Is Jurisprudence On Artificial Life Support? (Yes and No)

Brian Tamanaha

In a characteristically thoughtful essay (found on Solum’s LTB), Steven D. Smith observes that in an era when law is flourishing, “jurisprudence—the activity of theorizing or philosophizing about law, about the nature of law—seems close to moribund.” Smith asks: “is jurisprudence a dinosaur that has outlived its time and is being artificially kept alive?”

Smith observes that the classic debate between legal positivism and natural law over the nature of law now seems “quite pointless.” Most natural lawyers today recognize that governments enact laws according to their own criteria of validity (and hence immoral laws can have legal status), and most legal positivists recognize that we are not obligated to obey immoral laws or legal systems. Hardly anyone debates these issues anymore. According to Smith, jurisprudes have thus drifted off to take up questions in ethics, economics, contract law, tort law, constitutional law, and so on, but there is “nothing in this sort of question that is peculiarly within the province of jurisprudence.”

Smith summarized the dire state of contemporary jurisprudence:

Other potentially meaningful questions have a more positivist aspect. How exactly do officials—how do we ourselves—go about determining what the law is, and what it means? Is there in fact some master “rule of recognition,” as H.L.A. Hart famously contended, and if so what is it and how does it work? And how is meaning extracted from legal texts? But once again, it is not clear that “jurisprudence” has any unique contribution to make to these debates. On the retail level, lawyers and judges argue about such questions all the time. On the more wholesale level, Hart famously described his jurisprudence as a kind of “descriptive sociology,” and it would seem that social scientists (sociologists or anthropologists, for example) are better equipped than armchair theorists or philosophers to study how a legal system works in practice—what the operative rules actually are, how officials and subjects determine whether there is a rule, and so forth.

Sensing these limitations, positivist theorists have of late occupied themselves in disputing about “exclusive” as opposed to “inclusive” versions of legal positivism. On good grounds…, most other lawyers and scholars have regarded these debates as of no conceivable relevance to their own pursuits.

In sum, it seems that the classical natural law/legal positivism debate has a jurisprudential character: but that debate has come to look merely semantic. By contrast, evaluative questions and, conversely, empirical or sociological questions about law look substantially and potentially interesting, but they do not seem in any way distinctively “jurisprudential” in character. So, is there any matter or question of importance for jurisprudence to address?

Oddly, although Smith’s reflections about the field seem right, my sense is that jurisprudence is booming, or least undergoing an upsurge. There is a continual flow of new jurisprudence books; jurisprudence panels at conferences are multiplying and well attended; Larry Solum’s phenomenal Legal Theory Blog is one of the most frequently visited legal sites; young scholars appear to be flocking to the field. Admittedly, this is purely impressionistic. But if I am correct about this apparent vitality, how does this square with Smith’s observations?

Smith is correct that legal positivism (or “analytical jurisprudence”) is stagnant. As I describe in a recent essay, legal positivists are, unfortunately, taking the field in an increasingly obscure direction. This work is kept up by a hardy group of devotees (legal philosophers proper), so it is not in immediate danger of extinction, but they are squeezing life out of the subject.

Where Smith goes wrong is in equating the obsolescence of “legal positivism” with the obsolescence of “jurisprudence.” Jurisprudence--“the activity of theorizing…about law” (to quote Smith again)--encompasses much more than legal positivism.

Smith suggests that jurisprudes don’t bring anything special to the discussion, but that seems wrong. Jurisprudes are generalists in two senses: they view law at a high level of generality, and they have a broad background in theory. To state just the core base of knowledge within the field: every jurisprudence scholar must be knowledgeable about natural law (Aquinas and Finnis), legal positivism (Austin, Kelsen, and Hart), historical jurisprudence (Maine and Savigny), sociological approaches to law (Durkheim, Weber, Ehrlich, Parsons, Habermas), the work of Lon Fuller, Ronald Dworkin, and Richard Posner, legal realism, legal process, law and economics, critical legal studies, critical feminist theory, critical race theory, theories about rules and interpretation, constitutional theory, social scientific studies of courts; and, more generally, moral theory, political theory, and a fair amount of history. All of these subjects are covered in Brian Bix’s excellent Jurisprudence: Theory and Context.

Smith is right that jurisprudes don’t have any special qualifications to opine on issues of morality or sociology or any particular legal subject, but their general perspective on law and their corpus of knowledge can nevertheless be informatively applied to all sorts of particular problems. Indeed, the relevance of jurisprudence is recognized by many scholars of separate fields, who make an effort to familiarize themselves with jurisprudence precisely for this reason.

Take legal sociology and legal anthropology. One of the hottest topics in these fields is “legal pluralism,” which focuses on the contemporary multiplicity of legal orders. Notwithstanding its popularity, studies of legal pluralism suffer from a serious conceptual problem: they have struggled to identify what law is. This issue, as Smith notes, is a classic concern of jurisprudence. Hence, it makes sense that jurisprudence scholars can fruitfully engage with legal sociologists and legal anthropologists in working out their conceptual approach to law (as I attempt in “Understanding Legal Pluralism”).

Smith probably wouldn’t disagree strongly with the foregoing observations (although he doubts the value added by jurisprudes), which do not detract from the thrust of his overarching point: to say that jurisprudence can lend insights to other fields does not challenge his assertion that jurisprudence appears to have lost its own distinctive subject matter.

What is distinctive to jurisprudence is its general focus on law. It is the theoretical study of law as such. This core concern is approached within jurisprudence in three basic orientations: law seen in conceptual terms, law seen in moral terms, and law seen as a social phenomenon. A number of scholars range across all three, and scholars in the latter two also engage in conceptual work, but they are distinct orientations and many scholars focus on one or another.

Smith’s account of the ailing state of jurisprudence applies to the first (conceptual) approach. His prescription was to urge a revival and transformation in how we understand law in connection with the second (moral) approach. My suggestion—without disagreeing with Smith’s proposal—is that there is a great deal of vitality and long term potential in the third approach: theorizing about law as a social phenomenon.

That’s my optimistic take on the present and future of jurisprudence, but I should close with a reality check. When I discussed this issue two months ago with a (Canadian) colleague who does jurisprudence, he was less optimistic. He pointed out that the folks doing conceptual stuff—legal philosophers proper—hold positions at the most prestigious institutions in the UK and the US.

He’s right. And any sociologist of knowledge would say that this institutional factor will tend to perpetuate the conceptual approach at the expense of the other two approaches within jurisprudence.

So perhaps Smith is on to something after all.
Posted 12:38 PM by Brian Tamanaha [link]