Sociology of Jurisprudence (Legal Theory Today)

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Whereas law as a means of governance of human communities dates back to at least bce in ancient Egypt , sustained and systematic philosophical reflection on its nature for which there is surviving evidence began only in the late 5th century bce in ancient Greece and nearby areas of the Mediterranean, not long after the birth of Western philosophy itself. From that point onward, a more or less continuous history of such reflection can be traced up to the present day. As is true with the history of philosophy more generally, one can observe over the centuries changes not only in the theories set forth but also in the central questions about law that such theories were meant to answer.

Although every philosophical theory is in part a product of the time, place, and culture in which it is developed, the philosophy of law is parochial in an additional sense. Philosophical speculation about the nature of law not only is very often shaped by the politics of the time and place of a given theorist but is also carried on with a specific sort of legal system and legal culture in view.

The latter fact is important, as the kinds of legal systems in Europe and the Anglophone world have varied widely through the last several millennia. Although the shape and structure of those systems cannot be discussed in any detail here, it should nonetheless be noted that a robust understanding of each of the major theories and texts in the history of philosophy of law requires some acquaintance with the legal systems of the cities and states in which a given theory was developed.

As a result, Aristotle theorized about law primarily on the model of general rules of action enacted by legislation and revisable by direct vote or other plebiscitary means. To take a different example, starting in the 17th century many British and later other Anglophone philosophers of law argued for the central importance of judicial institutions for the very existence of a legal system and debated the idea of legal reasoning as a distinct sort of deliberative activity.


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More recently, increasing attention has been paid to the related question of how the language of the law is to be correctly interpreted. Some theorists, beginning in the early 20th century, even found it fruitful to think about the nature of law primarily from the point of view of legal professionals such as judges or lawyers.

That development is surely to be at least partly explained by the fact that those theorists reflected on law almost exclusively within advanced common law systems—i. The abstract concept of law is acknowledged, though not discussed, in the poems of Homer and Hesiod in the 8th—7th century bce. In the Greek histories and literature of the 6th and 5th centuries bce , however, one finds the first articulation of ideas about law that have had enduring influence in the West: that law is a kind of command or prohibition with regard to what its subjects ought to do and that law is often accompanied by at least the threat of punishment or coercion by the state.

This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically.

The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today. Most users should sign in with their email address.

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Legal positivism. Natural law theory. Figure 1: Legal positivism and natural law in most contemporary scholarship. However, I believe this conclusion derives from a very narrow understanding of the debate between these two views. The most familiar way, at least until recently, to explain the divide between legal positivism and natural law theory was in terms of conditions of validity.

I do not think this is the most helpful way of explaining the difference, not least because understood in this way it is difficult to see a real difference between legal positivism and natural law theory e. Gardner And it is here that we can understand the sense in which some legal positivists deny, and natural lawyers insist on, a connection between law and morality. The legal-positivist view seeks to explain what it means for the practice of law to make a demand that something be done or not done in a particular way. Games still differ from law in one crucial respect, which arguably undermines the analogy.

People choose to play games; people do not typically choose to be subject to law. I say more on this below.

Reasons for the Emergence of the Sociological School

The natural lawyer, however, asks what it is for an individual to be actually required to do or refrain from doing something because the law says so Finnis , and here it seems more difficult to offer a compelling account without invoking morality. When the dividing line is seen in terms of conditions of validity, legal positivism and natural law seem to be in verbal rather than substantive disagreement.

In the context of debates over normativity understood in the way just identified, the disagreement is apparent because the two supposedly contrasting views are concerned with different questions. More for our purposes, this debate in no way addresses the challenge of giving a naturalistic account of the normativity of law. On this question, the prevailing view in contemporary jurisprudence, one that crosses the natural law—legal positivism divide, is that the answer is no.

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Sociological School of Jurisprudence

It is on this front that a naturalistic approach to the explanation of human action challenges contemporary legal philosophy. He argued that legal philosophers were a throwback to the anti-naturalistic approach of s and s Oxford, and their continued adherence to conceptual analysis was a remnant of a bygone philosophical era. Leiter —35, , By then recasting legal positivism as a naturalistic view Leiter was able to redraw the jurisprudential map in the following way:.

First, this view offered a seemingly clear divide between legal positivism and natural law. Another significant implication of characterizing the debate in this way is that it ties jurisprudential debates to broader philosophical debates. By tying the legal positivism—natural law debate to the debates over naturalism in other areas of philosophy, Leiter provided a way of opening up a stale and moribund discipline to new ideas, to draw links between debates within jurisprudence and debates in, among others, ethics, epistemology, the philosophy of mind, the philosophy of social science.

When the difference between legal positivism and natural law is presented as an application of the broader debate between naturalism and anti-naturalism, the naturalist has an almost ready-made argument for legal positivism, or if it is any different against natural law theory. Cut to its core, the argument looks roughly like this:. I think, however, in spirit the argument is there, and can be fairly reconstructed from what he writes.

Regardless of authorship, what are the merits of this argument? When the stakes between legal positivism and natural law are this high, i. Now, while obviously the plausibility of naturalism is an issue that must be addressed at one point in discussing the merits of naturalistic jurisprudence, in an important sense the real question in such a debate has little to do with jurisprudence.

Sociological Jurisprudence and The Spirit of The Common Law - Oxford Handbooks

In the argument above, the debate between legal positivism and natural law is merely a sideshow to the larger philosophical debate over naturalism. Assuming 3 is true, is there a way out for the natural law theorist? No doubt, if naturalism is true, this argument is effective against some versions of natural law theory, but in the following section I will suggest that we can reconstruct certain natural law views in naturalistic terms that is to say, we may reject 2. For a jurisprudential naturalist, these are the most interesting views to consider.

Theories of Punishment

This is a rather weak claim but one that may still be controversial; it ceases to be so when it is coupled with the idea that this test of legal validity is itself fixed by the attitudes of the people in question. Unfortunately, this is what one sometimes finds legal positivists to argue. As such, it is not surprising that natural lawyers have no difficulty accepting it; but this is not because, as Leiter thinks, legal positivism has proven victorious Leiter 2, , but because legal positivism understood in this way does not engage with the claims natural lawyers make.

Legal positivism understood in this way is the claim that what according to lawyers is valid law is what ordinary lawyers consider to be law. This is uncontroversial.

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To challenge natural law theory it needs to be shown that what according to lawyers is valid law is actually law. What ordinary lawyers think about Nazi law has no bearing on the latter question. So understood, there is an old idea—far older than any Dworkinian looking-glass—that there may be things that have the external appearance of law, but in fact are something else, specifically a form of robbery, the confusion of power with authority. For legal positivism to pose a challenge to this view it must be understood as a political not conceptual thesis about authority.

In particular, such a thesis about authority can explain who are people to whose views we should look to know what counts as law, and why it is their views and not the views of others that matter. There are naturalistic and anti-naturalistic ways of understanding this question, and I think these will be more illuminating ways of understanding a debate between a naturalistic version of legal positivism and an anti-naturalistic version of natural law theory.

Leiter seems to accept the identification of what counts as law as an important task for jurisprudence Leiter , —90; although in Leiter he is more skeptical about this project , although he rejects the dominant conceptual approach to answering this question, favoring a naturalistic answer instead. Leiter has written on normativity more generally [] where his views are more congruent with what I say below. This too seems to me to be an empirical question that does not raise any particular problems for a naturalistic account of law.

As Leiter himself acknowledges, it may be true only of appellate courts, which leaves open the possibility that law has normative force on trial judges as well as other people. Moreover, the empirical studies on which it is based have been challenged by other empirical studies that argue that some legal norms influence outcomes.

Perhaps most important in this context, it is notable that Leiter turns to political science, not cognitive science, for empirical support. As such, these studies do not point to any cognitive impediment to legal rule-following limits that presumably are true of all humans , but are confined to American courts, and especially the United States Supreme Court.

If legal rules have normative force and not just the appearance of one , explaining it remains an open question. And as questions of normativity are often seen as posing a serious challenge to naturalistic views, it is worth laying out the different ways in which naturalistic jurisprudence might respond to it. This is the task of the next section. Figure 3: My proposed recharacterization of legal positivism and natural law. As shown above legal positivism is today mostly held by anti-naturalists, but with legal positivism the historical links to naturalism are clear.

Hobbes and Bentham, both considered seminal legal positivists, were adamant about the continuity between the natural world, human nature, and the social and political world. They explicitly sought to explain the moral and political domain using the same methods used for explaining the natural world. So placing legal positivism or at least some version of it on the naturalistic side is not particularly difficult to stomach although it does suggest that contemporary legal positivism and its purported intellectual ancestors are less similar than is commonly assumed: Priel Matters do not look quite so simple on the natural law side of the ledger: the origins of natural law theory lie in the misty days of ancient Greece and Rome, with an image of a universe where god s not only set the laws that set the physical world in motion, but also the laws for humans to abide by.

To this day natural law theory is closely associated with religious doctrine, and religion and naturalism are not obvious bedfellows. One advantage of the strategy pursued in the previous section was that it affirmed the clear divide between legal positivism and natural law.

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