Metaphilosophy of Law

Pawel Banas, Adam Dyrda, Tomasz Gizbert-Studnicki

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509906086
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Methodological and metaphilosophical disputes in the contemporary philosophy of law are very vivid. Basic issues remain controversial. The purpose of the book is to confront approaches of Anglo-Saxon and continental philosophy of law to the following topics: the purpose of legal philosophy, the role of disagreement in legal philosophy, methodology of legal philosophy (conceptual analysis) and normativity of law. We see those areas of legal metaphilosophy as drawing recently more and more attention in the literature. The authors of particular chapters are internationally recognised scholars rooted in various traditions: Anglo-Saxon (Gerald Postema, Dennis Patterson, Kenneth Ehrenberg, Veronica Rodriguez-Blanco); Southern-European (Riccardo Guastini, Manuel Atienza); Nordic (Torben Spaak); German (Ralf Poscher); and Central-European (Jan Wolenski, Tomasz Gizbert-Studnicki, Adam Dyrda). They represent different approaches and different backgrounds. The purpose of the volume is to contribute to the cross-cultural discussions of fundamental issues of philosophy of law.

Part I

Status of Legal Philosophy

1

Jurisprudence, the Sociable Science

GERALD J POSTEMA^*

Jurisprudentia legis communis Angliae est scientia socialis.

Sir Edward Coke

I.Vera Philosophia

At the close of his report of Calvin’s Case, Coke wrote that jurisprudence is a sociable science, ‘sociable, in that it agreeth with the principles and rules of other excellent Sciences, divine and human’.¹ Admittedly, it was the jurisprudence of the English common law that he so fulsomely characterised in this way, but his explanatory gloss invites a less insular application, echoing as it does the instruction opening the Institutes: ‘Iuris prudentia est divinarum atque humanarum rerum notitia’ (‘Learning in the law requires knowledge of things both divine and human’).² Unwittingly, perhaps, Coke appropriated for English common law a Renaissance ideal of jurisprudence, based on a medieval gloss on the opening of the Digest: the idea of jurisprudence as vera philosophia.³ This may well have been an expression of the intellectual imperialism of Renaissance jurists, more academic snobbery than accurate description,⁴ but, as often happens, profession tended to shape performance, or at least it shaped the expectations and ambitions of the practice of Renaissance jurisprudence. Jurisprudence strove to be a sociable science. ‘There is nothing either human or divine’, wrote a Renaissance student of jurisprudence, ‘which the jurist does not treat and which does not pertain to civil science’.⁵

This ambition was as complex as it was bold. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice.⁶ Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. ‘Jurisprudence consists not in speculation but in action’, wrote one fifteenth-century jurist, just after invoking Accursius’s notion of vera philosophia.⁷ Rather than reject philosophical reflection, he and other Renaissance jurists sought to locate it in concrete human life and experience. Law, on this view, embraced most comprehensively and penetrated most profoundly the practical dimensions of daily life, while philosophy was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended and informed by and informing law. Jurisprudence, vera philosophia, was neither serene speculation nor pure prudence, but the point at which the theoretical and the practical intersected. Neither subordinating practice to theory nor theory to practice, jurisprudence, at its ‘sociable’ best, sought to integrate them.

Such, at least, seems to have been the Renaissance ideal, the ambition. However, if humanist critics are to be believed, performance often fell short of profession. Guillaume Budé, for example, complained that, if we understand law to be ‘the art of goodness and fairness’, as Ulpian taught,⁸ then it must be the job of the jurist ‘to philosophize on this point’.⁹ Yet, judged by this standard, ‘the study of law has degenerated from its original state. Today there are no longer jurisconsults, or philosophers’, Budé wrote, ‘but only lawyers (iurisperiti)’.¹⁰ A student of twentieth-century English law made the same observation in response to Coke’s praise of the common law. ‘[M]odern Common Law has ceased to be “sociable”’, he wrote. ‘It is impatient of other kinds and systems of law, and does not eagerly claim kinship with moral science or natural reason’.¹¹

This complaint indicts with even greater justice the dominant practice of jurisprudence in the common law world since the late nineteenth century. Analytic jurisprudence began as self-consciously, even militantly, ‘unsociable’, and its matured and much sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. Legal philosophers joined the iurisperiti in the jurisprudential ranks, but they have little to say to each other. As one who has long participated in this enterprise, and recognises its remarkable richness, I nevertheless have become increasingly aware of its equally remarkable rootlessness. It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. I hope to expose for our critical attention not an explicit methodological doctrine, but rather a certain widespread but not always or entirely self-conscious mentality. Yet, although I will offer critical remarks about contemporary Anglo-American legal philosophy, my aim is not critical but constructive. To this end, I seek in the next few pages to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace or at least to entertain of the ambition of jurisprudence as vera philosophia.

II.Policing the Borders of Jurisprudence

It is widely believed that HLA Hart wrought a profound transformation of jurisprudence, at least the jurisprudence practised in the English-speaking world. He brought a moribund activity of dubious intellectual and pedagogical value and blinkered vision, it is thought, into the brilliant light of sophisticated but sober contemporary philosophy, directing it to providing the conceptual resources for a revitalised general, sociologically aware, theory of law. There has been much debate, especially intense in the last decade or two, over the nature and merits of this transformation and the direction it set for analytic legal philosophy, but few dispute its profundity. Yet a careful review of the movement of analytic jurisprudence over the course of the twentieth century yields a somewhat different picture.¹² From this vantage, the changes Hart made were, in some respects, superficial. The more profound transformation, a transformation of the project and ambitions of philosophical jurisprudence, was wrought by Austin, or rather by Austin as understood by Austinians at the end of the nineteenth century. The revitalised and redirected jurisprudence of Hart, and the half century of writing in the Hartian tradition, is heir to, and still largely lives on, this Austinian estate.

Already by the first decade or so of the twentieth century, analytic jurisprudence, practised in Britain and the Commonwealth, had challenged most of the main dogmas of Austin’s theory of law. Curiously, however, these dogmas survived the challenges, not because of their intrinsic appeal or theoretical soundness, but because no serious, systematically articulated and defended competitor took their place as the staple of thought about the nature of law. Several reasons may be offered for this theoretical vacuum, but among them must be counted the enormous power and range of the Austinian understanding of the jurisprudential enterprise. It was not the Austinian conception of law—the sovereign command theory—but the Austinian conception of jurisprudence that dominated thinking about law. The Province of Jurisprudence Determined¹³ did not usher in the positivist doctrine of law, but it did usher in a fundamentally new jurisprudential mentality, new at least to philosophical jurisprudence. The thetic conception of law¹⁴ had been around for a long time before Austin made use of it. One can find it in the work of ‘positivists’ like Marsilio, Hobbes and Bentham, but also in natural law theorists like Suarez, Pufendorf, Kant, and (more controversially) Aquinas, and in self-professed common law theorists like Selden and Hale. All these theorists used the metaphor of command to capture what they took to be salient features of law. Unlike them, Austin used the same conception and metaphor to define the province of jurisprudence. The mentality that Austin introduced, although historically associated with legal positivist understandings of law, is not in any deep way implicated in positivism. Some of the historically most important theories of law with robust positivist elements—those of Hobbes, for example, or Marsiglio or Suarez or Kant—were never tempted by this distinctively Austinian mentality. Most notably Bentham, although he opens his classic work of analytic jurisprudence with a definition of a law as the command of a sovereign, was never tempted by this mentality.¹⁵

The mentality introduced by Austin is signalled by the title of his most famous work. At the opening of Lecture I of Province, Austin writes:

The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. But positive law (or law, simply and strictly so called) is often confounded with objects to which it is related by resemblance, and with objects to which it is related in the way of analogy: with objects which are also signified, properly and improperly, by the large and vague expression law. To obviate the difficulties springing from that confusion, I begin my projected Course with determining the province of jurisprudence, or with distinguishing the matter of jurisprudence from those various related objects: trying to define the subject of which I intend to treat, before I endeavour to analyse its numerous and complicated parts.¹⁶

The aim of Province, as Austin presents it here and as it was understood in analytic jurisprudence from the end of the nineteenth century onwards, was to define or determine, not the boundaries of law, but the boundaries of jurisprudence. With this in mind, he offered his familiar definition of law as command of a sovereign. The component concepts of his definition are elaborated, but the definition is not to any extent defended. Indeed, a reader, even only a little familiar with the history of philosophical reflection on the nature of law, coming to Province for the first time might find Austin’s way of proceeding startling. This definition of law, to all appearances, is simply stipulated. But, seen in light of his stated aim to define the boundaries of the province of jurisprudence, stipulating a definition of law seems less surprising. The aim was not to establish the baselines of an understanding of the nature of law, but rather to isolate a certain domain of practice, or better, a certain set of concepts used in that practice, which would then be the subject matter of (analytical) jurisprudence. According to followers of Austin (those who shared his mentality, that is), his work in Province analysing the concepts of law, command, sanction, sovereignty and the like, which generations of readers have been instructed to take as the core of his jurisprudential theory, was merely prolegomenon to jurisprudence, fixing its presuppositions, defining its subject matter.¹⁷ Jurisprudence on this conception was limited to analysing the core concepts of the professional practice of law—concepts of legal right and duty, possession, ownership, liability, fault, person, thing, status, intention, will, motive, legal sources, legislation, precedent, custom and the like (but not law, state, command, sanction, or the like). The task of jurisprudence was to offer an analysis of these concepts, in their ordinary, daily use, identifying the core elements, excluding the immaterial or accidental ones, and expressing explicitly what lawyers implicitly have always had in mind when they use them.¹⁸

At least since Hart’s Holmes lecture in 1958, the so-called ‘separation [or separability] thesis’ has been widely, if not universally, taken to be one of the defining postulates of legal positivism. But the separation mentality, to which legal positivists have often been sympathetic, but not univ...

Table of contents

• Cover
• Title Page
• Contents
• The Philosophy of Legal Philosophy: An Introduction
• Part I: Status of Legal Philosophy
• Part II: Legal Philosophy and Metaphysics
• Part III: Particular Problems of Legal Philosophy
• Part IV: Theoretical Disagreement in Legal Philosophy
• Index
• Copyright Page