Upcoming McMaster conference on the nature of law

Soon I will be heading off to the conference on the nature of law to be held at McMaster University.  For quite some time I have been rather skeptical of legal philosophers’ defining the jurisprudence as concerned first (and foremost?) with the search for the nature of law, and my contribution to the conference takes the same line, albeit perhaps more explicitly than in the past. The specific argument is different from my earlier efforts. I adopt a kind of “case study” approach, comparing the way the relationship between law and politics is understood in American and British (or English) law. I argue that it is understood very differently, and that the difference reflects a different fundamental understanding of the nature of law. The paper is now available on SSRN.

There is a broader point emerging from the paper: the need for legal philosophers to pay more attention to politics. Legal philosophers are obsessed with the question of the relationship between law and morality. In one way or another all the big debates of the last fifty years or so (positivism v. natural law; positivism v. Dworkin; inclusive positivism v. exclusive positivism; obligation to obey to the law yes or no) are offshoots of that question, and different thinkers’ views tend to be aligned along predictable lines: if you are a legal positivist it is not surprising you think there is no general obligation to obey the law; if you are a natural lawyer, it is not hard to see to discover that you believe the opposite.

What is interesting is that there is almost no work by legal philosophers on the connection between law and politics. (There is, of course, a lot by political scientists.) But I have come to think that the law-and-politics interface is much more important than the law-and-morality interface for the sort of questions that preoccupy legal philosophers. Admittedly, this impression may simply be the result of the fact that this issue is less explored, but be that as it may, more attention should be paid to this issue. One reason why it may have been less discussed is that it is potentially much more destructive for the “nature of law” enterprise than that of law-and-morality. Or at least this is at least this what I try to show in my paper.

The paper ends with a brief look to the future (and in a way to the past) of jurisprudence, a matter that I explore more fully in a different paper (still in the works), namely the disappearance of human nature from jurisprudence and its potential, and needed, return. A view of law as derived from some views on human nature has been central to the work of the classical natural lawyers but it is also an aspect of those thinkers often classified as early legal positivists, Hobbes and Bentham. For them an account of human nature was itself part of a broader metaphysical worldview. This perspective has largely disappeared from contemporary legal positivism, and it is this perspective that a more naturalistic jurisprudence could and should revive. More on this in the future.

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.