General jurisprudence can sometimes be surprisingly parochial for a field that purports to study the nature of law, wherever and whenever law exists. In Truly General Jurisprudence, Felipe Jiménez criticizes this tendency while taking aim at an ostensibly new strand of legal anti-positivism. According to this “New Legal Anti-Positivism” or “NLAP,” law is a part of morality: legal norms are moral norms. Ronald Dworkin perhaps held such a view throughout his career, but he expressed it most clearly in his final book, Justice for Hedgehogs. Likewise, Mark Greenberg argues that “law is the moral impact of the relevant actions of legal institutions.” And Scott Hershovitz proposes that we should stop theorizing the nature of law and focus instead on “how our legal practices affect our moral rights, obligations, privileges, and powers.”
Jiménez’s objection is that NLAP is not truly general in the way that general jurisprudence aspires to be; it is a distinctively American picture of law that fits less well with other legal systems, especially civil law systems. NLAP relies on “observations that are local or parochial … to establish or motivate the plausibility of a general view without considering whether comparable observations from other systems might challenge it.” In this respect, Jiménez continues, NLAP fares worse than “other theories on offer (both positivist and non-positivist).” While this is not a conclusive argument against NLAP, it is “an important consideration—and one that we are likely to miss if we don’t look at jurisprudence from a comparative perspective.”
NLAP is tailormade to explain certain features of American legal culture that highlight the role of moral reasoning in the adjudication of legal disputes. First, the United States is a common law jurisdiction, where courts announce precedential standards to govern future cases, while retaining discretion to distinguish, reformulate, or even overrule those standards. Second, the U.S. Constitution is central to American political discourse, and that centrality “is combined with a system of judicial review that gives significant power to courts.” Third, American lawyers are comfortable with “a substantial degree of uncertainty” regarding what the law demands. Fourth, American legal culture is characterized by “adversarial legalism”—by “the making and implementation of public policy through adversarial litigation and adjudication.”
Though important to American legal culture, these features are not present, or are less present, in many other legal cultures. Civil law judges are “thought of as public servants,” whose careers “have a preestablished hierarchical structure that starts with specialized judicial education,” and they are far less comfortable with judicial creativity. That is not to say that they never exercise discretion, but they do so within a culture that is particularly concerned with disciplining that discretion or rendering it less visible. Moreover, the United States’ fixation on adjudication is not universally shared, and its system of judicial review is an outlier in some respects. In European legal systems, for instance, “the American model of judicial review has generally been rejected, and models that give less power to generalist judges have been adopted.”
According to Jiménez, general jurisprudence should account for these diverse practices. Inferring a theory of law from one legal culture’s idiosyncrasies is like inferring that “pizza in general is a deep-dish, stuffed pie” from the fact that “Chicago pizza is a deep-dish, stuffed pie.” He summarizes his argument this way: “(i) NLAP seems to rely on particular, nonrepresentative aspects of American legal culture, and therefore fits uneasily with important aspects of the culture of some civil law jurisdictions; (ii) this counts significantly against NLAP’s general explanatory power; and (iii) other theories can do a better job at accommodating that variation.” That, he concludes, is a mark against NLAP, in addition to other concerns that have been raised before.
If I were to make a suggestion, it would be to distinguish more clearly between two sorts of generality, which we might call “generality of scope” and “generality of concept.” A theory of law is general in scope if it addresses all law in every legal system. Generality of scope is integral to general jurisprudence: if your theory doesn’t concern law at any place and time, then you’re not doing general jurisprudence. Generality of concept concerns the community whose concept of law is at issue. On one framing, general jurisprudence is an exercise in conceptual analysis, in elucidating our shared understanding of law. Generality of concept gauges the breadth of this “our”—how far the relevant community extends over space and time. A theory of law can be general in scope without being very general in concept: it can be general in the sense of explaining how we conceive of law at any place and time, while also being parochial in the sense of explaining only how we conceive of law and not how other communities do so.
Jiménez seems to focus more on generality of concept: he shows why NLAP may be true of only a relatively parochial concept of law belonging to contemporary American lawyers. Because he takes generality of concept to be a desideratum for a theory of law (a more general theory is, all else equal, better), he concludes that NLAP’s lack of generality is a mark against it. Myself, I am less inclined to view generality of concept as a desideratum and more inclined to see it simply as a neutral choice that theorists must make up front. Accordingly, I might frame the upshot of Jiménez’s comparative analysis a little differently. I might infer that, even if NLAP is a plausible theory of one community’s concept of law, it is a far less plausible theory of other communities’ concepts of law or of any wider community’s (e.g., modern Western society’s) concept.
Jiménez’s article is rich with detail and insight, and it is also general in yet another sense. The article draws from an impressive range of scholarship from both common law and civil law traditions. That kind of engagement across different legal traditions is too often lacking in general jurisprudence, and Jiménez takes a worthwhile step toward bringing these traditions into closer conversation with one another.
