Law in Theory and History

New Essays on a Neglected Dialogue

Maksymilian Del Mar, Michael Lobban, Maksymilian Del Mar, Michael Lobban

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509903870
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings and demand revisions. On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes. The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas.

Part I

Introducing the Dialogue Between Legal Theory and Legal History

1

Legal Theory and Legal History: Prospects for Dialogue

MICHAEL LOBBAN^*

There are very many theoretical questions which may be asked of law. Law can be studied as an instrument of power, as a vehicle of economic opportunity, or as a tool of oppression. It can be studied as a means of setting rules to guide conduct, or as a method of resolving disputes. It can be studied as a structure of empowerment, or as a coercive mechanism of social discipline. Given these multiple ways in which we may think of law, it seems odd at first glance to suggest that one might study law theoretically without drawing on history, or to hold that theory and history have been ships passing each other in the night, with barely a light to signal each other’s presence. Is it not self-evident that anyone interested in sociological questions about law, or economic questions, or questions about the interaction of law and society in general, cannot do it in ignorance of history, even if their main concerns are with the present? Is it not obvious that the theorist who wishes to understand how any particular law or legal system came about, how it operates, what effect it has, will need to look empirically, and so will need to engage with history? At the same time, is it not clear that what distinguishes historians from antiquarians is that they seek explanations, and patterns of change, which requires them to think theoretically? The very discipline of legal history has been shaped by much theoretical reflection on the methodology of the subject, and by theoretical influences from other disciplines.¹ Does this not prove that history and theory are in a constant dialogue?

If one focuses on theorists who are interested in what law does, then it does seem evident that history and theory have long been bedfellows. By contrast, if one turns to theorists interested in what law is, there has been rather less dialogue. The attitude which prevails among many legal philosophers is that perhaps most clearly expressed by Hans Kelsen. In his view, the ‘jurist, as the theoretical exponent of the law’ and the sociologist or historian (who consider ‘the causes of the coming into existence of the law in general or of a particular legal order’) deal with ‘completely different problems’. For such thinkers, the juristic enterprise is also an essential preliminary: as Kelsen put it, ‘[t]he sociology of law cannot draw a line between its subject—law—and the other social phenomena; it cannot define its special object as distinct from the object of general sociology—society—without in so doing presupposing the concept of law as defined by normative jurisprudence.’² According to this view, the jurist is engaged in the philosophical task of clarifying concepts abstracted from all context which the sociologist, comparatist, anthropologist or historian can then use in their distinct work.

If we focus on jurisprudence as the theoretical study of the nature of law—what law is—then this view of the subject does pose a major challenge for those interested in a dialogue. Insofar as much of jurisprudence, as taught in university law schools, omits historical perspectives, it is a challenge worth taking up, and it is one taken up by the chapters collected in this volume. In what follows in this introduction, we will therefore concentrate on those theories that discuss what law is, rather than what law does, and ask how far there can be a fruitful dialogue between this arena of legal theory and legal history.

I

Legal philosophers who confine themselves to the analytical discussion of legal concepts are sometimes criticised for defining the ‘province of jurisprudence’ too narrowly, making it entirely analytical by excluding questions of moral, political and social theory, as if they had nothing to do with the object in hand. Furthermore, it is sometimes argued that this very move is a modern turn, taken by jurists like John Austin, who departed from the more holistic philosophies of Thomas Hobbes and Jeremy Bentham.³ By narrowing the province of jurisprudence—and by implication suggesting that it is only formal, analytical questions about the nature of law, rights, duties and so on, which should be of interest to the lawyer—they have been accused of confining the field much too narrowly.⁴ In answering this criticism, analytical jurists can say perfectly convincingly that they are not seeking to say everything that can theoretically be said about law: they are simply trying to clear the ground for further study by helping us understand what we mean by certain key concepts, whose meaning we need to be clear on before we can go on to ask other kinds of theoretical questions. Thus, one cannot properly understand the question of the impact of law on society unless we first have an idea of what we mean by ‘law’;⁵ we cannot understand the relationship between law and morality unless we have some kind of idea of what distinguishes them as concepts. Analytical jurists can therefore finesse the criticism that they are jurisprudential imperialists by the modest retort that they have no gripe about others asking their own theoretical questions. As Kelsen put it, ‘[l]ike any science, the science of law must first of all define its object by differentiating it from other similar objects, in answering the question: what is the law as object of a particular science’.⁶

Analytical jurisprudence therefore seeks (in Kelsen’s words) ‘to discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples’.⁷ By elucidating the meaning of ‘law’ and other legal concepts, analytical jurisprudence aims to provide the conceptual tools for making sense of the data of experience. According to its defenders, one needs to have categories and classifications into which to place data in order to make sense of it. What makes this a philosophical question is that it is not dependent on empirical observation or context. One cannot simply use the categories and classifications made by the people under study. To begin with, the people who are being studied may not articulate concepts which explain their behaviour: they may be speaking ‘law’ (as we understand it) without knowing it. Furthermore, even if they do articulate concepts in their own language, these will need to be translated into a conceptual language which the observer can understand. All this suggests that without a clear toolbox of concepts to begin with, the scholar cannot know what she is looking for, and cannot understand what she finds. To make sense of experience, it is argued, we need concepts or categories which are not dependent on experience.

Philosophical reflection has certainly generated useful insights, as one philosopher engaging with the ideas of another has refined definitions. Bentham and Austin’s insistence against the natural lawyers that the positive law enforced by a sovereign ruler (law ‘as it is’) is a distinct system from the rules of morality (law as it ‘ought to be’), and that the province of the expositor is not the same as that of the censor helped clarify the thinking of nineteenth century jurists. Equally, the criticisms made by Kelsen and Hart of Austin’s notion of law as the command of a sovereign habitually obeyed by the bulk of the people were seen to reveal flaws in the theory, by showing that a conception of law as command explained neither the (continuing) normativity of a law nor the existence of power-conferring rules: the theory needed to be modified to account for factors unexplained by its original formulation. As philosophers reflect on the flaws in preceding definitions of law, they elaborate a more nuanced view, which is intended better to capture what is understood by the concept of ‘law’. Nor can it be denied that the theories elaborated by modern analytical jurists—Kelsen’s and Hart’s views of law as a system of norms or rules, united in a hierarchy validated by a Grundnorm or a rule of recognition—are conceptually useful in helping us to identify what law is. As Jean–Louis Halpérin and Pierre Brunet argue in their contribution to this volume, a theory such as Kelsen’s can usefully provide ‘neutral (or formal) criteria for identifying legal systems and for distinguishing these systems from other forms of normativity’. They find particular utility in Kelsen’s definition of the state as a legal order, as a tool to help the historian track the evolution of the modern state.

At the same time, there are limits to the analytical empire. As Halpérin and Brunet observe, Kelsen’s legal definition is not (as he thought) ‘a pre–condition of all research about the state, but is one of the possible tools for studying and understanding the state, a tool that legal historians and legal theorists can use with profit’.⁸ We might add that analytical philosophy itself has not given a definitive answer to the core question of what is law: there is a multiplicity of positions. For Kelsen, the notion of coercion is central to the existence of law. For Hart, it is the presence of a set of officials: in his view, ‘law’ is always to be associated with the pronouncements of a special cadre, which has authority in any given society to pronounce it. Where such a cadre exists, one has ‘law’; if there is no such cadre, there is no ‘law’, though there might be other forms of normative conduct. Analytical jurisprudence therefore offers not one but a number of different conceptual tools for the historian to choose from. If she is looking for the history of ‘law’, should she search for Hartian institutions or Kelsenian norms?

Questions may also be asked about the ‘purity’ of these philosophical concepts. Neither Kelsen nor Hart were defining concepts which were entirely abstract, that is, concepts which might have a timeless meaning. Kelsen himself spoke of determining the nature of law itself ‘[f]rom a comparison of all the phenomena which go under the name of law.’⁹ Elsewhere, he explained why coercion was such a central element to his theory:

If the Pure Theory of Law assumes that coercion is an essential element of law, it does so because a careful examination of the social orders termed ‘law’ in the history of mankind shows that these social orders in spite of their great differences present one common element, an element of great importance in social life: they all prescribe coercive acts as sanctions.¹⁰

Thus far, Kelsen was conceding that his theory was not abstract Kantian philosophy, but premised on being an accurate reflection of historical experience. Hart’s philosophy was one which even more explicitly aimed to explain human practices and understandings,¹¹ which suggested that even the most abstract of legal theory would need some empirical foundation. Hence his notorious remark that his work was not simply one of ‘analytical jurisprudence’ but also of ‘descriptive sociology’. His theory was consequently premised on the existence of a certain structure of society, with certain patterns of behaviour, and certain internal attitudes to law. In his view, law only came into being at a particular stage of development—when the system was institutionalised, with the emergence of secondary rules and a set of officials. A customary system without such a set of secondary rules and institutions was for Hart ‘pre-legal’: while this may have been a normative order, it was distinct in kind.

Kelsen’s and Hart’s theories might therefore be regarded as stipulative, rather than descriptive. For Hart, we should only describe as ‘legal’ those systems in which there is some form of officials, for Kelsen, we need a system of coercion. We should use a different name for normative orders which do not have this form. As stipulative definitions, they may be of great use to the historian, in identifying and classifying what is found, to be able to compare and contrast different examples of the same thing. They allow us to identify a particular class of human activity to study. However, these theories only give the most general and provisional of indications even of that activity, and are therefore only a start. They invite us to look at this object of study, and then reflect further on it, in a way which may test and refine their theories. For instance, Hart did not explain in any detail what ‘officials’ were, beyond making it clear that the only necessary officials were those who articulated (or ‘applied’) the rules, rather than those who enforced them.¹² It was clear that he did not think these officials had to be part of a state, for his theory also sought to explain non-state systems of law.¹³ Nor did he explain how it came to pass that they had obtained their authority.¹⁴ All one needed for a legal system to exist (in Hart’s theory) was for officials to have their own customary system in foro. Rather than telling us all we need to know theoretically about law, a theory such as Hart’s only invites us to go further; and since the theory was at least in part based on assumptions about empirical behaviour, it invites the theorist to look more at empirical—including historical—evidence.

Furthermore, if we see Hart’s definition of law as one stipulated for a particular (institutional) understanding of law, rather than being a universally accurate one, then it can consequently be tested by asking how it explains other ideas or behaviours which would commonly be described as law. As Maksymilian Del Mar points out, analytical jurists tend to focus on an unhistoricised single definition (or ‘central case’) of law or a legal system, and thereb...

Table of contents

• Cover
• Title Page
• Preface
• Contents
• Biographies
• Part I: Introducing the Dialogue Between Legal Theory and Legal History
• Part II: Methodology and Historiography
• Part III: The History of Theory
• Part IV: Uses and Limits of Theory in History
• Afterword
• Index
• Copyright Page