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‘For those who study jurisprudence today, it is
nothing but a troubling mass of conflicting ideas’: Arnold
The question is an invitation to argue
on the positive features of jurisprudence in reply to Arnold’s dismissive
comment. A discussion of those features is required, together with comment on reasons
for the contemporary (but not unwelcome) conflict of ideas. A skeleton plan
might take the following form:
Introduction – acknowledgement of conflict of
ideas in
jurisprudence – positive features of a study of
the subject –
why criticisms have arisen – conclusion on the
role
jurisprudence has to play.
It is necessary, initially, to comment
briefly on Arnold’s statement by noting what seems to be a highly
subjective and not uncommon reaction to the undoubted ferment of
opinions, principles and ideologies characterizing contemporary jurisprudence.
It may be that the emergence of a jurisprudential tradition of
questioning everything, of accepting no ‘self-evident’ principles, of
‘debunking’ ideas which have held sway for decades, and ‘deconstructing’
hallowed theories, creates an impression of a nihilism triumphant.
Arnold’s use of pejorative terms, such as ‘troubling’, ‘conflicting’,
may indicate a lack of awareness of the value of a continuous probing of
‘received knowledge’. So it is in other contemporary disciplines:
consider physics (in which the recent appearance of ‘string theory’ demands
a rethinking of traditional concepts), economics (in which not only
traditional theories but the very reasoning processes that produced them
are under attack) and linguistics (in which the works of the ‘founding
fathers’, such as Chomsky, are under intensive criticism). And so it is
in jurisprudence where, for example, the American Critical Legal Studies
movement is engaged in a radical reappraisal of the objectives and methodology
of legal studies, and the ‘Law-Economics’ movement perceives some
aspects of economic theory as of direct relevance to jurisprudential
analysis. The continuous flux in the evolution and enunciation of legal
theories must, by its nature, give rise to conflict, which observers,
such as Arnold, find ‘troubling’. The alternative to a conflict of ideas
can be a lack of vitality or a sterility which vitiates intellectual
progress in jurisprudence.
One must be aware, however, that a study
of jurisprudence is not considered an essential component of the education and training
programs of large numbers of lawyers. Concentration by some jurists on highly
abstract theorising, to the exclusion of the severely practical concerns of the
law, may have contributed to suspicion of the subject and a rejection of its
pretensions. Posner’s condemnation of much recent jurisprudence as ‘much too
solemn and self-important’ and of its votaries as writing ‘too marmoreal, hieratic,
and censorious a prose’ is worthy of note.
Much of the true value of jurisprudence resides elsewhere than in the
day-to-day practical applications of the law. It is claimed that its study
provides a discipline of thought which seeks not to ignore the realities of
legal practice, but rather to give added dimension to an understanding of those
realities. Jurisprudence offers an overall view of the law, a unified and
systematic picture, in which the nature of legal institutions and theories
becomes more comprehensible. Austin viewed jurisprudence as providing a ‘map’
of the law which presents it as ‘a system or organic whole’.
Some legal scholars and students have found a major attraction of
jurisprudence to be its intrinsic interest, which emerges from the importance of
the perennial questions with which it deals. ‘What are human rights?’, ‘Are
there any absolute values in the law?’, ‘What is justice?’ These problems
exemplify matters which have been raised over the centuries by philosophers and
jurists. Not only the content of legislation and the administration of legal
institutions, but the basis of society itself, have been affected by attempts
to answer questions of this nature. They are of abiding human interest.
The intellectual discipline required for a study of this area of thought
must be of a high order. Intensive, systematic analysis, the ability to
exercise one’s critical faculties and to engage in a continuous questioning of
one’s own basic assumptions – all can be heightened by a study of jurisprudence.
The intellectual skills required to see into the essence of current arguments
which turn, for example, on ‘the right to silence’, ‘the value of the jury’,
‘the presumption of innocence’, can be sharpened by a consideration of legal theorising.
The study of jurisprudence should enlarge one’s perception of the
patterns of fact and thought from which today’s legal structures have emerged.
Specifically, awareness of the evolution of legal thought provides a key to an
understanding of change as a basic phenomenon of the law. It is the
continuous shifting of views and the transformation of social institutions
which tend to be reflected in jurisprudence – and which give rise to the deep conflicts
which trouble many observers, such as Arnold. The ability to perceive a process
of change beneath the apparently static processes of the law can be intensified
by jurisprudential analysis. It is of interest to note the recognition of
change which emerged in the decision of the House of Lords in Page v Smith
(1995) and in which could be discerned a
modification of views concerning nervous shock and tort – an area in which
there has been much jurisprudential speculation and debate. The War Crimes Act
1991 was preceded by wide-ranging debates which turned on important aspects of
legal theory, involving changing social attitudes towards crime, punishment,
and retribution. A shift of emphasis in the role of foreseeability and intent
in assault, which has formed the basis of much recent jurisprudential debate, was
evident in the decision of the House of Lords in R v Savage (1991).
Perception of the law as an aspect of a changing social environment and
attitudes characterises much contemporary juristic thinking, particularly
evident in cases involving ‘the right to life’: see, for example, the decision
of the Court of Appeal in Re A (Children) (2000), in which the
court was asked to pronounce on the lawfulness of the surgical separation of
conjoined twins.
Additionally, awareness of change and its reflection in legal theory may
enable jurists to note, and perhaps warn against, the invisible,
unacknowledged, yet extremely potent influence of ‘defunct scribblers’ who
continue to affect the thoughts and the activities of those ‘practical persons’
who have ‘no time for theorising’. Jurists and philosophers have pointed out
the significance of the paradox that those who affect to reject theory are,
effectively, embracing it. The statement, ‘I don’t need any legal theory to
tell me that violence can be met effectively only by a law which sanctions
counter-violence’, is, in fact, the expression of a basic, complex theory. The
belief, ‘You haven’t to be a theoretician to know that the law has no place in
family relationships’ implies acceptance, consciously or unconsciously, of a
profound analysis of functions of law. A study of the growth and social context
of legal theory makes clear the relationship of theory and practice, the one
modifying the other.
The very wide range of contemporary jurisprudence has enlarged its
relevance and interest. The days when legal theory was equated with an implied
rejection of the significance of ‘problems of the real world’ have gone. The
figure of the jurist as a recluse, uninterested in law in action, is now seen
as mere caricature. Modern jurists include many who demonstrate a profound
concern for social justice and communal harmony – this is obvious in the
writings of contemporary American legal theoreticians. Dworkin, for example,
argues cogently that the real purpose of the law can be found in the aim of
ensuring that a community acts towards all its members in a ‘coherent,
principled fashion’. Rawls proposes acceptance of a public conception of justice
which must constitute the fundamental character of any well-ordered human
association. Nozick lays stress on the importance of using principles of justice
so as to clarify problems inherent in the holding and transferring of society’s
resources. It may be that a pattern of concern has now emerged in which the responsibilities
of the law, its theoreticians and practitioners, are clearly emphasised, a
pattern which is in clear contrast to the implications of Arnold’s perception
of a ‘chaotic’ jurisprudence.
Where jurists survey the established
socio-legal order, their jurisprudential analysis is often of significance for
students of the law who are a part of that order, and whose perceptions of law
as an instrument of social policy are thereby challenged. One type of perception
relates generally to the relationship between jurisprudence and other
disciplines. Because modern jurisprudence ranges very widely over society and
because it builds some of its theoretical framework on material derived from contact
with other disciplines, students are brought to an awareness of the
interdependence of all social studies and to acceptance of the complex
nature of their own place within the social framework – a positive step which
belies the negative nature of Arnold’s comment.
The role of the lawyer within our society – and it is that to which many
law students aspire – is the subject of continuing analysis by jurists, with
the result that the very rationale of the legal profession in the Western world
has become a matter of debate and can no longer be taken for granted – a
valuable event in itself. Thus, Luban has investigated facets of the role of
the lawyer as ‘partisan advocate’ – a creature of the common law adversarial
system. He believes that the standard view of the role of the lawyer, based on
principles of ‘partnership and non-accountability’ in some respects, may no
longer be acceptable to society save in a highly qualified form. He calls for a
more intensive debate on professional ethics as they relate to the individual
conscience and socio-legal institutions and suggests that the lawyer acts as a
‘broker of the conspiracy at the Centre of the legal system’ – a conspiracy
between citizens and legal institutions, each acting within defined areas so as
to maximize power. Jurisprudential analysis of this nature is thought provoking
and valuable.
Perhaps the most important product of a study of jurisprudence emerges
in an enhanced ability to discern the shape of legal things to come, albeit in
shadowy and inchoate form. The attitudes of today’s legal theoreticians in
relation to matters such as mens rea, causation, the concept of economic
loss in tort, the basis of property rights, and the nature of parental
responsibility, might mark tomorrow’s ideologies and legal structures. A study
of the modes of thought of contemporary jurists contemplating ‘the destination
of the law’ cannot but be advantageous to those who have an interest in the
future of society and the law.
None of these comments should be taken, however, as denying the
existence of trivial, often worthless, theorising in the name of jurisprudence.
Feinberg’s objections to ‘portentous and hoary figures from the past’ being
paraded, each with an odd vocabulary, and a host of dogmatic assertions, to the
confusion of students, are not to be ignored. These objections may add weight to
Arnold’s complaint. But interest in the past for its own sake has little appeal
to lawyers or students. ‘Jurisprudence for its own sake’ is now almost a
meaningless slogan. Jurisprudence has changed its objectives and its
methodology. The search for justice in human relationships, the search for
certainty in the law and the continuous probing of the role of the State in the
recognition, promulgation, and enforcement of human rights are rarely absent from
legal theorising. The result is a challenging of entrenched positions and
narrow certainties, and a questioning of the hitherto unquestionable. This is,
indeed, a sign of ‘conflict’; but it is also a sign of vitality.
When Stone wrote of the science of jurisprudence as ‘the lawyer’s
extraversion ... the light derived from present knowledge in disciplines other
than the law’, he acknowledged the structures of legal theory as being linked
totally with other studies, thus proclaiming the relevance of jurisprudence to
life in general and everyday law in particular.
In that sense, a study of jurisprudence
can be valuable in that it ensures perceptions of the law in the setting of a
comprehensible, changing world. At times, these perceptions will appear, in Arnold’s
words, as ‘a troubling mass of conflicting ideas’, chaotic and often
contradictory. But this is not necessarily a negative or undesirable state of
affairs, for it is in the attempted resolution of apparent contradictions that
the study of jurisprudence can be advanced.
Notes:
Valuable material concerning this question may be found in Freeman’s
edition of Lloyd, Introduction to Jurisprudence, Chapter 1; Dias, Jurisprudence,
Chapter 1; and Posner, The Problems of Jurisprudence. Luban’s Lawyers and
Justice is stimulating; D’Amato’s Jurisprudence, a Descriptive and Normative
Analysis of Law contain introductory chapters of unusual interest. Lord Goff’s
‘The search for principle’, in Proceedings of the British Academy (1983),
contains interesting critical observations concerning jurisprudence.
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