Thursday, October 29, 2015

Jurisprudence—Stop that Right Now!?

Another thought in relation to Les Green’s comment on my paper. He entitles his post—presumably summarizing my view—as “Jurisprudence—Stop that Right Now!” This is more-or-less the opposite of what I was saying. After all, even the few pages of the paper he did discuss, I talk about “reviving” jurisprudence, not exactly the words you’d read from someone suggesting that we should stop that right now. It is tempting to say that the headline is a good illustration of the point I was trying to make: that in certain circles the following two equations are held to be true: jurisprudence=legal philosophy, and that legal philosophy=the a priori search for the nature of law.

Only if one accepts both equations, then the message of my paper is that we should stop jurisprudence. But I reject both. In fact, in my paper I asked: “Why should we think that this is what jurisprudence must be?” If jurisprudence is understood as, roughly, discussions on law in general, then my point was not that such an inquiry should end, but that such an inquiry should continue but in a rather different manner from the way it has been going on for the last several decades. It should seek to involve economics, psychology, political science, comparative law, sociology, alongside with philosophy. If one thinks of jurisprudence as the inquiry about “law in general,” then it is an assumption, not argument, that a priori philosophy would play any role in it, let alone a dominant one.

The view that a priori conceptual inquiries have much to contribute to learning about law in general is particularly odd coming from people who claim that “law is a cultural product par excellence” (Marmor), that it is a “social construction” or a “human artefact” (Green). Just consider other cultural products and social constructions—fashion, money, football. What role does a priori philosophy play in explaining any of them? What philosophers occupy themselves in finding the necessary conditions for something to count as a dress or a shirt? Who thinks that before sociologists can say anything significant about fashion, money, or football, they need to turn to a philosopher who will tell them what those things are?

Some legal philosophers have argued that the declining interest in legal philosophy among legal academics is due to a misunderstanding of what philosophy is all about. Those who think that philosophy should have some kind of practical aim are nothing but philistines. (Philistines may console themselves that this puts them in the company of Hobbes and Bentham.) But the striking thing about contemporary legal philosophy is not that it is out of place with what the rest of legal academia, it is that it is out of place with what the rest of the philosophical world, the one to which they see themselves as part of. It was already in 1979 that Brian Barry wrote sarcastically on this style of philosophizing, “I cannot remember when I last read a discussion about the criteria for a good cactus or an extra-fancy apple.” No wonder legal philosophy is marginal not only among legal academics, but also among analytic philosophers.

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