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The Province of Jurisprudence Compromised

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter begins with a discussion of the purpose of this book, which is to expose the failings and frailties of analytical jurisprudence and suggest an alternative approach to legal theory. It ... More

This chapter begins with a discussion of the purpose of this book, which is to expose the failings and frailties of analytical jurisprudence and suggest an alternative approach to legal theory. It then considers John Austin's The Province of Jurisprudence Determined, and argues that in establishing the provenance and province of jurisprudence, Austin also managed to compromise its usefulness and worth. The chapter presents a democratic approach to jurisprudence, and discusses three anti-analytical positions—the realist, naturalist, and non-ideological.Less

The Provinciality of Jurisprudence Determined

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter examines the nature and performance of the most favored mode of philosophical inquiry: conceptual analysis. It argues that analytical jurisprudence's practice of conceptual analysis is ... More

This chapter examines the nature and performance of the most favored mode of philosophical inquiry: conceptual analysis. It argues that analytical jurisprudence's practice of conceptual analysis is not neutral between different political systems of governance. Its account of law might easily capture the operation of authoritarian regimes and some industrialized modern states (e.g., the United Kingdom and the United States), but it fails to accommodate some other kinds of governmental arrangements. In particular, it does not lend itself to be applied to strongly democratic modes of governance and, on occasion, places considerable obstacles in the way of their development. Consequently, contrary to their most cherished contentions, analytical jurists must defend the partial thrust of their analytical jurisprudence in directly and substantively normative terms. Divested of its universalistic claims, analytical jurisprudence becomes exactly the kind of politicized theory that it claims to reject and from which it strives to distinguish itself.Less

The Province of Jurisprudence Revisited

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter reviews Austin's approach to jurisprudence and traces its continuing influence on the performance of jurisprudence today. Rather than offer a flat chronological narrative, it presents a ... More

This chapter reviews Austin's approach to jurisprudence and traces its continuing influence on the performance of jurisprudence today. Rather than offer a flat chronological narrative, it presents a more schematic survey and captures the important themes that make better sense of the contemporary jurisprudential project—conceptual analysis, the law/morality relationship, its methodological orientation, and power's role. Austin's The Province of Jurisprudence Determined is situated within a more general intellectual and social context in order to emphasize the extent to which his own legal theory and jurisprudence more generally are part of a contested political tradition. In particular, the chapter assesses the (un)democratic thrust of his legal theory and lays out the challenge to be met by later jurists in improving or making good on that democratic deficit. Throughout the chapter, Austin's pioneering work is used to set the terms for the continuing struggle over the philosophical and political soul of contemporary jurisprudence.Less

The Province of Jurisprudence Predetermined

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

The attractions of the scientific method have been given a new lease on jurisprudential life. The lack of scientific ambition is considered by some to be the failing of contemporary legal theory, and ... More

The attractions of the scientific method have been given a new lease on jurisprudential life. The lack of scientific ambition is considered by some to be the failing of contemporary legal theory, and there is currently a marked effort to take scientific inquiry more seriously and to celebrate the birth of a New Legal Realism. By extending science's data-rich and causality-dominant methods to law's social practices and adjudicative routines, the hope is that jurisprudence will deliver some of the secure truths and dependable knowledge that have so far eluded traditional analytical jurisprudence. This chapter challenges this scientific turn towards the tried-and-true methods of natural science as being entirely the wrong direction; a naturalized jurisprudential methodology is less a scientific undertaking and more a scientistic smash-and-grab. Moreover, contrary to the epistemological claims of its supporters, such a scientific rendition of analytical jurisprudence is far from a turn away from morality.Less

The Province of Jurisprudence Regenerated

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been ... More

This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been neglected, it explores how such a pragmatic account of power recasts the practices and problems of legal theory and law. The fact is that too much jurisprudence feigns to skate on “the frictionless ice of philosophical discourse”. In contrast, it is argued that it is only against and within a jagged process of power that the workings of law and legal theory can be best appreciated and reworked.Less

The Morality of Jurisprudence Determined

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, ... More

This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, relevance, and justification for a positivist account of jurisprudence are unconvincing. Apart from the assertion that it is possible for there to be a bad legal system (to which almost all jurists, moralist and positivist, can accede), legal positivism has little to offer. However, the moralist case is also of limited constructive worth when viewed from a democratic perspective; while it insists that there is an inescapable moral dimension to determining law's validity, it seeks to avoid and contain the subversive implications of that powerful insight. The chapter looks at three different responses—soft/inclusive, hard/exclusive, and ethical positivism—and assesses their merits from a democratically leaning political alternative account of jurisprudence.Less

The Province of Jurisprudence Moralized

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this ... More

This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.Less

The Experimental Province of Democracy Determined

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more ... More

This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more generally. After tackling the contested relationship between philosophical pragmatism and political democracy, it defends strong democracy as an institutional complement to the experimentalist bent of pragmatic theorizing. It then rounds out the defense of the political province of democratic legal theory by brief reference to the literary insights of George Eliot's Middlemarch.Less

Making Old Questions New: Legality, Legal System, and State

Keith Culver and Michael Giudice

in Philosophical Foundations of the Nature of Law

Analytical jurisprudence has long struggled to explain the continuity of legal systems in the face of challenges such as revolution, devolution, and emergencies. This chapter presents the legal ... More

Analytical jurisprudence has long struggled to explain the continuity of legal systems in the face of challenges such as revolution, devolution, and emergencies. This chapter presents the legal pluralist challenge to Hart's and Raz's attempts to resolve the continuity problem. It argues that while neither Hart's nor Raz's framing of or response to the problem are persuasive, the legal pluralist response to its own challenge to legal theory is also unpersuasive. The problem of continuity remains to be resolved in both state-based legal systems and non-state legal contexts, in future work whose shape is outlined here.Less

Jhering's Heaven of Concepts and Modern Analytical Jurisprudence

H. L. A. Hart

in Essays in Jurisprudence and Philosophy

This chapter begins by expressing the regret that so few of Jhering's great works are translated into English. It is an intellectual tragedy; there is no English translation even of the masterly ... More

This chapter begins by expressing the regret that so few of Jhering's great works are translated into English. It is an intellectual tragedy; there is no English translation even of the masterly Geist des Römischen Rechts nor of Scherz und Ernst in der Jurisprudenz, nor even of the essay Im Juristischen Begriffshimmel which is discussed here, though some fragments of the latter appeared in 1951 in an English translation in an American collection of readings in jurisprudence and legal philosophy. In addition, this chapter provides in summary form the main intellectual failings against which Jhering's satire is directed. Moreover, the chapter explains the sensation of déjà vu, even if not déjà lu, in Jhering. It then turns to what is called by American and English lawyers ‘analytical jurisprudence’.Less

Hart: Moral Critic and Analytical Jurist

in H.L.A. Hart, Second Edition

The objective of jurisprudence is to achieve a systematic and general understanding of law. Law aims to organize and order human communities, as well as protect and regulate human beings as members ... More

The objective of jurisprudence is to achieve a systematic and general understanding of law. Law aims to organize and order human communities, as well as protect and regulate human beings as members of communities. Theoretical study of this business of law may overlap with and draw from political and moral philosophy, sociology, history, descriptive political science, analytical philosophy, or logic and rhetoric. H. L. A. Hart views jurisprudence as primarily a branch of philosophy in which philosophical ideas and methods are applied both to the criticism of law and to the conceptual analysis of law, legal systems, and legal concepts. This chapter examines Hart's analytical jurisprudence and linguistic philosophy as well as his reputation as a moral critic of law. It also looks at his role in the liberalization of the law that occurred in the United Kingdom from 1955 to 1970.Less

The Province of The Judiciary Democratized

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter considers the defense of adjudication as not merely an acceptable feature of democracy, but also as an indispensable component in a flourishing democratic society. It examines the ... More

This chapter considers the defense of adjudication as not merely an acceptable feature of democracy, but also as an indispensable component in a flourishing democratic society. It examines the central dynamic at work in efforts to justify judicial review in constitutional democracies. By reference both to situated theoretical arguments and historical evidence, the chapter proposes a “hard-core” case against judicial review and suggests how strong democracy might take up the resulting institutional slack. Throughout the chapter, it is emphasized how democracy is better understood as being not a ground or foundation for politics, but a dynamic process through which politics is experienced and evaluated; the institutional forms and social practices of democracy must themselves be open to debate and revision in line with the experience of society's participating members.Less

The Foundations of Formal Ascertainment of International Law: The Social Thesis

d'Aspremont Jean

in Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules

Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of ... More

Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of such formal law-ascertainment criteria. This is the object of chapter 8 which argues that any set of formal yardsticks of law-ascertainment shaped through ordinary language would remain inextricably beset by the indeterminacy of language if it were not grounded in the social practice of those who apply them. This chapter thus turns to the foundations of law-ascertainment in the theory of the sources of international law and, trying to offset the anti-theoretical bent of the international legal scholarship, demonstrates the possibility of constructing a theory of formal law-ascertainment grounded in the social practice of law-applying authorities. In doing so, this chapter seeks to rejuvenate the social thesis as it has been elaborated in English analytical jurisprudence by borrowing from a variety of thinkers like Wittgenstein and Tamanaha. This brings it to argue that the concept of international law-applying authorities must be broadened as to include a whole new series of international actors. It also points to the vainness of the question of the validity of international law as a whole. It simultaneously shows that the social thesis, if adequately rejuvenated in the framework of the theory of sources of international law, can continue to benefit from the insights from sociological studies, critical legal studies, third world approaches or feminist critiques and is surely not incompatible with them.Less

Bentham's Of Laws in General

H. L. A. Hart

in Essays on Bentham: Jurisprudence and Political Philosophy

Bentham's Of Laws in General is a remarkable work with a remarkable history. This chapter provides a brief mention of the salient features of the story. Of Laws in General is in fact a continuation ... More

Bentham's Of Laws in General is a remarkable work with a remarkable history. This chapter provides a brief mention of the salient features of the story. Of Laws in General is in fact a continuation of Bentham's best-known work An Introduction to the Principles of Morals and Legislation. The latter work was printed in 1780 but its publication was held back by Bentham for nine years. This chapter expounds the main features of this extraordinary work. Its originality and power certainly make it the greatest of Bentham's contributions to analytical jurisprudence, and this chapter states that it is clear that, had it been published in his lifetime, it, rather than John Austin's later and obviously derivative work, would have dominated English jurisprudence, and that analytical jurisprudence, not only in England, would have advanced far more rapidly and branched out in more fertile ways than it has since Bentham's days.Less

The Explanatory Role of the Weak Natural Law Thesis *

Mark C. Murphy

in Philosophical Foundations of the Nature of Law

This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature ... More

This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature of law. It first considers and rejects some common objections to the weak natural law thesis. It then argues that the weak natural law thesis plays its role in natural law theory by way of an Aristotelian explanatory structure called ‘hypothetical necessity’: if it belongs to the office of law to be a rational standard for conduct, and a norm will be constitutionally unable to carry out that office unless it exhibits some feature, then that feature necessarily belongs to law. The chapter shows that if the weak natural law thesis is true and hypothetical necessity is an appropriate explanatory structure, a variety of positivist theses about false must be false.Less

Introduction

d'Aspremont Jean

in Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules

This introductory chapter provides the background of the argument. It starts by describing the contemporary move away from the necessity to distinguish law from non-law and the growing tendency to ... More

This introductory chapter provides the background of the argument. It starts by describing the contemporary move away from the necessity to distinguish law from non-law and the growing tendency to construe international law as a continuum. It then briefly outlines the formal theory of ascertainment of international legal rules that is put forward in the book. It explains how the argument rests on a rejuvenated and modernized understanding of the source and social theses as they were elaborated in English analytical jurisprudence. The chapter ends with a number of caveats pertaining to the ambit and the limits of the argument. In particular, it explains how the theory of ascertainment provided by the book differentiates itself from current projects like global administrative law or the study on the international exercise of public authority. It also contends that formalism, while being a useful theory of ascertainment, certainly is insufficient to describe the whole phenomenon of law.Less