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What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer’s “The Path-Dependence of Legal Positivism”

Professor Frederick Schauer employs the views of historically influential legal positivists instrumentally in this way. He suggests that some of their now-neglected views warrant reconsideration of the narrow focus of contemporary positivism: “These commitments [of contemporary positivism] may serve their purposes, but if they have also caused our understanding of the phenomenon of law to be truncated then the benefits may not be worth the costs.” He therefore relies on the stronger of the instrumental uses of jurisprudential history: history as a goad to reflection on reigning jurisprudential assumptions. According to Schauer, in explicating and defending legal positivism, legal theorists over time retained and emphasized certain views of some historically influential legal positivists and ignored their views about law reform, adjudication, and the place of sanctions in an account of law. These ignored views make contemporary legal positivism more restricted than its classical predecessors, Schauer suggests, both in what it takes to be at the core of positivism and positivism’s implications for other parts of legal theory. Schauer believes that the ignored positions—“paths not taken”—can help inform current legal theory generally.

I am less optimistic about the use of the history of jurisprudence for this purpose. In the case of legal positivism and other positions taken within legal theory, the history of paths not taken is unlikely to change the minds of legal theorists. Legal theorists likely are moved by theoretical considerations and arguments, not exegetical insights into the works of their predecessors. The character of legal theory, I will suggest, is likely to be the result of argument untied to the consideration of the history of jurisprudence or the revelation of ignored jurisprudential positions.

Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey’s “Jurisprudence, History, and the Institutional Quality of Law”

Nicola Lacey presents a subtle and searching inquiry into the relationship between history and legal theory. The final portion of her article, with which I shall engage, criticizes the scholarship on criminal responsibility for being too concerned with “its conceptual contours and moral foundations,” “rather than with what it is for[:] its social roles, meaning, and functions.” Lacey then states, “I will argue that we cannot understand what responsibility is, or has been, unless we also ask what it has been ‘for’ at different times and in different places.”

Lacey offers an account of criminal responsibility in the context of the institutions that existed, the ideas the people had, and the interests that the criminal law was to serve. This article is part of her more general research agenda that can be thought to contain the following claims: Criminal responsibility is a concept grounded in the practice of law. It is a social, institutional, functional practice, and the outcome of this practice—the usage of the label of “responsibility”—is the appropriate object of inquiry. Moreover, because this object of study is grounded in a practice, and that practice has changed over time, our understanding of criminal law’s concept of responsibility has shifted over time. It simply makes no sense to Lacey to think about fine-grained accounts of mental states as fixed constants as if that idea was instantiated in the practice of criminal law before people even thought about culpability that way or before they had the institutional mechanisms to realize such ideas. To her, responsibility is not a “constant through time and space,” as such an approach is “in some deep sense . . . antithetical to the very enterprise of historical scholarship.”

Here is what she is arguing against. There are theorists, myself included, who think of questions of responsibility in philosophical terms. These moral truths are not socially or historically contingent; they are constant questions to which we seek answers. My work abstracts away from the fact that most cases are resolved by plea bargain (very much part of the practice of criminal law) and certainly from the mechanisms by which insanity could be assessed in the 1800s (which is part of the history of responsibility findings).

In some ways, this is a (boring) methodological debate. What I care about as responsibility is not what she cares about as responsibility. However, I take Lacey to be placing pressure on the philosophical approach in two ways. First, there is the implicit claim that it is altogether odd to claim to be looking at criminal law if one does not care about law. As she states, “Normative criminal law theory purports, after all, to have some grounding in the reality of criminal law: to offer an account of the implicit normative structure of an actually existing social practice.” And, second, there is the concern that one cannot make important contributions to the real world if one’s work is not grounded in the real world.

Time-Mindedness and Jurisprudence: A Commentary on Postema’s “Jurisprudence, the Sociable Science”

Professor Gerald Postema offers a gentle but damning critique of contemporary analytic jurisprudence for being antisocial, antiphilosophical, ahistorical, and, ultimately, mistaken about not only the province of jurisprudence but also the nature of law. He also offers an elegant restatement of what jurisprudence with a wider ambition must be like, and it is a jurisprudence in which time and history are central.

Postema’s basic diagnosis is that analytic jurisprudence accepts a peculiarly narrowing premise of Austin: that the province of jurisprudence—by which Austin meant the subject matter it studies—is solely “the core concepts of the professional practice of law—concepts of legal right and duty, possession, ownership, liability, fault, person, thing, status, intention, will, motive, legal sources, legislation, precedent, custom and the like.”Although Hart and his successors in the Anglo-American tradition mostly reject Austin’s definition of law as commands backed by threats, and not all are positivists, Postema believes they retain Austin’s narrow understanding of the province of jurisprudence. Jurisprudence is the province of legal concepts used in professional practice, which turns out to be well-suited for the tools and intellectual style of analytic philosophy. A broad understanding of law in its social, economic, cultural, religious, political, and historical dimensions largely vanishes from jurisprudence so conceived. Analytic jurisprudence becomes unsociable, not only to the social sciences, but also to the ambition of genuine philosophy, famously defined by Wilfrid Sellars as the endeavor to understand “how things in the broadest possible sense of the term hang together in the broadest possible sense of the term.” Postema goes so far as to call analytic jurisprudence “philosophy-phobic.” This is an important point, because it makes it clear that Postema’s complaint is not the familiar realist and law-and-society call for replacing jurisprudence with something more scientific—a view that Postema rejects because it “effaces any ambition of a truly critical theoretical perspective on legal practice.” The realists wanted less philosophy in jurisprudence, where Postema wants more.

Postema levels an additional complaint against analytic jurisprudence, directly related to the theme of this symposium. Analytic jurisprudence largely ignores the history of law and the history of jurisprudence—two different, if related, points. Its most distinctive intellectual style consists of drawing distinctions, formulating precisely worded principles, and testing them against linguistic and moral intuitions; but Postema objects that “[p]hilosophy that proceeds primarily by plumbing and pumping intuitions is inevitably and uncritically in thrall to the present.” More specifically, Postema accuses analytic jurisprudence of confining its attention to time-slice legal systems—that is, legal systems as they exist at a given moment of time—and he argues that this ahistorical procedure “can offer very little illumination of law and legal practice.”

Postema offers two general programmatic suggestions for jurisprudence besides greater historical consciousness: sociability and synechism. Sociability, as suggested above, has two dimensions. First, it means interdisciplinarity—a continual dialogue with the study of legal phenomena by the sciences, humanities, and even theology. Second, it means embedding jurisprudence in general philosophy, which in Sellars’s words encompasses “not only ‘cabbages and kings’, but numbers and duties, possibilities and finger snaps, aesthetic experience and death.”

Synechism is a less familiar idea, drawn from the philosophy of C.S. Peirce. It is the commitment to seek continuity among phenomena. Continuity-seeking may sound like another version of sociability, but as I understand it, synechism is a much more specific and theory-laden requirement. Peirce was metaphysically committed to the existence of actual continua everywhere in nature, history, and human psychology. So synechism will impose a certain demand on all systematic studies, namely discerning those continua. In particular, synechism commits us to a certain kind of historiography: The historian’s job is to unearth continuities between past and present rather than studying ruptures. This, it seems to me, is a contestable commitment that rules out a great deal of important historical work.

Furthermore, Peirce understood synechism to imply that ideas are intrinsically temporal and historical phenomena. Although Postema does not endorse this general thesis, he does argue for a special case of it, namely that law is “intrinsically temporal.” This conclusion is central to his argument against the possibility of time-slice legal systems. It, too, is contestable; but, I shall suggest, Postema can reach his conclusion on grounds other than synechism, and I agree with him about law’s intrinsic temporality.

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