as experienced in particular kinds of society or civilisation or law as some kind of pure form detached from social context

49 Dworkin (n 27) 166ndash750 Hart (n 20) vi


philosophical project The issue is whether it is appropriate as a juristic project and whether any effort at finding knowledge of the legal world that has timeless valid-ity can be conducted without the kinds of empirical inquiries that philosophers regard as uninteresting or practically impossible Can one speculate about timeless or essential characteristics of law without studying the variety of forms that social regulation can take as well as the variety of social and historical contexts that influ-ence the ways in which theoretical issues are formulated and how far these are seen as important and meaningfulness as juristic concerns

If jurisprudence is understood as juristic knowledge focused on promoting the well-being of the idea of law as a socially valuable practice of regulation this knowl-edge must represent regulatory practices in their time and place reflecting the variability of socio-legal conditions Certainly jurisprudence understood in this way has no need to abolish from its range of interest broad speculations in moral and political philosophy it can surely find much inspiration in efforts to portray values and ideals of law as capable of transcending particular cultural contexts But these wide horizons of theory need juristically to be judged against and explic-itly related to local circumstances Any pretention to timelessness and universality needs to be discounted against empirical socio-legal study of the circumstances in which juristic tasks have to be performed From such a juristic outlook theoretical resources appear as a continuum involving different levels of generality different scale and scope But they are unified by an overarching project of serving the theo-retical needs of juristic practice in its time and place broadening this practice while keeping it rooted in changing experience encouraging critical imagination in it by an open search for comparative and philosophically ambitious insights about legal doctrine and about the contexts in which it is created interpreted debated and applied

Leaving aside contemporary legal positivism the main juristic problem with those parts of the contemporary legal philosophical enterprise that are integrated with moral and political philosophy is not narrowness but perhaps its oppositemdashthe expansive ambition of the effort to find truth about some aspect of human experience It might be said that many philosophical projects involve no more than working out the results of rigorous reasoning from certain accepted premises Nev-ertheless the product is often systems of thoughtmdashfor example theories of social justice of liberalism as a value system of democracy or of the moral goodmdashwhich claim or assume universal validity in relation to the matters they address Such phil-osophical systems are surely of interest for jurisprudence but they are not normally directed to juristic purposes This is certainly so if juristic tasks require a tempering of logic with (socio-legal) experience a pragmatic provisional managing of deep conflicts of values and understandings and the pursuit of legal ideals only with awareness of lawrsquos operational limits

Relations between legal philosophy and empirical socio-legal inquiry are cer-tainly matters for debate Leiter assuming a context of positivist legal philosophy insists that philosophy must be lsquocontinuous with empirical sciencersquo proceeding lsquoin tandemrsquo with it lsquoas a reflective attempt at synoptic clarity about the state of empiri-

Jurisprudence52

cal knowledgersquo51 in other words philosophyrsquos task is to organise intellectually what empirical study reports as existing The naturalistic critique entails that positiv-ist descriptive legal philosophy depends for its validity on finding foundations in empirical inquiries about law That must surely mean finding them especially in the related enterprises of comparative law and sociology of law the former insofar as it reveals the empirical variability of lawrsquos doctrinal and institutional forms the latter insofar as it studies legal practices institutions and experience systematically and empirically as social phenomena In some ways Finnisrsquos challenge to conceptual inquiry noted earlier is even more fundamental because it denies the possibility of separating CLPrsquos projects from legal philosophy in a larger sense integrated with moral and political philosophy And behind everything is the problem of the role of intuitions in determining what counts as important as a starting point for inquiry Perhaps a key to progress is to insist that intuitions be made explicit and justified Such a protocol would be almost guaranteed to widen the scope of intel-lectual discussion

It is possible to interpret these contemporary critiques as nudging legal philoso-phy in the direction of a receptiveness to an indefinite range of types of knowledge about law as an idea a set of practices and institutions and a field of social experi-ence broadening it (into wider moral and political concerns) and deepening it (to assess socio-legal conditions) A legal philosophy changing in these ways would come closer to the orientation that this article has associated with jurisprudence For the moment however these kinds of critique remain only at the edges of the contemporary Anglophone legal philosophical enterprise So this enterprise does not provide the range of knowledge and insight to serve fully the theoretical pru-dentia of jurists Legal philosophyrsquos protocols divide limit and insulate it from an outward-looking curiosity about the whole range of theoretical issues that might be raised in relation to law and about the relevance of empirical and comparative inquiries about law seen as a matter of juristic practice and social experience vary-ing with time and place

Current legal philosophyrsquos focus is not on juristic experience in all its practical complexity ethical ambiguity and contextual specificity but on abstract problems defined by philosophical interest Its dominant positivist approaches avoid or mar-ginalise important moral and political dilemmas that surround the practice and experience of law Its typical focus on the universal or the necessary blinds it to social variation revealed by empirical studies of law in society and the resources of socio-legal theory Its tendency to see its concerns as relatively independent of those of lawyers in practice and academic lawyers in general52 isolates it from many everyday juristic concerns53 But jurisprudence I shall suggest has to find its unity

51 Leiter (n 17) 4 17652 Gardner (n 22) 203 Leiter (n 43) 178 Cf Coyle (n 26) 415 Twining (n 14) 56253 This situation might be altered if the study of legal interpretation and reasoning was more central

in current legal philosophy See Halpin (n 7) 197ndash8 That it is not (despite important contributions by legal philosophers) may reflect the difficulty of addressing such matters convincingly without assessing the relevance of various moral political or other evaluative criteria that are avoided in the dominant positivist approaches to conceptual analysis Similarly in its dominant forms contempo-rary legal philosophy has resisted studying the processes of legislation and administrative lawmaking See Dyzenhaus (n 25) 719ndash21


and purpose in its recognition of the way that these matters together make up the theoretical universe of the jurist

JURISPRUDENCE AND JURISTS

The structured character of legal philosophy today presents a striking contrast to bricolage jurisprudence Lacking firm methodological commitments this jurisprudence has collected magpie-like insights from anywhere they can be foundmdashincluding for example English analytical jurisprudence Scandinavian legal realism many kinds of American and continental European theory moral and political philosophy economic analysis Marxism feminism the comparative speculations of historical jurisprudence and the legal anthropology of stateless societies Linguistic limitations often confine jurisprudencersquos practical reach but no disciplinary protocols do so And it can draw on everything that legal philosophy has to offer but it is a lsquophilosophical messrsquo54 What can unify it

It is not enough to defend it in the way that pedagogic jurisprudence is often defended as important for the lsquoliberal educationrsquo of lawyers One might ask why lawyers need a liberal education what that is and why jurisprudence (rather than other subjects of study) is needed to provide it Also for reasons suggested earlier it is not enough to advocate the lawyerrsquos lsquoextraversionrsquo (a close relation of the liberal legal education argument) Nor is it enough to state all the varied things jurispru-dence might encompass in a checklist Something has to hold all this together but what that is cannot be the theoretical or methodological protocols of an academic discipline Jurisprudence is not an application to law of the disciplinary protocols of philosophy sociology economics or anthropologymdashto list only the most obvious contenders Its orientation is not a focusing down from one or more of these disci-plines to the special topic of lsquolawrsquo It has to be a projection up from law as practice and experience into any realms of theory that can support that practice or make sense of that experience

It is easy to suggest how this shifts the focus of theoretical questions from a lsquolegal philosophicalrsquo orientation to a juristic one For example instead of asking abstractly lsquoIs there a general obligation to obey the lawrsquo one might ask how law can best be made fit to attract a sense of obligation from those who serve it profession-ally and those who appeal to it or are addressed by it as citizens Instead of asking lsquoWhat is the nature of law as a system of rulesrsquo one can ask how rules operate (and should operate) in lawyersrsquo practice and citizensrsquo experience of law Instead of asking lsquoDoes the concept of legality entail moral commitmentsrsquo one might ask what moral significance legality should be expected to have and how that might be achieved in specific socio-legal conditions Instead of asking generally lsquoIs unjust law still lawrsquo one might consider how far law can be just and what lsquojustrsquo can mean what should be understood in practice and in a particular time and place by the idea of lawrsquos lsquoflourishingrsquo and how can such flourishing be promoted Instead of asking how legal philosophy affects the world (eg whether legal positivism has pro-

54 Cf Leiter (n 17) 60

Jurisprudence54

moted liberty or tyranny) one should ask jurisprudential questions What in juristic practice has promoted quiescence in the face of tendencies to authoritarianism in particular societies and what could help to counter such tendencies

From this perspective it is easy to see why some of the legal theory most often disparaged in legal philosophy is sometimes seen as among the most enlightening jurisprudentially Clear examples are the work of Lon Fuller and Karl Llewellyn Very different theorists they were nevertheless indisputably jurists rather than phi-losophers and their focus was on law as a practice and indeed a craft As one writer suggests jurisprudence for them was lsquothe love and pursuit of a sort of law-yerrsquos wisdomrsquo55 For Llewellyn its problems arise from the need for society through its legal specialists to fulfil what he called the lsquolaw-jobsrsquomdashpractical tasks of dispute-processing fixing lines of authority social coordination lsquosmoothing frictionrsquo with lsquovision and sensersquo and integrating all the dimensions of legal work56 For Fuller these problems are about subjecting conduct to the governance of rules involving the promotion of core social values to be expressed through the practice and in the experience of law57

The idea of law as a craft may be incompatible with the idea of it as represented by any philosophically coherent system of thought At one level the juristic issues are about ensuring the efficiency of the tools of law for the social tasks to which it is to be directed understanding the technical character and limits of those tools at another the issues are about aspirations to elaborate and promote ultimate social values through law and indeed to understand and assess the practice and experi-ence of law in terms of those values So jurisprudence is concerned with asking about the juristic significance and meaning of such values In one aspect there-fore it points towards a need to clarify the nature of legal ideas as lawyers (and non-lawyers) understand these in another it points towards exploring what the philosopher FSC Northrop called the complexity of legal and ethical experience (a matter for which both philosophy and the social sciences are needed)58 In yet another aspect it involves exploring how juristic responsibilities relate to basic val-ues (such as justice and security) generally associated with law and to the prevailing ideologies of the society in which the jurist works59

The essential point is that however wide these jurisprudential inquiries become they start from and must relate back to conditions of legal practice and experience in their particular time and place This is why jurisprudence is unlikely to become a fully cross-cultural academic discipline or a pursuit of universal knowledge For that to happen juristic experience would itself have to become uniformmdashperhaps

55 Sundram Soosay lsquoRediscovering Fuller and Llewellyn Law as Custom and Processrsquo in Maksymilian Del Mar (ed) New Waves in Philosophy of Law (Palgrave Macmillan 2011) 32

56 Karl N Llewellyn and E Adamson Hoebel The Cheyenne Way Conflict and Case Law in Primitive Jurispru-dence (University of Oklahoma Press 1941) 290ndash3 Karl N Llewellyn Jurisprudence Realism in Theory and Practice (Transaction 2008) 322

57 Kenneth I Winston (ed) The Principles of Social Order Selected Essays of Lon L Fuller (Hart Publishing 2nd edn 2001)

58 FSC Northrop The Complexity of Legal and Ethical Experience (Little Brown 1959)59 Cotterrell (n 4)


in some future era of genuinely global law Juristic practice would have to become a universal enterprise crossing all national and cultural borders How far it already has some limited characteristics of this universality depends on how its nature is understood Perhaps it makes sense to distinguish a role for the jurist distinct from other legally focused roles The juristrsquos role might be seen as entailing a wider vision than that which many practising lawyers require for their everyday work a longer and broader focus than that typically needed by legislators and law reform-ers and a less case-focused more systematic perspective than that of most judges so perhaps it might be possible to suggest elements of a flexible context-sensitive juristic idea of law that can cross frontiers60 Yet any juristic perspective focused on such an idea needs to be rooted in narrower professional (lawyersrsquo legislatorsrsquo judgesrsquo etc) and popular (citizensrsquo) perspectives on law

The broader the juristrsquos vision the more universal the knowledge required to support it and so the more comprehensive the reach of jurisprudence should be Its theoretical bricolage its package of insights selected for their potential juris-tic relevance can be unified only by the particular vision of the juristic role that the package supports But the ideal of wide-ranging intellectual curiosity which may be jurisprudencersquos most attractive feature should surely be encouraged and extended By that means it might help to promote a more universalisticmdashor at least more broadly comparativemdashunderstanding of the juristic role without denying its grounding in specific socio-legal contexts

The aim of this article has been to some extent to celebrate a general idea of bricolage jurisprudence Yet this tradition of jurisprudence has value only if its jus-tifications and purposes are fully elaborated This is rarely done in the pedagogic contexts where bricolage jurisprudence finds its main audiences I have argued that jurisprudence is intellectually justified not through validation from the methods and theories of any distinct contemporary academic discipline but by its potential for informing the prudentia of the jurist centred on the craft-skills (and one might hope wisdom) involved in making sense of the complexity of law as ideal practice and experience in its time and place The nature of this juristic enterprise surely needs further clarification and it should be the explicit focus and unifying rationale of pedagogic jurisprudence today

60 Ibid

Jurisprudence42

rary Anglophone legal philosophy tends its furrow unconcerned with the nature of jurisprudence insofar as this could be something different from what legal philoso-phers do2 jurisprudence might be acceptable as the name for a pedagogic package to broaden the minds of undergraduate law students but this would not validate it as a serious field of academic research

This articlersquos purpose is to defend jurisprudence as something more than a pedagogic package and as an enterprise distinct from legal philosophy It argues that however undisciplined (in academic terms) and philosophically inept its lit-erature may often have been it is properly seen as an important body of thought about law that aims at exploring aiding and developing the prudentia of jurists A dictionary search reveals that prudentia can mean acquaintance knowledge sagacity prudence discretion and foresight which will serve as a provisional set of meanings here3 one to attach to an ideal juristic understanding of law On this basis jurisprudence is not an academic field certainly not a modern academic discipline It is at best a patchwork of insights related to the idea (and ideal) of law as a practice of regulation to serve social needs and social values as these are recognised in particular times and places So jurisprudence on this view is an exploratory enterprise aimed at serving an ongoing ever-changing juristic practice It is not aimed at finding ultimate truth about lawrsquos nature or timeless lsquoessentialrsquo or lsquonecessaryrsquo characteristics of the legal

What may be timeless is the task for which jurisprudence seen in this way should provide enlightenment a task of making organised social regulation a valu-able practice rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation as these perennial values are understood in their time and place and as they might be further clarified and reconciled as legal ideals Jurisprudence in this view is aimed at informing those who are enduringly (usually professionally) con-cerned with the well-being of the idea of law as a practice in this sense equipping them with the means of promoting that well-being (itself a matter for interpreta-tion) For the purposes of discussion here such people with such concerns can conveniently be called lsquojuristsrsquo4 and the aim here is to defend jurisprudence as a contemporary enterprise of gathering knowledge to assist them

BRICOLAGE JURISPRUDENCE AND ITS ENEMIES

How could such an idea of jurisprudence be unpacked Lloydrsquos Introduction to Juris-prudence edited through many editions by Michael Freeman has been the textbook

2 Thus the Oxford Handbook of Jurisprudence amp Philosophy of Law (Oxford University Press 2002) treats its subject as legal philosophy and makes no reference to jurisprudence as a field

3 Philosophers have defined the term for particular purposes but the diversity of meanings suggested by these words is important here They usefully imply that jurisprudence cannot be systematically codified as an ethical or other programme but rather promotes or serves a cluster of (not necessarily easily integrated) juristic virtues

4 Cf Roger Cotterrell lsquoThe Role of the Jurist Reflections around Radbruchrsquo (2013) 26 Ratio Juris 510









Jurisprudence44


















Jurisprudence46















Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid









Jurisprudence44


















Jurisprudence46















Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid

Jurisprudence44


















Jurisprudence46















Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid









Jurisprudence46















Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid

Jurisprudence46















Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid









Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid

Jurisprudence48

















Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid











Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid

Jurisprudence50














Jurisprudence52













Jurisprudence54













60 Ibid






Jurisprudence52













Jurisprudence54













60 Ibid

Jurisprudence52













Jurisprudence54













60 Ibid








Jurisprudence54













60 Ibid

Jurisprudence54













60 Ibid





60 Ibid

Documents

Why Jurisprudence Is Not Legal Philosophy