Yearly Archives: 2018

A Story of Jurisprudence and True Philosophy

Mar 7, 2018 Andrew HalpinAdd a Comment

This is a shaggy dog jot. It starts in the conventional way by identifying a recent piece of work that is recommended for the attention of the reader. However, in the course of justifying that recommendation there is a series of diversions to other works, which distracts from any sustained understanding of where exactly the virtue of the piece is to be found. But, like a shaggy dog story which finally reveals its point, there does eventually emerge a point to the recommendation; although, as with the simile, not the point that might have been anticipated.

The work cited is a response by Gerald Postema to critics in a symposium on the volume covering common-law legal philosophy in the twentieth century he has contributed to Springer’s multi-volume Treatise of Legal Philosophy and General Jurisprudence. Within his coverage of that subject matter, Postema cites an article as a resource for unpacking the notion of true philosophy (vera philosophia) which he then utilizes in his own assessment of the achievements of common-law legal philosophy. This article by Donald Kelley in the 1976 Journal of the History of Philosophy,¹ has not, as far as I am aware, received much attention in mainstream Jurisprudence; and I have failed to uncover any real enthusiasm for it within more exclusive, niche jurisprudential concerns. It is, nevertheless, central to our present concerns.

The recent availability of Postema’s volume in a far more affordable paperback version appears to have provoked discussion in the review pages of the core understanding of legal philosophy expounded by Postema in that work. Notably, Kevin Walton has challenged the basis of Postema’s evaluation of the failings of common-law legal philosophy, and has in turn offered his own account of at least a virtuous legal philosophy (if not an account of true philosophy) by which the efforts of legal philosophers can be measured.² Postema has responded to Walton’s criticism (Pp. 611-12), providing us with further thoughts on where the value of legal philosophy is to be found. The disagreement between Postema and Walton turns on how, and the extent to which, legal philosophy has attained the status of a “sociable science”. This alternative depiction of what can be expected to be achieved by Jurisprudence, picked up by Walton, had been amplified in an article by Postema in the 2015 Virginia Law Review, subsequent to the initial publication of his Treatise volume.

There is a close connection in Postema’s writing between a sociable science and vera philosophia, as signalling the appropriate aspiration for Jurisprudence. However described, the aspiration finds fulfillment in engagement with the matters that are core to understanding the human social condition. The debate between Postema and Walton fixes on which of these matters have been taken into account by twentieth-century anglophone legal philosophy, and the level of  emphasis they have received. Their discussion also encompasses the extent to which legal philosophy has been receptive to the contributions of related disciplines in constructing a full and informative picture of sociability.

At this point, the prized accolade of vera philosophia appears attainable in different ways by Jurisprudence. Either by displaying an adequate grasp of its appropriate subject matter (sociability), or through a willingness to borrow from adjoining disciplines their coverage of the subject matter. Seen in  this way, the prize might equally be offered to other disciplines, if only they provide adequate coverage, or form suitable alliances, to deal effectively with their own particular subject matters.

On returning to Kelley’s article, we find a different criterion for awarding the honour of vera philosophia to Jurisprudence. It is not on the basis of effective coverage, but on the provision of singular insight. Postema cites Kelley’s article in advancing a noble philosophical vision for Jurisprudence contrasted with a narrow perspective on law found in blinkered professionalism – taking this to be the perspective of the iurisperiti (those merely learned in the law, or unthinking lawyers) in the denunciation from Budé that Kelley quotes. More than that is found in Kelley’s article in distinguishing the true calling of vera philosophia. Kelley also quotes the words of Louis le Caron (at 270), to make the point that it is also to be distinguished from mere philosophy: “true philosophy is contained in the books of law and not in the useless and inarticulate libraries of philosophers, who in effect are men of great learning but incompetent in public affairs”.

On this account, Jurisprudence is not prized because it displays virtues that any branch of learning might attain. Far from it. Jurisprudence is distinct from general philosophy precisely because it can offer the insights that philosophy misses. The idea emerging from Kelley’s survey of renaissance jurisprudence that Jurisprudence might have a unique perspective to offer between mere practice and mere philosophy is a tantalizing one. It seems plausible to suggest, on the one hand, that some kind of deeper theoretical reflection on the practice of law in regulating the social condition might yield more illumination than unthinking adherence to practice, while suggesting on the other hand that lofty philosophical speculation uninformed by a practical grounding is likely to be limited in the insight it can deliver.

It is one thing to state this as an aspiration for Jurisprudence; it is quite another thing to realize it. Kelley’s article, to be blunt, does not get us beyond reporting an aspiration that culminated in the sixteenth century. There is no evidence for supposing that such an exalted aspiration for Jurisprudence was maintained over succeeding centuries, either in the common-law world or in the civil-law world, as the relevant volumes of the Treatise reveal.³ Instead of providing the clarity of vera philosophia to inform us of the human social condition, Jurisprudence or legal philosophy has fragmented into discordant voices. In his general editorial preface to volumes 9 and 10 of the Treatise, Enrico Pattaro suggests that one can detect different versions of legal philosophy, which he attributes to general philosophers, jurists, and legal philosophers in a narrow sense. More recently, quite bitter rivalries have surfaced between those who see Jurisprudence as, or not (just) as, legal philosophy.

One possible clue to explaining this state of affairs is furnished by another of Donald Kelley’s works. In The Problem of Knowledge and the Concept of Discipline,⁴ Kelley suggests that the real factors shaping the substance of a discipline are to be found in the attitudes of those who exhibit mastery of the discipline and influence “disciples”. Different masters, different disciples, divided disciplines. If that line of argument is accepted, then one might reasonably question the value of noting efforts by its masters of a bygone age to elevate the discipline of Jurisprudence to a status it never actually achieved. And at the same time, question the emphasis given in a jot to an article that notes this very thing.

On further reflection, however, if we do take seriously Kelley’s thesis in his later piece, over the responsibility of the masters of a discipline for shaping the ambition and scope of that discipline, then it might after all be relevant to have our attention drawn to an era when those leading the discipline had a far more ambitious vision for Jurisprudence than it enjoys today.

A New Blackstone

Jan 16, 2018 Brian BixAdd a Comment

William Blackstone was for a long time one of the central figures of both British and American legal thought. His Commentaries on the Laws of England was the text by which many learned law in England. In the United States, Blackstone was equally authoritative, though often read with additional commentary (e.g., by St. George Tucker⁵).

Blackstone’s Commentaries has also played a significant role within legal theory—especially for theorists critical of certain features of the approach to adjudication and judicial reasoning that he espoused and are large parts of Anglo-American tradition. Criticism of Blackstone and his Commentaries is, for example, integral to much of Jeremy Bentham’s writings on law.⁶ Bentham was an opponent of judicial law-making in general and the common law approach in particular. In a small piece called “Truth versus Ashurst” he compared the way that common law judges make law to the way people make laws for their dogs: “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it.”⁷ This attack on the unpredictability and retroactivity of common law decision-making remains important to the present day.

Bentham’s student, John Austin, also made a famous attack on natural law theory, using a passage in the Commentaries as his stalking horse. Blackstone stated that “no human laws are of any validity if contrary to [the law of nature].”⁸ Austin countered that “to say that human laws which conflict with the Divine Law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced by judicial tribunals.”⁹ To Austin, Blackstone’s approach to legal reasoning—and hence many aspects of Anglo-American judicial tradition—conflated what the law is with what it ought to be.

In more recent work, Duncan Kennedy, a critical legal theorist, offered an extended discussion of Blackstone as the occasion for propounding his idea of “the fundamental contradiction.”¹⁰ This is a contradiction he perceives between individual liberty and the community coercion that both safeguards and threatens it. Kennedy used details from the Commentaries to support the conclusion that there is this ongoing “contradiction” in law and government.

As these examples show, Blackstone’s work has provided both a guidepost for a great amount of Anglo-American judicial practice and an object of criticism for a wide array of jurisprudential thinkers concerned with aspects of those traditions.

Until recently, those who wanted to study or cite to Blackstone’s Commentaries usually made use of a very good 1979 University of Chicago Press edition (Stanley N. Katz, ed.), which was a facsimile of the (1765-1769) first edition of the Commentaries. While this version of the Commentaries remains good enough for many purposes, the new Oxford University Press edition has significant advantages for those who want to dive deeper into Blackstone’s text, with particular attention to historical context and how Blackstone varied his text over the various editions up to the ninth (and first posthumous) edition (1783). Each volume of the new OUP Commentaries contains a helpful introduction by a different historical expert in the field (David Lemmings for Book I — Of the Rights of Persons; Simon Stern for Book II — Of the Rights of Things; Thomas P. Gallanis for Book III — Of Private Wrongs; and Ruth Paley for Book IV — Of Public Wrongs), along with the varia, and helpful tables of statutes and cases mentioned in Blackstone’s text, at the end of each volume.

Blackstone’s Commentaries remain a central source for understanding both historical and modern Anglo-American law – as well as many debates in Anglo-American legal philosophy – and Oxford University Press’s new edition of the Commentaries offers a valuable new resource for studying them.