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.