tag:blogger.com,1999:blog-91617619619289322622023-03-20T04:26:44.101-04:00JuristhoughtsAmong other things, a blog on legal theoryDan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.comBlogger28125tag:blogger.com,1999:blog-9161761961928932262.post-27415102731654987112016-10-04T23:33:00.001-04:002016-10-04T23:34:33.039-04:00Is The Concept of Law a Good Book? Part 6: Distortion as the Price of Uniformity<div class="MsoNormal">
Probably Hart’s best-known argument from the opening chapters of his book
is directed at the claim that all laws are commands. It is nowadays often said
that Hart dealt a death blow to command theories of law. For those who think of
jurisprudence as a kind of progressive science of accumulated knowledge, here
was a giant leap forward, a major correction of errors of committed by Bentham,
Austin, and Kelsen. <o:p></o:p></div>
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Except that it wasn’t.<o:p></o:p></div>
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<a href="http://juristhoughts.blogspot.com/2016/10/probably-harts-best-known-argument-from.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com1tag:blogger.com,1999:blog-9161761961928932262.post-1037780557174862992016-10-01T13:19:00.000-04:002016-10-01T13:20:35.013-04:00A Surprising Friend for Jurisprudential Naturalism<span style="font-family: "alegreya"; line-height: 115%;">A
bit of a break from <i>The Concept of Law</i>. (The best is yet to come.) In
the meantime, a couple of paragraphs from Lon Fuller’s, <a href="https://books.google.ca/books?id=IYqaAAAAIAAJ&printsec=frontcover&dq=inauthor:fuller+legal+fictions&hl=en&sa=X&redir_esc=y#v=onepage&q=inauthor%3Afuller%20legal%20fictions&f=false"><i>Legal
Fictions</i></a> (1967). The book is largely a reprint of a three-part article
published in 1930–31. The quote below is from the short preface added in 1967.
In it he anticipated Brian Leiter’s invocation of Quine’s “Two Dogmas of Empiricism” against
conceptual jurisprudence by several decades.</span><br>
<a href="http://juristhoughts.blogspot.com/2016/10/a-surprising-friend-for-jurisprudential.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-32959101389718116532016-09-17T09:45:00.002-04:002016-09-17T09:59:39.218-04:00Is The Concept of Law a Good Book? Part 5: The Originality of Hart's Critique of Austin<div class="MsoNormal">
It’s time to come back to <i>The Concept of Law </i>after a
long hiatus. And after my extended discussion of Hart’s methodological
confusions, it’s time to get to substance. Chapters 2 to 4 of the book are
dedicated to the explication and critique of John Austin and, to a lesser
extent, of Hans Kelsen. It is often said that it was Hart’s arguments in these
chapters that dealt a decisive blow to Austin’s work and more generally
demolished the command theory of law. Let us consider these claims in order.<o:p></o:p></div>
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To give Hart credit for his critique of Austin’s ideas, or
“command theories” more generally, suggests that until Hart came on the scene
Austin was considered something of an established truth. The reality is that <i>not one</i>
of the arguments Hart presented against Austin was novel. In fact, by the time <i>The
Concept of Law</i> was published, the arguments against Austin were more than
half-a-century old. <o:p></o:p></div>
<span style="font-family: "alegreya"; line-height: 115%;"></span><br>
<a href="http://juristhoughts.blogspot.com/2016/09/is-concept-of-law-good-book-part-5_17.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-89659692059694437932016-09-17T09:45:00.000-04:002016-09-17T09:45:08.498-04:00Is The Concept of Law a Good Book? Part 5: The Originality of Hart's Critique of Austin<div class="MsoNormal">
It’s time to come back to <i>The Concept of Law </i>after a
long hiatus. And after my extended discussion of Hart’s methodological
confusions, it’s time to get to substance. Chapters 2 to 4 of the book are
dedicated to the explication and critique of John Austin and, to a lesser
extent, of Hans Kelsen. It is often said that it was Hart’s arguments in these
chapters that dealt a decisive blow to Austin’s work and more generally
demolished the command theory of law. Let us consider these claims in order.<o:p></o:p></div>
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To give Hart credit for his critique of Austin’s ideas, or
“command theories” more generally, suggests that until Hart came on the scene
Austin was considered something of an established truth. The reality is that <i>not one</i>
of the arguments Hart presented against Austin was novel. In fact, by the time <i>The
Concept of Law</i> was published, the arguments against Austin were more than
half-a-century old. <o:p></o:p></div>
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">Hart presented three challenges to Austin’s view
in chapter 3:</span><br />
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">(a)
Laws may impose duties on those who make them. Therefore, the claim that law is
a command issued by someone who is not subject to the command is false.</span><br />
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">(b)
Some laws are power-conferring: contract law or probate empower people to do
certain things, they do not command them to do anything. </span><br />
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">(c)
Customs’ status as law is not the product of any “conscious law-creating act,”
so it is false to think of law’s as limited to intentional commands.</span><br />
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">Here
is the now-forgotten <a href="https://en.wikipedia.org/wiki/William_Jethro_Brown">Jethro Brown</a><span class="MsoHyperlink">,</span> writing in 1906, and summarizing some <i>earlier</i>
criticisms of Austin:</span><br />
<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-gBZ6fvvrj84/V9zB0Mxjw2I/AAAAAAAAADM/dc06MkoXi2cQGrLznrr8jYm3J7YXLbs-ACLcB/s1600/JBrown1.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="465" src="https://1.bp.blogspot.com/-gBZ6fvvrj84/V9zB0Mxjw2I/AAAAAAAAADM/dc06MkoXi2cQGrLznrr8jYm3J7YXLbs-ACLcB/s640/JBrown1.png" width="640" /></a></div>
<div class="separator" style="clear: both; text-align: left;">
<span style="font-family: "alegreya"; line-height: 115%;">Here
is Brown, making the point that the command theory does not fit customary law:</span></div>
<div class="separator" style="clear: both; text-align: center;">
<a href="https://1.bp.blogspot.com/-U_MRN4KKiQg/V9zCAIqf8-I/AAAAAAAAADQ/e9c_ivgnIksY1NYV8V-R7eumKJHfe-GUQCLcB/s1600/JBrown2.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="129" src="https://1.bp.blogspot.com/-U_MRN4KKiQg/V9zCAIqf8-I/AAAAAAAAADQ/e9c_ivgnIksY1NYV8V-R7eumKJHfe-GUQCLcB/s640/JBrown2.png" width="640" /></a></div>
<div class="separator" style="clear: both; text-align: left;">
Brown also considered the idea of empowering laws as
commands to someone else (“a statute empowering Borough Councils to impose a
new rate is also a command to the subjects to pay the rate when called upon to
do so”, “It may be said of [rules that allow people to create a corporation]
that they involve a real imperative, i.e. the command to the judge”). </div>
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<o:p></o:p></div>
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<span style="font-family: "alegreya"; line-height: 115%;">Before
Brown, James Bryce, writing in 1901, explained why Austin’s view of sovereignty
was inadequate for most countries in the world, where the lawmaker is constrained by law:</span></div>
<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-BuncWvrGqQU/V9zCQYtaKII/AAAAAAAAADU/bO9ktYol_iEUqv6_8jqpQnXVxnPFlSrHQCLcB/s1600/JBryce.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="116" src="https://4.bp.blogspot.com/-BuncWvrGqQU/V9zCQYtaKII/AAAAAAAAADU/bO9ktYol_iEUqv6_8jqpQnXVxnPFlSrHQCLcB/s640/JBryce.png" width="640" /></a></div>
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At times, not just the ideas are familiar, even the words used are similar. Here is Hart:<o:p></o:p></div>
<blockquote class="tr_bq">
<span style="font-family: "alegreya"; line-height: 115%;">To
command is characteristically to exercise authority over men, not power to
inflict harm, and though it may be combined with threats of harm a command is
primarily an appeal not to fear but to respect for authority. [CL 20.]</span></blockquote>
And here is Jethro Brown again:<br />
<blockquote class="tr_bq">
<span style="font-family: "alegreya"; line-height: 115%;">The
essence of command consists in the fact that it is imposed by a body which
speaks with authority and can somehow or other punish disobedience, not in the
fact that its being obeyed through fear of a penalty. [Brown, <i>The Austinian
Theory of Law</i>, 343–44.]</span></blockquote>
<span style="font-family: "alegreya"; line-height: 115%;">Not
early enough? Sources too obscure? How about the </span><i style="font-family: Alegreya; line-height: 115%;">Encyclopædia Britannica</i><span style="font-family: "alegreya"; line-height: 115%;">
(9th ed., 1882), </span><a href="https://archive.org/stream/encyclopediabrit14newyrich" style="font-family: Alegreya; line-height: 115%;">volume
14</a><span style="font-family: "alegreya"; line-height: 115%;">, in the entry “Law”:</span><br />
<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-dv5ig9dRTuc/V9zCtx0ostI/AAAAAAAAADY/_7R2z7jZuMwG569vCDgBeS3iFU6a9wpRQCLcB/s1600/EBrit.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="291" src="https://4.bp.blogspot.com/-dv5ig9dRTuc/V9zCtx0ostI/AAAAAAAAADY/_7R2z7jZuMwG569vCDgBeS3iFU6a9wpRQCLcB/s640/EBrit.png" width="640" /></a></div>
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<span style="font-family: "alegreya"; line-height: 115%;">That
Hart knew of these books is not in question. In 1953 he was asked to write a
short survey about jurisprudence in Britain. His essay contains a list of
leading jurisprudential books used in British universities. Here is how the
list begins:</span></div>
<div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-lLM9Srw77mE/V9zC691wiTI/AAAAAAAAADc/UXm55gO8IO0CJyUjblP79vG840mOdKmTACLcB/s1600/HartList.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="141" src="https://4.bp.blogspot.com/-lLM9Srw77mE/V9zC691wiTI/AAAAAAAAADc/UXm55gO8IO0CJyUjblP79vG840mOdKmTACLcB/s400/HartList.png" width="400" /></a></div>
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<span style="font-family: "alegreya"; line-height: 115%;">When
understood in context—when we remember that <i>The Concept of Law</i> was intended as an introductory
text on jurisprudence and was based on lectures delivered to undergraduate law students—the
opening chapters of </span><i style="font-family: Alegreya; line-height: 115%;">The Concept of Law </i><span style="font-family: "alegreya"; line-height: 115%;">are understandable (although citation
to some of these earlier works would have been appropriate). Austin was a
convenient way to start the discussion, and the relative simplicity of his
ideas made it easy to introduce the subject with his work. It is not widely
known today, but even in this respect </span><i style="font-family: Alegreya; line-height: 115%;">The Concept of Law </i><span style="font-family: "alegreya"; line-height: 115%;">is not
original. By the time it was published, opening a course on jurisprudence with
Austin-bashing was itself an established practice. Jolowicz, in his </span><i style="font-family: Alegreya; line-height: 115%;">Lectures on
Jurisprudence </i><span style="font-family: "alegreya"; line-height: 115%;">(published 1963, but based on lectured delivered between 1924
and 1948) said that “Austin’s doctrine forms a very good target—we must set it
up and see it clearly in order to throw bricks at it” </span><span style="font-family: "alegreya"; line-height: 115%;">(Old
habits die hard: </span><a href="https://books.google.ca/books?id=-vqgyrQM1NQC&printsec=frontcover&dq=inauthor:shapiro+legality&hl=en&sa=X&redir_esc=y#v=onepage&q=inauthor%3Ashapiro%20legality&f=false" style="font-family: Alegreya; line-height: 115%;">Shapiro</a><span style="font-family: "alegreya"; line-height: 115%;">
and </span><a href="https://books.google.ca/books?id=iKrEHCsITVkC&printsec=frontcover&dq=inauthor:marmor+philosophy+law&hl=en&sa=X&redir_esc=y#v=onepage&q=inauthor%3Amarmor%20philosophy%20law&f=false" style="font-family: Alegreya; line-height: 115%;">Marmor</a><span style="font-family: "alegreya"; line-height: 115%;">.)</span></div>
<span style="font-family: "alegreya"; line-height: 115%;"><br /></span>
<span style="font-family: "alegreya"; line-height: 115%;">If <i>The
Concept of Law </i>had been treated for what it is, a textbook for students, none
of this would have mattered much. It does matter against the familiar refrain
that before Hart jurisprudence was an amateurish and unsophisticated and that with
<i>The Concept of Law</i> Hart made it “professional.” It’s difficult to see how
this is so when the same arguments Hart made are found in the writings of the
“dilettantes” who preceded him. </span>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-8883146032394226952015-11-24T10:20:00.003-05:002015-11-24T10:20:57.509-05:00Is The Concept of Law a Good Book? Part 4: Hart the Interpretivist<div class="MsoNormal">
In the previous <a href="http://juristhoughts.blogspot.ca/2015/11/is-concept-of-law-good-book-part-2-what.html">two</a>
<a href="http://juristhoughts.blogspot.ca/2015/11/is-concept-of-law-good-book-part-3-bad_23.html">posts</a>
I considered two conflicting readings of Hart. According to the first Hart tried to identify what law is as a purely philosophical inquiry; according to the second, Hart tried to spell out and illuminate prevailing attitudes on what counts as law. Matters get worse, because there is
a third one, and there is textual support for it too. According to this
reading, Hart <i>chose</i> a particular view of the concept of law over others.
This, I suspect, is the one reading that many who consider themselves as Hart’s
followers would most want to resist. It veers very closely to Dworkin’s dreaded
suggestion that Hart was an interpretivist. For others, this is not just not a
misrepresentation of Hart’s view, it is an obviously mistaken view, confusing
of what law is with what one wishes it to be. Julie Dickson called this type of
argument “wishful thinking”: it confuses the “nature of law” (something
apparently as stable as the nature of water) with what we want it to be. I
believe (and <a href="http://link.springer.com/article/10.1007/s10982-010-9081-y#page-1">have
argued</a>) Dickson is wrong to accuse those who hold this view of wishful
thinking, but my concern here is not with whether this view is defensible, but
whether Hart made it. And, on several occasions, he clearly did.<o:p></o:p></div>
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<a href="http://juristhoughts.blogspot.com/2015/11/is-concept-of-law-good-book-part-4-hart.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-1113770028084462762015-11-23T11:59:00.000-05:002015-11-24T10:14:10.950-05:00Is The Concept of Law a Good Book? Part 3: Bad Sociology<div class="MsoNormal">
In the <a href="http://juristhoughts.blogspot.ca/2015/11/is-concept-of-law-good-book-part-2-what.html">previous post</a> I said that there is an ambiguity in
Hart’s underlying project: It is unclear whether he pursued a “philosophical,” pre-sociological project, or was engaged in something closer to armchair sociology. I also said that most contemporary defenders of Hart prefer
the former reading. Despite the popularity of this view among contemporary
legal philosophers, there is relatively little support for it in CL, and it makes
much more sense to read Hart in the second way. There is no way around the fact
that Hart wanted to give a crisp summary of the most important ideas in the
book, he said that his book was (also) “an essay in descriptive sociology.” It is also
undeniable that Hart thought that close analysis of linguistic usage was
central to this enterprise. (This is also denied these days, but the evidence is overwhelming; more on this in the future.) He makes the claim plain in the Preface when he
quotes J.L. Austin on how analysis of linguistic usage explains reality. It is even clearer in the endnotes to the book, when Hart
says, in his own words, that<o:p></o:p></div>
<blockquote class="tr_bq">
there is great need for a discrimination of the
varieties of imperatives by reference to contextual social situations. To ask
in what standard sorts of situation would the use of sentences in the
grammatical imperative mood be normally classed as ‘orders’, ‘pleas’… &c.,
is a method of discovering not merely facts about language, but the
similarities and differences recognized in language between various social
situations and relationships. The appreciation of these is of great importance
for the study of law, morals, and sociology. [CL 280.]</blockquote>
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</div><a href="http://juristhoughts.blogspot.com/2015/11/is-concept-of-law-good-book-part-3-bad_23.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-36106632428589955962015-11-20T10:01:00.001-05:002015-11-20T10:01:40.939-05:00Is The Concept of Law a Good Book? Part 2: What Is the Book about?<div class="MsoNormal">
John Gardner, not exactly a harsh critic of Hart or CL,
wrote that “[Hart] is the metaphysical monocyclist who, as soon as he begins to
wonder how he stays upright, wobbles and risks falling off. His forays into the
investigation of his own philosophical outlook, with the possible exception of
his rejection of a crudely lexicographical approach in his inaugural lecture,
were not notably successful.” Leslie Green, someone else who thinks that we
should continue to read the book has written: “Hart’s methodological
reflections came late in his career and were sketchy and inconclusive.” That’s only half true. Hart’s remarks on methodology were indeed sketchy and inconclusive, but one finds them from early on. Though Hart did not write a methodological paper per se, he made methodological remarks throughout his writings (Hart’s 1953 Inaugural Lecture has a lot to say about method); CL itself has many such remarks, scattered throughout the book.</div>
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It is
tempting to say that if even they say such things, there is no need for me to
pile on, but pile on I will. The main reason is that while these quotes suggest that Hart was doing a good job in explaining law, but was far less assured in explaining what he was doing. I think the problem is more serious. Hart was not clear about what he actually trying to do in the book, and that has resulted in numerous, and conflicting, explanations of law throughout the book.<o:p></o:p></div>
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<a href="http://juristhoughts.blogspot.com/2015/11/is-concept-of-law-good-book-part-2-what.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-76717849983938662612015-11-05T10:22:00.000-05:002015-11-05T10:25:48.555-05:00Is The Concept of Law a Good Book? Part 1: Introduction<div class="MsoNormal">
I plan to begin a series of posts on <i>The Concept of Law</i>
(CL). I believe the book enjoys an inflated reputation, which deserves some
deflating. Though by no means a central theme in my paper, “<a href="http://ssrn.com/abstract=2642461">The Misguided Search for the Nature of
Law</a>” I said in the end that one way for jurisprudence to get better would
be to stop reading CL. This did not go well with Les Green: “Many academic
lawyers, and most legal sociologists, show no signs of having read Hart’s book
at all (or of having understood it if they have).”<o:p></o:p></div>
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Perhaps, but that, of course, would matter if they would
miss out on much if they did. Green thinks they would. I disagree. So here it
is, as clearly as I can (forever guaranteeing my excommunication from respectable
jurisprudential company): <i>The Concept of Law</i> is not a very good book. It
is far more derivative than is often acknowledged, and most of its arguments
are weak. I will get to this later in detail, but some examples of ideas
attributed to Hart but found much earlier in the writings of Karl Llewellyn, see this <a href="http://juristhoughts.blogspot.ca/2011/05/karl-llewellyn-was-there-before.html">earlier
post</a>.<o:p></o:p></div>
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Though it is hard to separate Hart’s book from its
reception, the book and its impact are also responsible for leading jurisprudence astray by
separating it from political philosophy. Hart does not bear all responsibility
for the latter charge: John Austin and Hans Kelsen (and possibly others) have a
hand in that too. But in the English-speaking world, there is no question that CL
has been read by many more people and shaped future debates more than others. And it was Hart,
after all, who chose to model his ideas on Austin and Kelsen, and not on (say) Bentham’s very
different ideas.<o:p></o:p></div>
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<a href="http://juristhoughts.blogspot.com/2015/11/is-concept-of-law-good-book-part-1.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-50367884323585520772015-11-03T17:57:00.001-05:002015-11-03T17:57:34.962-05:00The Neglected Alternative: Interpretivism<div class="MsoNormal">
If, as <a href="http://juristhoughts.blogspot.com/2015/10/the-argument-against-conceptual.html">I suggested</a>, conceptual jurisprudence can neither make sense as an a
priori conceptual inquiry nor as a “descriptive”sociological inquiry, is there anything
left? There may be. To see this, it is helpful to present a version of the sociological
strand of jurisprudence broken down into four separate steps:</div>
<blockquote class="tr_bq">
<b>Step 1:</b> Start with the practice, gather
information about what people think law is, what their attitudes toward law
are, as well as evidence about the practice itself.<br>
<b>Stage 2:</b> Extract certain features from the
practice that are important, central, and so on.<br>
<b>Stage 3:</b> Make those features the foundation
of a “theory” of the practice.<br>
<b>Stage 4:</b> On the basis of the theory developed in stage 3, reinterpret the remaining parts of the practice and dismiss certain things that might be thought to belong
to the practice as not really
belonging to it. </blockquote>
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<a href="http://juristhoughts.blogspot.com/2015/11/the-neglected-alternative-interpretivism.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-2170863418793435432015-10-30T20:11:00.004-04:002015-11-01T16:51:55.651-05:00Conceptual Jurisprudence Isn’t, Says a Former Leading Proponent<span style="font-family: Alegreya; line-height: 115%;">Who
wrote this?</span><br>
<blockquote class="tr_bq">
<span style="font-family: Alegreya; font-size: 11.0pt; line-height: 115%; mso-ansi-language: EN-CA; mso-bidi-font-family: Arial; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">A
more general defect in my early invocation in jurisprudence of linguistic
philosophy was a failure to make clear that understanding, however sophisticated
or profound of the workings of language could only yield significant results
for jurisprudence where difficulties had arisen from a failure to identify the
way in which some particular use of language deviated from some tacitly
accepted paradigm, or where radically different forms of expression were
mistakenly assimilated to some familiar form….The methods of linguistic
philosophy…are not suitable for resolving or clarifying those controversies
which arise, as many of the central problems of legal philosophy do, from the
divergence between partly overlapping concepts reflecting a divergence of basic
point of view or values or background theory, or which arise from conflict or
incompleteness or legal rules. For such cases what is needed is first, the identification
of the latent conflicting points of view which led to the choice or formation
of divergent concepts, and secondly, reasoned argument directed to establishing
the merits of conflicting theories, divergent concepts or rules, or to showing
how these could be made compatible by some suitable restriction of their scope.</span></blockquote>
<span style="font-family: Alegreya; line-height: 115%;">The
opening sentence is a giveaway. This is, of course, Hart reflecting back on his
earlier work in the Introduction to </span><i style="font-family: Alegreya; line-height: 115%;">Essays in Jurisprudence and Philosophy</i><span style="font-family: Alegreya; line-height: 115%;">.
This passage is not as clear as one would hope, but as I read him, it seems
clear that in 1983 Hart thought it was a “defect” of his earlier work that it
did not recognize that many jurisprudential disputes arise as a result of “the
divergence between partly overlapping concepts reflecting a divergence of basic
point of view or values or background theory.” That, not to put a fine point on
it, a central element in Fuller and Dworkin’s critiques of Hart.</span><br>
<br>
<div class="MsoNormal">
</div><a href="http://juristhoughts.blogspot.com/2015/10/conceptual-jurisprudence-isnt-says.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-46962808986728975192015-10-29T16:25:00.000-04:002015-11-01T16:52:03.431-05:00Jurisprudence—Stop that Right Now!?Another thought in relation to Les Green’s <a href="http://ljmgreen.com/2015/08/14/hello-world/">comment</a> 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.<br>
<br>
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.<br>
<br>
<a href="http://juristhoughts.blogspot.com/2015/10/jurisprudencestop-that-right-now.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-13548309236947872282015-10-24T17:58:00.002-04:002015-10-24T17:58:48.897-04:00What Is the Argument Against Conceptual Jurisprudence, Part 4: Bad Sociology (cont.)<div class="MsoNormal">
According to Marmor, “[l]egal instructions are meant to
generate concrete results, providing people with particular reasons for action,
thus aiming to affect our conduct in some specified ways.” That laws are
“meant” to generate concrete results is not a claim about the “nature” of law,
but an empirical claim about the attitudes of certain people about law, or perhaps
(to tighten the comparison with art, discussed in the <a href="http://juristhoughts.blogspot.com/2015/10/what-is-argument-against-conceptual.html">previous post</a>) an
empirical claim about the intentions of those who make them. Either way, Marmor
does not provide any empirical evidence to support it. <o:p></o:p></div>
<div class="MsoNormal">
<br></div>
<div class="MsoNormal">
If not meant as an empirical claim, then it must be
understood as an interpretation of the practice, something like “based on what
laws are created <i>for</i>, they are best understood as meant to generate
concrete results.” These are normative claims, and, as it happens, they are not
universally accepted. Legal scholars argued that there is sometimes value in laws
not always generating concrete results, that there is value in laws that are purposely
vague as they generate <a href="http://www.jstor.org/stable/40648485">political
debate</a>, <a href="http://aler.oxfordjournals.org/content/1/1/276.abstract">deter
conduct</a>, be flexible enough for dealing with changing circumstances, and so
on. <o:p></o:p></div>
<div class="MsoNormal">
<br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/what-is-argument-against-conceptual_24.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-63457305415893357992015-10-23T11:21:00.002-04:002015-11-01T16:52:24.558-05:00What Is the Argument Against Conceptual Jurisprudence, Part 3: Bad Sociology<div class="MsoNormal">
In <a href="http://juristhoughts.blogspot.ca/2015/10/the-argument-against-conceptual_20.html">my previous</a> post I explained why the pre-sociological
branch of jurisprudence (identifying the “category” that is law) is misguided.
But there are also those who think that jurisprudence is a kind of sociological
enterprise. Hart is best understood as belonging to this camp. It is not just
that what he called his book “an essay in descriptive sociology.” It is numerous comments he made throughout
the book that suggest that he saw himself as someone who seeks to clarify the
underpinnings of the views of the “educated people” (<i>Concept of Law</i>, p.
3). There are, as I show in my paper, many others holding this view. Here is one example, from Ken Himma: “Armchair sociology of the sort at which philosophers
excel (usually without realizing that they are doing sociology) is sufficiently
reliable as long as one belongs to the linguistic community under
consideration.”<o:p></o:p></div>
<div class="MsoNormal">
<br></div>
<div class="MsoNormal">
Against this view I advanced two simple but related
arguments. First, that the methods used for gathering the data—specifically, sitting
in one’s armchair—are thoroughly
unreliable; the second, that there is in fact a wide diversity of views among people. And
we know this because even in the tiny sample of the population that comprises
of legal philosophers we see different views on the nature of law. So any “sociological”
account that presents one view about the concept of law is simply inaccurate. Hart,
we know from his biography, was an acute observer. His book may perhaps be
profitably read as a snapshot of the prevailing views of educated elites in
1950s England about law and politics. (More on this, perhaps, later.) But there is no reason to think that these views are universally held.</div>
<div class="MsoNormal">
<br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/what-is-argument-against-conceptual.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-62491848651096638862015-10-20T09:25:00.001-04:002016-09-18T12:01:32.596-04:00The Argument Against Conceptual Jurisprudence, Part 2: The A Priori Version<div class="MsoNormal">
As I don’t just want to repeat what I said in <a href="http://ssrn.com/abstract=2642461">my paper</a>, I present here a somewhat different take on the issues. So here is a
passage from an <a href="http://www.nyulawreview.org/issues/volume-83-number-4/positivism-and-inseparability-law-and-morals">article</a> Les Green published in 2008, which I did not discuss in
my paper:<o:p></o:p></div>
<blockquote class="tr_bq">
Law tells us what we must do, not merely what it
would be advantageous to do, and it requires us to act in the interests of
other individuals or in the public interest generally, except when law itself
permits otherwise. Every legal system contains obligation-imposing norms and
claims legitimate authority to impose them.</blockquote>
<div class="MsoBodyTextIndent">
<o:p></o:p></div>
<div class="MsoBodyTextIndent">
Green draws from this a surprising conclusion: “neither a
regime of ‘stark imperatives’ that simply bosses people around nor a price
system that structures people’s incentives while leaving them free to act as
they please would be a system of law.”</div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br></div>
<div class="MsoNormal">
The claim about the regime that bosses people around is inconsistent with Hart, who said that “In an extreme case the internal
point of view…might be confined to the official world….The society in which
this was so might be deplorably sheeplike; the sheep might end in the
slaughter-house. But there is little reason for thinking that it could not
exist or for denying it the title of a legal system.” This departure from Hart
was probably intentional. After all, the whole point of Green’s paper was to
argue that Hart was wrong to argue that there is no necessary connection
between law and morality.<br>
<br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/the-argument-against-conceptual_20.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com1tag:blogger.com,1999:blog-9161761961928932262.post-20128326439810052152015-10-17T12:33:00.001-04:002015-11-01T16:52:47.215-05:00The Argument Against Conceptual Jurisprudence, Part 1: The Crib Notes VersionI said in an <a href="http://juristhoughts.blogspot.ca/2015/10/misunderstanding-argument.html">earlier post</a> that Les Green completely missed my argument in <a href="http://ssrn.com/abstract=2642461">my paper</a> “The Misguided Search for the Nature of Law.” But what is the argument? One way of finding out is to do what Green did, namely “slog through” all fifty two pages. Some responses I got to the paper suggest that those who bother can make sense of it.<br>
<br>
But, as Bentham said, “the age we live in is a busy age.” (And that was before Facebook.) So in this and a few more posts, I will try again, more briefly.<br>
<br>
First, a visual summary:<br>
<br>
<a href="http://juristhoughts.blogspot.com/2015/10/the-argument-against-conceptual.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-70386447311437113412015-10-15T12:36:00.002-04:002015-11-01T16:53:02.817-05:00More on Analytic Jurisprudence v. Descriptive Sociology<div class="MsoNormal">
In my last post I quoted Green’s claim that there is “no
suggestion [in <i>The Concept of Law</i>] that legal system is a
‘family-resemblance’ concept or anything like it.” Well, not exactly:<o:p></o:p></div>
<blockquote class="tr_bq">
For the notion of ‘family resemblance’: see
Wittgenstein, <i>Philosophical Investigations</i>, i, paras.
66–76….Wittgenstein’s advice (op. cit., para. 66) is particularly relevant to
the analysis of legal and political terms. [<i>Concept of Law</i>, p. 280].</blockquote>
<div class="MsoBodyTextIndent">
<o:p></o:p></div>
<div class="MsoNormal">
One would think that a legal system is a legal or political
term, so the family resemblance idea is one for which Wittgenstein’s idea would
be “particularly relevant.” But even if not in relation to a legal system, Hart clearly thought the idea of family resemblance was useful for explaining the notion of a
rule (<i>Concept</i>, p. 15). If that’s the case, what is the the
reason that what counts as a legal system is fixed in terms of necessary and
sufficient conditions, while other legal and political terms are to be
understood in terms of family resemblance?</div>
<div class="MsoNormal">
<br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/more-on-analytic-jurisprudence-v.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-13585261813374834192015-10-14T09:43:00.001-04:002015-11-01T16:53:10.548-05:00What Is Conceptual Jurisprudence about?<div class="MsoNormal">
<div class="MsoNormal">
Some more thoughts on the misguided search for the nature of
law. One of the themes in <a href="http://ssrn.com/abstract=2642461">my paper</a>, one that I think deserves
making more explicit, is that under the name of “general jurisprudence,” or the
search for the “nature of law,” one finds two quite different, possibly contradictory, endeavors. Like much else in contemporary (Anglophone)
jurisprudence, these seemingly different enterprises can be traced back to <i>The
Concept of Law</i>, and specifically to its famous preface, where Hart claimed
to be doing both “analytical jurisprudence” and “descriptive sociology.” <o:p></o:p></div>
<div class="MsoNormal">
<br></div>
<div class="MsoNormal">
I hope to dedicate later posts to <i>The Concept of Law</i>
and whether it deserves the praise heaped on it. (The answer
for twitter: it doesn’t.) For the time being I want to consider the book’s
legacy. Few nowadays think, as far as I know, that “analytic jurisprudence” and
“descriptive sociology” are perfectly congruent, which is why different
people who see themselves as following in Hart’s footsteps end up picking sides. John Gardner is someone who favors the analytic jurisprudence
interpretation, Ken Himma adopts the descriptive sociology interpretation. More
interestingly, many scholars seem to shift between the two interpretations.</div>
<div class="MsoNormal">
<br>
</div></div><a href="http://juristhoughts.blogspot.com/2015/10/what-is-conceptual-jurisprudence-about.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-70990438785722681042015-10-13T09:59:00.000-04:002015-11-01T16:53:19.715-05:00Why So Long?<div class="MsoNormal">
<span style="font-family: inherit;"><a href="http://ssrn.com/abstract=2642461">My paper</a>,
“The Misguided Search for the Nature of Law” is long. Les Green complained it
was difficult to “slog through” it, and apparently lost his bearings in it.
Only in the final three pages the mist somewhat cleared and he saw something he
could respond to. Perhaps Green thought that in those pages I was summarizing
what came before. I wasn’t. That may be a quirk of mine, but I often prefer to
end papers with a suggestion on where one should go forward instead of simply
giving a shorter version of what was said before. The actual arguments are not there.
<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;"><br></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;">But why so long? Against the familiar practice among legal
philosophers, the paper included many footnotes, and even many quotations. This
was intentional. It is a common accusation among analytic legal philosophers to
blame others of misrepresenting their views. (Hey, I just <a href="http://juristhoughts.blogspot.ca/2015/10/misunderstanding-argument.html">did</a> that too!) It is also not unheard of to find one legal
theorist attributing views to another without bothering to cite or quote them, in the process getting their</span><span style="font-family: inherit;"> views wrong. The
worst victims (no, not culprits!) of these practices are Lon Fuller and Ronald
Dworkin.</span></div>
<div class="MsoNormal">
<span style="font-family: inherit;"></span><br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/why-so-long.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-2169151730063603452015-10-12T14:59:00.000-04:002015-10-18T21:55:17.697-04:00Misunderstanding the Argument<div class="MsoNormal">
<span style="font-family: inherit;">A bit of history: I posted to SSRN a paper entitled “<a href="http://ssrn.com/abstract=2642461">The Misguided Search for the Nature of
Law</a>.” Les Green dedicated the inaugural <a href="http://ljmgreen.com/2015/08/14/hello-world/">post</a> of his blog to it. He didn’t like it. That’s okay (and not exactly unexpected). Unfortunately, he did
not address any of the actual arguments in it.<o:p></o:p></span><br>
<span style="font-family: inherit;"><br></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;">To the extent that he does try to address my paper, he says
this:<o:p></o:p></span><br>
<blockquote class="tr_bq" style="line-height: 19.2pt; margin-bottom: 19.2pt; margin-left: 0cm; margin-right: 0cm; margin-top: 0cm; vertical-align: baseline;">
<blockquote class="tr_bq">
<span style="font-family: inherit;">He seems to flirt with the idea that there is a sociological
jurisprudence that is not only a sociology of law, but a sociology of the
nature of law (to the extent that law has a nature). In any event, we are
all to stop ‘conceptual analysis’. What we are to start is not clear,
though it seems to have something to do with measuring and counting–but without
any preliminary worries about what counts as what.</span></blockquote>
<blockquote>
<span style="font-family: inherit;">The best defense of this
proposal would simply produce the goods.</span></blockquote>
</blockquote>
</div>
<div class="MsoNormal">
<span style="font-family: inherit;">This is a misunderstanding of my argument. <o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;"><br>
</span><br>
</div><a href="http://juristhoughts.blogspot.com/2015/10/misunderstanding-argument.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-62626454996265338022015-10-12T12:42:00.000-04:002015-10-12T13:52:36.036-04:00From whose bourn no traveller returns?<span style="font-family: inherit; font-size: 11.0pt; line-height: 115%; mso-ansi-language: EN-CA; mso-bidi-font-family: Arial; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">This
blog has been silent—dead really—for a very long time. Reviving it has been on
my mind for a long time, but somehow I didn’t do it. It took a <a href="http://ljmgreen.com/2015/08/14/hello-world/">blog post</a> from
Les Green’s new blog, directed at a <a href="http://ssrn.com/abstract=2642461">paper</a>
I recently uploaded to SSRN (although not really addressing my arguments), to
give this blog the jolt needed to bring it back to life. So in the next few
days, or weeks, I hope to post some thoughts, incidental to my paper, to Les
Green’s response, and to jurisprudence more generally.</span>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com2tag:blogger.com,1999:blog-9161761961928932262.post-18432716977006723652011-05-16T11:55:00.000-04:002011-05-16T11:55:59.346-04:00Say it in verse<blockquote>“[I]n antient time, before letters were in common use, the Lawes were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily reteine them in memory.” (Thomas Hobbes, <a href="http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-e.html#CHAPTERXXVI"><i>Leviathan</i>, ch. 26</a>.) </blockquote><div class="MsoNormal"><o:p></o:p></div><div class="MsoNormal">Today, we are told, the law needs to deal with the problem of <a href="http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html">forgetting</a>. There is still a time, though, that lawyers need to remember: the exam. And so lawyers-to-be have always tried to come up with ways of making sure they don’t forget. So they use <a href="http://davislegal.net/?cat=7">mnemonics</a> or nutshell summaries to help them get past the exam and then forget it all. <o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">Or verse. Eighteenth century English lawyers who were supposed to master the cases in Edward Coke’s reports have come up with a method: a two-line verse summary of all the cases in his reports. You can read the whole thing online: <a href="http://books.google.com/ebooks/reader?id=QmADAAAAQAAJ&printsec=frontcover&output=reader">The Reports of Sir Edward Coke, Kt., in Verse</a>. <i><o:p></o:p></i></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">You can’t get much information in two lines, so these sub-haikus were probably only meant to serve as a reminder.<o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">Can you guess what that case is?</div><div class="MsoNormal"></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">Who physic gives, by college is<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">Not to be punished, but who does’t amiss. </div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;"><br />
</div><div class="MsoNormal"><span style="font-family: 'Gill Sans MT', sans-serif; font-size: 11pt; line-height: 115%;">This is <a href="http://en.wikipedia.org/wiki/Dr._Bonham's_Case"><i>Dr. Bonham’s Case</i></a>, <a href="http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs1.html">8 Co. Rep. 114</a> (1610), a case that influenced (or, at least, was cited and discussed in) <i>Marbury v. Madison</i>.</span></div><div class="MsoNormal"><span style="font-family: 'Gill Sans MT', sans-serif; font-size: 11pt; line-height: 115%;"><br />
</span></div><div class="MsoNormal">Here is another:<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">For building hogsty, house to die,<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">Limekiln, if prejudice, action doth lie.<o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">This one is <i>Aldred’s Case</i>,<i> </i><a href="http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106347&layout=html&Itemid=27">9 Co. Rep. 57b</a> (1610)<i>.</i> This one a leading case in nuisance.<o:p></o:p></div><div class="MsoNormal"><br />
And a last one:<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">Monopolies, Granted by king are void,<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">They spoil the trade in which they youth’s imploy’d<o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">This is the <a href="http://en.wikipedia.org/wiki/Case_of_the_Monopolies"><i>Monopolies Case</i></a>, <a href="http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106358&layout=html&Itemid=27">11 Co. Rep. 84b</a> (1599), an early antitrust case.<o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">Who is the author? Why did he do it? The first edition of the book, published in 1742, opens with a preface by John Worrall (d. 1771), a legal book seller from Bell Yard, then as now part of legal London. “An ancient manuscript of the following verses falling accidentally into my hands,” is all he says of the origins of the book. Jacob Larwood claims in his <i>Forensic Anecdotes, or Humour and Curiosities of the Law</i> <i>and of the Men of the Law </i>(1882) that it was Worrall who wrote the book himself, but there is no indication for that.<br />
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Worrall explained that the book might be useful “not only to refresh the memory, and instruct, but also to afford pleasuring recreation to gentlemen of the law, and others.” This may indicate that lawyers were a humorless bunch already then, but the book proved popular enough to find a willing publisher who put out a third edition in 1826. By then it probably served as the sort of gift that a certain sort of uncle would give to his nephew upon graduation.</div><div class="MsoNormal"><o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">Still, can this method help students these days? How about this one:<o:p></o:p></div><div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 1.0in; margin-right: 0in; margin-top: 0in; text-indent: .5in;">Before confession police must warn,<o:p></o:p></div><div class="MsoNormal" style="margin-bottom: 0in; margin-left: 1in; margin-right: 0in; margin-top: 0in; text-indent: 0.5in;">Or else <span class="Apple-style-span" style="font-family: 'Gill Sans MT', sans-serif;"><span class="Apple-style-span" style="font-size: 15px; line-height: 17px;">people</span></span><span class="Apple-style-span" style="font-family: 'Gill Sans MT', sans-serif; font-size: 15px; line-height: 17px;">’s</span> case is thrown.</div><br />
Although, if you can<span class="Apple-style-span" style="font-family: 'Gill Sans MT', sans-serif; font-size: 15px; line-height: 17px;">’t</span> remember this one, you may need more than a two-line verse to help you.Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-49337081421416357192011-05-16T08:45:00.004-04:002011-05-16T11:55:32.942-04:00Karl Llewellyn was there before<div class="MsoFootnoteText">One of my gripes about contemporary jurisprudence is that all too often it looks as though people think it started in 1961. Consider three examples of ideas nowadays associated with Hart:<o:p></o:p></div><div class="MsoFootnoteText" style="margin-left: .55in; mso-list: l0 level1 lfo1; text-indent: -.25in;">(1)<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span><span dir="LTR"></span>The distinction between the internal and the external point of view.<o:p></o:p></div><div class="MsoFootnoteText" style="margin-left: .55in; mso-list: l0 level1 lfo1; text-indent: -.25in;">(2)<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span><span dir="LTR"></span>The distinction between the core and penumbra of legal rules.<o:p></o:p></div><div class="MsoFootnoteText" style="margin-left: .55in; mso-list: l0 level1 lfo1; text-indent: -.25in;">(3)<span style="font: normal normal normal 7pt/normal 'Times New Roman';"> </span><span dir="LTR"></span>What has been <a href="http://www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__journals__law_review/documents/web_copytext/ecm_pro_059778.pdf">described recently</a> as “the most famous hypothetical in the common law world,” the statute banning vehicles in the park. (This one is actually from Hart’s 1958 article “Positivism and the Separation of Law and Morals.”</div><div class="MsoFootnoteText" style="margin-left: .55in; mso-list: l0 level1 lfo1; text-indent: -.25in;"><o:p></o:p></div><div class="MsoFootnoteText"><br>
</div><div class="MsoFootnoteText">All these can be found, years before, in the work of Karl Llewellyn.<o:p></o:p><br>
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</div><a href="http://juristhoughts.blogspot.com/2011/05/karl-llewellyn-was-there-before.html#more">Read more »</a>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com1tag:blogger.com,1999:blog-9161761961928932262.post-91654721988635018662011-05-13T13:53:00.004-04:002011-05-14T00:36:53.334-04:00H.L.A. Hart, A View of America – this time with a good scan<div class="MsoNormal">Following on the previous <a href="http://juristhoughts.blogspot.com/2011/05/hla-harts-least-known-paper-now-online.html">post</a>: a much better scan is now available <a href="https://3778361856247080139-a-1802744773732722657-s-sites.googlegroups.com/site/danpriel/hart-view-america/Hart%2CAViewofAmerica.pdf?attachauth=ANoY7co_wdCw4ebubZ6ZqqqI8wciwF5fQqQEkzuUw_RyXETlk7nf1vYp8C3IY7MSt7lQcqNEpunSrGFV0OHVNSWgpb1N7MknlaWacBD-vcstYsHX6Y0ReBNQ78_knoKs-ik5wC3wfgbPUOu86JlYQCmohKXzKELk4sKD_UNCRzvLIZ2xAXKFV9h7UvB5U42MYcBDywmp_e_pRWEc2Lj8hl4QCtdoafEHuh7MVhGmg_HNRljbWreGWXI%3D&attredirects=0">here</a>.<o:p></o:p></div><div class="MsoNormal"><br />
</div><div class="MsoNormal">For citation purposes, the source is <i>The Listener</i>, 59 (1958): 89-90.<o:p></o:p></div>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-26607114466850829262011-05-11T12:30:00.001-04:002011-05-14T00:36:33.464-04:00The painting on this blog<div class="MsoNormal"><div class="separator" style="clear: both; text-align: center;"><a href="http://1.bp.blogspot.com/-TaO7Xu_in6w/Tcq5JE2ymEI/AAAAAAAAAAc/lyNHdUPE--k/s1600/klimt87.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="http://1.bp.blogspot.com/-TaO7Xu_in6w/Tcq5JE2ymEI/AAAAAAAAAAc/lyNHdUPE--k/s320/klimt87.jpg" width="213" /></a></div><br />
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How many paintings are there called “Jurisprudence”? Not many that I know of. And even the one I know of no longer exists. The painting is, of course, by Klimt, who was commissioned to paint three murals for the University of Vienna: “Philosophy,” “Medicine,” and “Jurisprudence.” (A fourth mural was to be painted by someone else.) The paintings were poorly received, and were never displayed at the university. They changed hands, and eventually all three were destroyed in World War II, so all we have now are black-and-white photos. You can read more about them in the ever resourceful <a href="http://en.wikipedia.org/wiki/Klimt_University_of_Vienna_Ceiling_Paintings">Wikipedia</a>.<br />
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And if you wonder what this painting has to do with jurisprudence, there is an interesting interpretive essay on the paintings in Carl Schorske’s <i><a href="http://books.google.com/books?id=rz85AAAAIAAJ&printsec=frontcover&dq=inauthor:schorske+vienna&hl=en&ei=nSTKTazULcj40gHmq63nCA&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCkQ6AEwAA#v=onepage&q&f=false">Fin-de-siècle Vienna: Politics and Culture</a></i>. <o:p></o:p></div>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com0tag:blogger.com,1999:blog-9161761961928932262.post-66181410649095554402011-05-10T13:03:00.001-04:002011-05-14T00:38:04.666-04:00What the judge had for breakfastLegal realism is what the judge had for breakfast, right? This is what people used to say when they wanted to make fun of legal realism. The origins are unclear, but the closest I have come to its origins is this:<br />
<blockquote><span class="Apple-style-span" style="font-family: inherit;"><span style="font-size: 11pt; line-height: 115%;">Study of particular personalities </span><span style="color: black; font-size: 10pt; line-height: 115%;">becomes</span></span><span style="color: black; font-family: Arial, sans-serif; font-size: 10pt; line-height: 115%;"> essential to the advocate, and so, important for Jurisprudence if it is not to ignore the facts of life. In the case of a particular judge subject to dyspepsia, the unfortunate effects of a particular ill-advised breakfast do alter the advocate's practical problem. I confess to total inability to understand why, when the subject of study is the effect of advocacy and the bearing of the advocate’s work on the result of cases and the growth of law, such matters should be regarded as either unilluminating or indecent to discuss.</span></blockquote>K.N. Llewellyn, <a href="http://heinonline.org/HOL/Page?handle=hein.journals/clr40&div=40&g_sent=1&collection=journals">On Reading and Using the Newer Jurisprudence</a> (1940) (requires subscription).<br />
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Well, it now turns out that this may not be such a joke after all. Here is the abstract of an article to be published in the <i>Proceedings of the National Academy of Science</i>:<br />
<blockquote><span class="apple-style-span"><span style="color: black; line-height: 115%;"><span class="Apple-style-span" style="font-family: inherit;">Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges.We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.</span></span></span></blockquote>Here is the <a href="http://www.pnas.org/content/108/17/6889.full.pdf+html">source</a>.<br />
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<blockquote><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;"></span><br />
<pre style="font-family: Arial, Helvetica, sans-serif;"></pre></blockquote>Dan Prielhttp://www.blogger.com/profile/00919432539418547674noreply@blogger.com1