The Great Juristic Bazaar

Jurists' Texts and Lawyers' Stories

William Twining

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351543750
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Some law students find jurisprudence daunting, impersonal, dry and seemingly detached from practical affairs. William Twining believes that many jurists have been fascinating people struggling with questions that are both historically significant and relevant to contemporary issues. This book brings together previously published essays that centre on three related themes: reading Juristic texts, the role of narrative in law, and relations between theory and practice. Building on a pragmatic view of jurisprudence, the author explores different ways of reading and using Juristic texts, to set them in context, to bring them to life and to engage with the reader's own concerns. He applies this approach to throw fresh light on four familiar figures - Holmes, Bentham, Hart and Llewellyn. Challenging limited agendas and parochial points of view, Twining outlines a programme for a broad approach to legal theory in the context of globalization. He satirizes some bad habits in jurisprudence and explores in depth how stories can be seductive vehicles for cheating in legal contexts, yet are essential for making sense of disputes about fact or law.

[1]
Introduction¹

The Bazaar

Four images of the city pervade the literature of urban sociology: bazaar, jungle, organism, and machine. Each in different ways symbolizes ‘organized diversity². Each can apply to legal orders.³ Bazaars and machines are created and controlled by humans; jungles and organisms are natural. An organism is a naturally functioning entity; a machine symbolizes social engineering; a jungle suggests a dense, hostile environment beyond human agents’ control; a bazaar, more user friendly and ordered by an invisible hand, represents pluralism, opportunity, eclecticism, freedom to choose.

The title of this book echoes The Great Railway Bazaar by Paul Theroux. It refers to the vast heritage of legal thought in the world throughout the ages. Here a bazaar represents an anti-reductionist view that catches some of the antimonies that pervade legal thought: law as natural and law as posited or manmade; unplanned evolution versus systematic planning; the free market and social engineering; top-down and bottom-up perspectives; order and anarchy; reason and imagination; unity in diversity. The metaphor of a bazaar also underlines the extent and variety of inherited legal thought and suggests some of the difficulties of reducing it to simple patterns of traditions, schools, movements, isms, and ists. A bazaar may have an underlying order, but its interest lies in diverse particulars.

In fact the focus of this book is deliberately narrow. Part A deals with reading and interpreting juristic texts with particular reference to a few key figures and texts in a single limited tradition, Anglo-American jurisprudence from 1750 to the present day. Part B deals with stories, a universal phenomenon, in relation to one specific context and topic: the role of narrative and background generalizations in relation to argumentation about questions of law and questions of fact in adjudication. The main links between these two themes are interpretation and the tensions between ‘reason’ and ‘imagination’. In short, these essays focus in detail on two quite modest stalls in a huge bazaar. The purpose of this introduction is to set them in context.

When I was invited to contribute to this series, I was faced with a dilemma. The Editor suggested that I should treat the book as a retrospective exhibition of my work. The suggestion had some obvious attractions. However, I had already published three collections of essays, each centred on one general area.⁴ A selection from all of my essays would have been mainly an anthology of anthologies, spread over a wide range of subjects and overlapping substantially with books that are still in print. The alternative was to construct a coherent book that would complement the others by focussing on one or two topics that were not central to them while keeping the amount of overlap to a minimum. I have chosen the second option. Only two of the essays included here are to be found in any of the other three collections. The relation of this book to the others will be indicated below.

The main intended audience for this book is legal theorists and students of jurisprudence and of evidence. Chapters 2–9 can be read as introductions to particular thinkers and, in most cases, as aids to reading particular texts in the original. Each essay stands on its own, so they can be read selectively and in a different sequence. Chapters 1, 4, 5, and 10 develop a pragmatic perspective on legal theory as a heritage and as an activity. The essays in Part B grew out of thinking and teaching about the theory of evidence, but they are relevant to any context in which the role of narrative and argumentation in law is under consideration.

This collection is directly rooted in teaching. I subscribe to the view that there can and should be an intimate reflexive relationship between teaching and research. In courses on jurisprudence I have regularly used nearly all of the texts discussed in detail in Part A. This has been one important way of learning from them and teaching about them. Similarly in teaching evidence, my ideas about stories have been stimulated by using them in counterpoint with analytical approaches to the construction and criticism of arguments about questions of fact.

Part A: A Pragmatic Conception of Jurisprudence

This book is a contribution to jurisprudence. Part A can be read as a series of critical introductions to the work of five particular jurists in the Anglo-American tradition, as an exploration of my views on realism, positivism, and post-modernism, and as reflections on and applications of a particular approach to reading juristic texts.

‘Jurisprudence’, ‘Legal Theory’, and ‘Legal Philosophy’ do not have settled meanings in either the Anglo-American or the Continental European traditions. So it may be useful to restate my conception of jurisprudence and of legal philosophy as one part of it.⁵ My standpoint is generally that of a cosmopolitan English jurist who is concerned with the health of his discipline the purpose of which is advancing and disseminating understanding about law. I treat jurisprudence and legal theory as synonyms and legal philosophy as one part – the most abstract part – of jurisprudence. In this view, jurisprudence is the general or theoretical part of law as a discipline. A theoretical question is no more and no less than a question posed at a relatively high level of generality or abstraction.⁶ The most abstract kinds of questions are conveniently characterized as ‘philosophical’. Some topics, such as theories of justice, questions of metaphysics or of meta-ethics, belong to legal philosophy in this restricted sense. Some questions, such as ‘what constitutes a valid and cogent argument on a question of law in the context of adjudication?’ are in part philosophical, but they also involve elements about which philosophers have no special expertise, such as the nature of adjudication or the distinction between questions of law and questions of fact.

Jurisprudence, in this view, can be viewed as a heritage, as an ideology, and as the activity of theorizing, that is posing, reposing, answering, and arguing about general questions relating to the subject-matters of law as a discipline. The idea of heritage emphasizes continuity. The idea of ideology, in a non-pejorative sense, links one’s beliefs about law to one’s more general beliefs about the world – whether or not they are systematic; and in the Marxist pejorative interpretation of the term, the notion of ideology is a healthy reminder of the close connection between belief, self-interest, prejudice and delusion.

Jurisprudence has a number of jobs or functions to perform to contribute to the health of the discipline of law: constructing whole views or total pictures (the synthesizing or mapping function); elucidating, constructing, and refining concepts; developing normative theories, middle order hypotheses, and general working theories for participants; intellectual history; and critically examining the underlying assumptions of different kinds of discourse of and about law.

The selection of essays in Part A reflects the fact that, when teaching jurisprudence in the United Kingdom and the United States, I have deliberately focused on a few, usually short, texts in the Anglo-American tradition. ‘The Great Juristic Bazaar’ refers to a panoramic view of legal thought in the world as a whole. That is useful for setting a very broad context. But in teaching jurisprudence I have generally followed the precept: ‘Think global, but focus local.’ Concentrating on a few texts from one particular tradition has several advantages. First, it helps one to avoid the pitfalls of sacrificing depth to coverage. Second, it makes it possible to relate the texts to each other and to provide an historical perspective by telling a coherent story about the development of English, and later American, legal thought from about 1750 to the present day. This can supplement the provision of a more specific context for each text. Third, the relevance of a jurisprudence course to the rest of the curriculum is made clearer if it provides a coherent historical and theoretical background to the intellectual milieu in which the students are learning about law.

This is, of course, only one worthwhile approach among many to teaching jurisprudence. It involves some costs, not least in terms of omissions. However, the approach suits the particular learning objectives that I have tried to pursue. Here I have been a loyal disciple of Karl Llewellyn, who argued that the main function of a jurisprudence course should be to help each student relate his or her values, ideas and experience developed in other spheres of activity to their ideas about law.⁷ In this view, such a course should be an exercise in self-definition. By providing an opportunity to integrate one’s beliefs about law with one’s religious, moral, political and other views, a successful course should result in a critical appraisal and development of both. It can lay a foundation, if not for a waltenshaung, at least for critical self-awareness about one’s own ‘legal philosophy’.⁸

Conversational Reading

This personal approach requires a particular method of using and reading juristic texts. For this purpose one reads not solely or even mainly to learn about particular texts or jurists. Instead one reads them dialectically or conversationally to clarify one’s own views on significant general questions relating to law. To adopt an earlier formulation: ‘Mt is the study of issues-via-texts, not intellectual history or the study of texts for their own sake, that provides the main educational justification for paying attention to our intellectual heritage.’⁹

Several of the essays included here develop ideas about method in relation to three main themes: First, in self-conscious reading of juristic texts, it helps to distinguish between genuinely historical reading, as exemplified by J. G. A. Pocock, Quentin Skinner and most contemporary Bentham scholars, and dialectical reading the purpose of which is to clarify one’s own ideas. To ‘converse’ with Bentham or Llewellyn or even Hart in 2001 is inevitably to some extent anachronistic. Terms like ‘contemporary significance’ are seductive, but unclear.¹⁰ For example, if one is reading Bentham’s Anarchical Fallacies in 2001 in order to clarify one’s own views on natural and other non-legal rights today, with whom is one conversing? The historical Bentham situated in a specific context? A modern Benthamite, who is familiar with the literature, debates and legal developments since Bentham’s time? Or is one considering the implications of the text itself for contemporary issues? Each of these perspectives is significantly different and, as we shall see, each is problematic.

A second theme concerns charity in interpretation. Some of these essays can be read as a reaction against bad habits in jurisprudence: for example, caricaturing an author’s or opponent’s views; false generalization through talking inappropriately of ‘schools’, ‘isms’ and ists’ without referring to any specific texts;¹¹ conflating disagreement and difference; and various kinds of false polemics. If the purpose of reading a juristic text is to clarify one’s own position, it is foolish to set up soft targets to attack. Debating with idiots is rarely fruitful. It pays to be fair to the author and ‘true to the text’.

For purposes of conversational reading, one should give due regard to the historical context, the author’s main concerns, what is actually said in the text, what makes the best sense of it, and what might be possible implications and applications of the ideas so interpreted.¹² So, conversational reading does not mean neglecting either history or careful scrutiny of the text, but it does involve choosing an interpretation that the reader thinks is the least vulnerable.

Charitable reading can draw one quite far away from both text and context. If one’s starting-point is some such question as: ‘Am I a utilitarian?’ or ‘Do I believe in natural rights?’, then it is sensible to ask further: ‘What do I think is the least vulnerable version of utilitarianism or natural rights theory?’ For eaxample, the first six or seven chapters of Bentham’s An Introduction to the Principles of Morals and Legislation are notoriously easy to criticize. One may conclude that the best historical interpretation of the text is not the least vulnerable version and that, for some purposes, one should focus on the l...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Acknowledgements
• Series Editor’s Preface
• 1 Introduction
• Part A: Jurists’ Texts
• Part B Lawyers’ Stories
• Index