Saturday, May 7, 2011

Here We Go: David Hume and Legal Theory

You have to start somewhere, and David Hume’s 300th birthday, though arbitrary, is not a bad day to start. According to the an op-ed from today’s New York Times Hume is the most important philosopher ever to write in English,” who made contributions to epistemology, political theory, economics, historiography, aesthetics and religion.” But what about legal theory? In the typical story you learn in Anglophone universities, after the dark age of natural law, there came Hobbes who begat Bentham, who begat Austin, who begat Hart, and thus we got to the present. I think there is quite a lot that is wrong about the story. And one is that Hume is missing from it. There are a few exceptions (two of the top of my head are Gerald Postema’s Bentham and the Common Law Tradition, a large part of which is actually dedicated Hume, and Knud Haakonssen’s The Science of a Legislator), but in general he is not discussed by legal theorists. That is unfortunate, because I don’t think anyone would doubt that Hume is far more original, interesting, broad or deep than that minor Victorian figure, John Austin. But even he gets more attention.

(Austin, by the way, might beg to differ with this assessment. He described Hume’s work as “rather acute and ingenious, than coherent and profound: handling detached topics with signal dexterity, but evincing an utter inability to grasp his subject as a whole.”)

In recent years there has been revival in the idea of naturalist(ic) jurisprudence. (The term, to the best of my knowledge, was first used by Edward Robinson in his 1935 book, Law and the Lawyers, but was made popular in recent years by Brian Leiter). I think this is a welcome change to counter the strong anti-naturalistic trends that have dominated English-speaking jurisprudence in the last fifty years. Hume, together with Hobbes and Bentham, should be among the heroes of the movement.

Hume, is of course, more famous for a lot more. I will only briefly his views on religion. His posthumously published Dialogues Concerning Natural Religion are valuable, still read and discussed (as is his essay on miracles). But perhaps the best short taste of his views on religion comes not directly from him, but from James Boswell. Boswell met David Hume less than two months before he died in 1776. Boswell was surprised to find Hume in good spirits, and even more surprised to hear him firm in his skepticism about the immorality of the soul after death and his complete rejection of religion. He was, in fact, more than surprised. He was alarmed to report that Hume “said flatly that the morality of every religion was bad, and, I really thought, was not jocular when he said that when he heard a man was religious, he concluded he was a rascal, though he had known some instances of very good men being religious.” The whole text is short and very much worth reading. A brief dramatization is available here.

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