Swipe to navigate through the chapters of this book
It might seem strange to concludean introductory book on jurisprudence with a chapter debating the value of studying jurisprudence. Surely this should have been the first question we debated, not the last? However, the truth is that it is impossible to form a proper view as to the value of studying jurisprudence without some acquaintance with the sort of issues that mainstream writings on jurisprudence tend to focus on. Now that the reader has acquired some familiarity with those issues and writings, we can at last address the issue of whether all the intellectual effort that has been expended on the debates dealt with in the last 10 chapters – and all the intellectual effort that a student would have to expend to come fully to terms with those debates – is actually worth it. The first debate we will look at in this chapter is over whether there is any point in addressing the sort of questions that legal theorists – and in particular legal positivists – tend to focus on. The second debate is about the dark side of jurisprudence – whether studying jurisprudence actually has negative effects. The third debate is on whether we can hope to make any progress towards achieving a final answer on some of the issues debated in this book.
Please log in to get access to this content
Cf. CL, ch. 1 (see list of abbreviations, p. xv), which begins by identifying ‘persistent questions’ that The Concept of Law is designed to answer; LE, the first sentence of which says ‘It matters how judges decide cases’ and follows that up on p. 3 with ‘Since it matters … how judges decide cases, it also matters what they think the law is, and when they disagree about this, it matters what kind of disagreement they are having’; and Shapiro, Legality (Harvard University Press, 2010), the first chapter of which is entitled ‘What is law (and why should we care)?’.
Cf. MacIntyre, ‘Is a science of comparative politics possible?’ in his Against the Self-Images of the Age (University of Notre Dame Press, 1971), 260, comparing trying to come up with a theory of what politics is with trying to come up with a theory of holes.
‘Just in case’ is an incredibly irritating phrase used by philosophers when they really mean to say ‘if and only if’. Of course, ‘just in case’ does not mean ‘if and only if’ but ‘on the off-chance that’.
Coleman, ‘Negative and positive positivism’ (1982) 11 Journal of Legal Studies 139, 143.
Cf. Simpson, Reflections on ‘The Concept of Law’ (Oxford University Press, 2011), 80: ‘In my own long experience as a teacher and to some modest extent a practitioner of law I have never once been asked the question “What is law?”’
See Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford University Press, 2004), 225–27.
Waldron, ‘All we like sheep’ (1999) 12 Canadian Journal of Law and Jurisprudence 169, 186.
Fuller, ‘Positivism and fidelity to law – a reply to Professor Hart’ (1958) 71 Harvard Law Review 630.
Dworkin, ‘Hart’s Postscript and the character of political philosophy’ (2004) 24 Oxford Journal of Legal Studies 1, 24.
Gardner, ‘Legal positivism: 5½ myths’ (2001) 46 American Journal of Jurisprudence 199, 202. At the end of his Hart Lecture on Hart’s Postscript (above, n. 10), Ronald Dworkin tells a funny story about a conversation with his successor as Professor of Jurisprudence at Oxford University, John Gardner: ‘I said that I thought legal philosophy should be interesting. He jumped on me. “Don’t you see?” he replied. “That’s your trouble”’ (36).
See also Dickson, Evaluation and Legal Theory (Hart Publishing, 2001), 134–36.
Green, ‘The concept of law revisited’ (1996) 94 Michigan Law Review 1687, 1716.
Raz, The Morality of Freedom (Oxford University Press, 1986); Kramer, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (Oxford University Press, 2011) and Kramer, Liberalism With Excellence (Oxford University Press, 2017); and NLNR, if one classifies Finnis as a legal positivist.
See Dworkin’s biting remarks about legal positivists in ‘Thirty years on’ (2002) 115 Harvard Law Review 1655, 1678: ‘They make little attempt to connect their philosophy of law either to political philosophy generally or to substantive legal practice, scholarship, or theory. They teach courses limited to “legal philosophy” or analytic jurisprudence in which they distinguish and compare different contemporary versions of positivism, they attend conferences dedicated to those subjects, and they comment on each other’s orthodoxies and heresies in the most minute detail in their own dedicated journals.’
Even in Cambridge, which is hardly a hotbed of legal positivism, one of the few normative questions that was a focus of the jurisprudence course – whether the law should seek to encourage people to lead morally good lives – has now been dropped from the syllabus.
See above, pp. 59–67.
See Finnis, ‘On the incoherence of legal positivism’ (2000) 75 Notre Dame Law Review 1597, 1605: ‘No truth about law is … systematically at stake in contemporary disputes between exclusive and inclusive legal theorists. The central dispute is not worth pursuing.’
Dyzenhaus, ‘Positivism’s stagnant research programme’ (2000) 20 Oxford Journal of Legal Studies 703.
Fuller, The Law in Quest of Itself (Foundation Press, 1940).
LE, 400ff. The concept of the law working itself pure comes from the case of Omychund v Barker (1744) 1 Atk 21, 26 ER 15. Before becoming Lord Mansfield, Sir William Murray was Solicitor-General and argued in Omychund that evidence given by Indian witnesses in an Indian court should be admissible even though the testimony was not preceded by the witnesses swearing an oath on the Bible. The relevant portion of his argument went as follows: ‘Here is a … court erected in Calcutta, by the authority of the crown of England, where Indians are sworn according to the most solemn part of their own religion. All occasions do not arise at once; now a particular species of Indians appears; hereafter another species of Indians may arise; a statute very seldom can take in all cases, therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for this reason superior to an act of parliament.’ (All emphases in the original.) ‘Superior’ here meant superior in the sense of being better able to adapt to changing circumstances.
Kerruish, Jurisprudence as Ideology (Routledge, 1991).
Goldsworthy, ‘Is jurisprudence liberal ideology?’ (1993) 13 Oxford Journal of Legal Studies 548, 560, 570.
For further examples, see above, p. 83, 95. See also Green, ‘The concept of law revisited’ (above, n. 14), 1699–700; Waldron, ‘All we like sheep’ (above, n. 8).
Kerruish’s response to Goldsworthy is ‘Worthy hearts of gold: ideology and intentions’ (1995) 15 Oxford Journal of Legal Studies 141, but she evaded the challenge of dealing with Goldsworthy’s points head-on on the basis that ‘We work within different philosophical traditions, argue from different metaphysical and epistemological assumptions, and deploy different methodological techniques.’ Debate and conversation becomes impossible with someone who adopts this kind of position. See, further, Nussbaum, ‘Sophistry about conventions’ (1985) 17 New Literary History 129.
NLNR, 1; quoted in Kerruish, Jurisprudence as Ideology (above, n. 24), 56.
For a defence of essentialism about human nature, see Nussbaum, ‘Human functioning and social justice: in defence of Aristotelian essentialism’ (1992) 20 Political Theory 202.
See Plato, Republic, 514a–520a.
See Descartes, ‘First meditation: on what can be called into doubt’ in his Meditations on First Philosophy (1641).
See Rousseau, Discourse on the Origins of Inequality Among Men (1754) for the origin of all such views.
See also CL, 42 depicting ‘the step from the pre-legal into the legal world’ as ‘a step forward as important to society as the invention of the wheel’ (emphasis added).
See above, p. 44.
Green, ‘The concept of law revisited’ (above, n. 14), 1698.
Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (Cambridge University Press, 1987).
Putnam, Bowling Alone: The Collapse and Revival of American Community (Simon and Schuster, 2001).
Himmelfarb, The De-Moralization of Society: From Victorian Virtues to Modern Values (Vintage Books, 1994).
Bellah, Habits of the Heart: Individualism and Commitment in American Life, 3rd edn (University of California Press, 2007).
See above, p. 83, 95, 263.
Waldron, ‘All we like sheep’ (above, n. 8), 179.
English law itself admits that the answer to this question is ‘yes’ by subjecting people – fiduciaries – who possess power over other people and are unlikely to be held accountable for the way they exercise that power to special rules, disabling them from exercising those powers for their own benefit and from getting into situations where they are likely to exercise those powers unwisely.
Cf. Endicott, ‘The subsidiarity of law and the obligation to obey’ (2005) 50 American Journal of Jurisprudence 233, 248: ‘law in its historical manifestations through the ages, has always, or generally, been a morally valuable institution’.
From the point of view of training one to think properly, there is some virtue in studying the progress of a debate over some issue in jurisprudence even if that debate does not end with a clear victory for either side, in the same way that there is some virtue in studying a chess match that culminates in a draw. Watching the moves that each side makes, and why, is an education in how to think for yourself in addressing an issue in jurisprudence.
See, for example, Dworkin, ‘Hart’s Postscript and the character of political philosophy’ (above, n. 10), claiming victory over Hart; and, claiming victory for Hart over Dworkin, Leiter, ‘Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence’ (2003) 48 American Journal of Jurisprudence 17, 17–30, and Leiter, ‘The end of empire: Dworkin and jurisprudence in the 21st century’ (2004–05) 36 Rutgers Law Journal 165.
Cf. Max Planck’s remarks that ‘A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it’ and ‘Science advances one funeral at a time’.
See above, p. 59–67.
In his The Authority of Law, 2nd edn (Oxford University Press, 2009), 47, fn. 8, Raz argues that positivists who believe that sometimes the identification of some laws turns on moral arguments ‘have to provide an adequate criterion for separating legal references to morality, which makes its application a case of applying pre-existing rules, from cases of judicial discretion in which the judge, by resorting to moral considerations, is changing the law. I am not aware of any serious attempt to provide such a test’. But it is not clear why the burden is on Raz’s opponents to supply such a criterion: for Raz to establish that his views are correct, he needs to supply such a criterion as well.
Bloom, The Anxiety of Influence: A Theory of Poetry, 2nd edn (Oxford University Press, 1997).
Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (above, n. 6), 330.
LE, ch. 2.
Though this is not, of course, true of all modern-day debates in jurisprudence that go on and on. Sometimes – as with the Kramer–Simmonds debate on the morality of legality (see above, pp. 75–90) – both sides will believe so fervently in the correctness of their position that they cannot allow the perceived errors of the other side to go unreproved.
go back to reference CL, ch. 1. CL, ch. 1.
go back to reference Shapiro, Legality (Harvard University Press, 2010), ch. 1. Shapiro, Legality (Harvard University Press, 2010), ch. 1.
go back to reference Dworkin, ‘Hart’s Postscript and the character of political philosophy’ (2004) 24 Oxford Journal of Legal Studies 1. Dworkin, ‘Hart’s Postscript and the character of political philosophy’ (2004) 24 Oxford Journal of Legal Studies 1.
go back to reference Goldsworthy, ‘Is jurisprudence liberal ideology?’ (1993) 13 Oxford Journal of Legal Studies 548. Goldsworthy, ‘Is jurisprudence liberal ideology?’ (1993) 13 Oxford Journal of Legal Studies 548.
go back to reference Green, ‘The concept of law revisited’ (1996) 94 Michigan Law Review 1687. Green, ‘The concept of law revisited’ (1996) 94 Michigan Law Review 1687.
go back to reference Green, ‘General jurisprudence: a 25th anniversary essay’ (2005) 25 Oxford Journal of Legal Studies 565. Green, ‘General jurisprudence: a 25th anniversary essay’ (2005) 25 Oxford Journal of Legal Studies 565.
go back to reference Waldron, ‘All we like sheep’ (1999) 12 Canadian Journal of Law and Jurisprudence 169. Waldron, ‘All we like sheep’ (1999) 12 Canadian Journal of Law and Jurisprudence 169.
go back to reference Perreau-Saussine, ‘An outsider on the inside: Hart’s limits of jurisprudence’ (2006) 56 University of Toronto Law Journal 371. Perreau-Saussine, ‘An outsider on the inside: Hart’s limits of jurisprudence’ (2006) 56 University of Toronto Law Journal 371.
go back to reference Green, ‘Jurisprudence for foxes’ (2012) 3 Transnational Legal Theory 150. Green, ‘Jurisprudence for foxes’ (2012) 3 Transnational Legal Theory 150.
- The Value of Studying Jurisprudence
Nicholas J McBride
Dr. Sandy Steel
- Macmillan Education UK
- Sequence number
- Chapter number
- Chapter 11