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Jurisprudence and (Its) History

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of familiar legal concepts, such as “right,” “duty,” “authority,” and, of course, “law” itself. For such an inquiry, history—either of law itself or of philosophical thinking about law—seems irrelevant.  Meanwhile, historians, ever on guard against speculative claims ungrounded in fact, often prefer sticking to the fine-grained details of actual legal regimes.  Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound.

But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely)  a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group.  For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors.  At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law.  When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law.

Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all.  They share the same ultimate scholarly goal and subject matter—to study legal phenomena with the hope of gaining a clearer and deeper view of them —and differ primarily in the tools they use to reach that goal, as well as in the relative abstractness of the conclusions they offer. True, legal historians focus on the attitudes of people in the past, whereas legal philosophers remain more interested in the attitudes of those in the present; but that only means the objects of their attention differ, not the nature of their projects. And, to the extent that contemporary self-understandings re-quire interpretation of past ones, the distinction between the two enterprises becomes fuzzier still. If that is right, then the mutual disregard of the two fields suggested at the outset may not be justified. Instead, there may be reason to think that turning to history could broaden the boundaries, and raise the ambitions, of a field that many lawyers, judges, and even legal scholars have written off as esoteric and dominated by concerns remote from their own.

Jurisprudence, the Sociable Science

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

At the close of his report of Calvin’s Case, Coke wrote that jurisprudence is a sociable science, “sociable, in that it agreeth with the principles and rules of other excellent Sciences, divine and human.” Admittedly, it was the jurisprudence of the English common law that he so fulsomely characterized in this way, but his explanatory gloss invites a less insular application, echoing as it does the instruction opening the Institutes: “Iuris prudentia est divinarum atque humanarum rerum notitia” (“Learning in the law requires knowledge of things both divine and human”). Unwittingly, perhaps, Coke appropriated for English common law a Renaissance ideal of jurisprudence, based on a medieval gloss on the opening of the Digest—the idea of jurisprudence as vera philosophia. This may well have been an expression of the intellectual imperialism of Renaissance jurists, more academic snobbery than accurate description, but, as often happens, profession tended to shape performance, or at least it shaped the expectations and ambitions of the practice of Renaissance jurisprudence. Jurisprudence strove to be a sociable science. “There is nothing either human or divine,” wrote a Renaissance student of jurisprudence, “which the jurist does not treat and which does not pertain to civil science.”

This ambition was as complex as it was bold. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice. Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics, and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. “Jurisprudence consists not in speculation but in action,” wrote one fifteenth-century jurist, just after invoking Accursius’s notion of vera philosophia.Rather than reject philosophical reflection, he and other Renaissance jurists sought to locate it in concrete human life and experience. Law, on this view, embraced most comprehensively and penetrated most profoundly the practical dimensions of daily life. Philosophy, by contrast, was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended, and informed by and informing law. Jurisprudence, vera philosophia, was neither serene speculation nor pure prudence, but the point at which the theoretical and the practical intersected. Jurisprudence, neither subordinating practice to theory nor theory to practice, at its “sociable” best sought to integrate them.

Such, at least, seems to have been the Renaissance ideal, the ambition. However, if humanist critics are to be believed, performance often fell short of profession. Guillaume Budé, for example, complained that, if we understand law to be “the art of goodness and fairness,” as Ulpian taught, then it must be the job of the jurist “to philosophize on this point.” Yet, judged by this standard, “the study of law has degenerated from its original state. Today there are no longer jurisconsults, or philosophers,” Budé wrote, “but only lawyers (iurisperiti).” A student of twentieth-century English law made the same observation in response to Coke’s praise of the common law. “[M]odern Common Law has ceased to be ‘sociable’,” he wrote. “It is impatient of other kinds and systems of law, and does not eagerly claim kinship with moral science or natural reason.”

This complaint indicts with even greater justice the dominant practice of jurisprudence in the common law world since the late nineteenth century. Analytic jurisprudence began as self-consciously, even militantly, “unsociable,” and its matured and much-sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. Legal philosophers joined the iurisperiti in the jurisprudential ranks, but they have little to say to each other. As one who has long participated in this enterprise and recognizes its remarkable richness, I nevertheless have become increasingly aware of its equally remarkable rootlessness. It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. I hope to expose for our critical attention not an explicit methodological doctrine, but rather a certain widespread but not always or entirely self-conscious mentality. Yet, although I will offer critical remarks about contemporary Anglo-American legal philosophy, my aim is not critical but constructive. To this end, I seek in the next few pages to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace, or at least to entertain, of the ambition of jurisprudence as vera philosophia.

Jurisprudence, History, and the Institutional Quality of Law

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

As Charles Barzun and Dan Priel note in their prospectus for this symposium, the question of how jurisprudence and history relate to one another arises in a number of distinctive forms, and raises a range of interesting and consequential questions. And yet the parallel lines between jurisprudence and the history of legal ideas, which they lament in particular, are reproduced across several of these questions—notably between philosophical theories of law and historical analyses of the development of laws and legal institutions, as well as of the other social institutions and circumstances which provide the environment and framework for that development. Moreover, the historical jurisprudence to which Vinogradoff aspired—a discipline which would bring history, psychology and the social sciences into dialogue with philosophical analysis of law—stands, a century after its conception, as little more than a footnote in contemporary study of the history of jurisprudential ideas (and as yet less than that in conventional jurisprudential study).

The reason, certainly, lies in the incomplete success with which Vinogradoff was able to articulate his vision of the intellectual linkages underpinning the desirability of that dialogue; and more generally in the association of historical jurisprudence with discredited or outmoded ideas, such as the relationship between the identity of particular legal orders and the essential spirit of a people articulated by Savigny; or on generalizations grounded in broad-brush historical anthropology, such as that of Maine. But, whatever the weaknesses of that broad (and itself diverse) nineteenth- and early twentieth-century tradition in the history of legal theory, there is strong reason to think that something important was lost with its decisive and lasting marginalization at the hands of an analytical jurisprudence which has no use for a careful analysis of either its own or law’s genealogy.Indeed, as Gerald Postema argues in his contribution to this symposium, there is further reason to think that this loss also implies an impoverished conception of philosophy and of its contribution to legal theory.

In this Article, after setting out some of the key ways in which the intellectual lines of history and jurisprudence intersect, I will approach the question of whether, and why, history deserves a more central place in jurisprudential thinking in terms of a broad understanding of law as having a fundamental institutional dimension, as well as being a product of social power and interests. Since law realizes itself in terms of intersecting institutional arrangements, and since these change over time, institutional history is central to the very idea of law which jurisprudence aspires to illuminate. Moreover, the history of institutions is fundamental not only to positive jurisprudence but also to normative jurisprudence: Understandings of law and legality structure the conditions of existence for the realization of moral or political ideals in and of law.

After reviewing this argument in relation to a key question of general jurisprudence—that of the quality of legality, understood as the distinctive modality of law—I will pursue it through a more detailed case study in special jurisprudence: an analysis of the trajectory of ideas of criminal responsibility in English law since the eighteenth century. I will argue that, while a broad family resemblance among ideas of responsibility in different eras can be identified, the variations on those ideas—and their particular inflection, relative importance, and impact—depend fundamentally on historically contingent constellations of ideas, institutions, and interests. Furthermore, I will argue that this historical insight into the evolution of law itself maps onto the history of twentieth-century jurisprudence, with three broad—and all-too-often mutually indifferent or even contemptuous—traditions concerning themselves with each of the three broad, law-shaping dynamics, in contrast to the more generous reach of jurisprudential—including philosophical—thinking of earlier eras. This narrowing focus of jurisprudential study, doubtless, has been to some degree a consequence of the increasing specialization and sophistication of the relevant disciplines. But, like the rejection of the bold vision of some versions of historical jurisprudence, it has not been without intellectual cost.

Before moving on, I should perhaps preface my argument, forming part of a symposium in which some distinguished historians of law and legal ideas are represented, with something of a confession. In the early part of my career, legal history and the history of legal ideas were closed books to me, as I made my way in a field of criminal law scholarship dominated by doctrinal scholarship and by concept-focused philosophical analysis of the foundations of criminal law. These two very different paradigms have one big thing in common: They tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines, not infrequently going so far as to read them back onto history, as if things could never have been other than they are. The reasons for this intellectual disposition vary, but it is, to me, a very unsatisfactory one, and from quite early on I found it necessary to temper my reading of criminal law’s conceptual arrangements in the light of sociological information about the context in which they emerge and operate. But in more recent years, I have increasingly found myself turning to historical resources to motivate a more critical examination capable of revealing, first, the contingency of particular legal arrangements, and second, the patterns of development over time which may help us to develop causal and other theses about the dynamics which shape them and hence about the role and quality of criminal law as a form of power in modern societies. So, in a sense, I have been using history in support of an analysis driven primarily by the social sciences.

This is not always a palatable approach to historians. Historians are by disciplinary temperament, after all, closely attentive to detail and particularity; hence their reservations about the construction of general theories which inevitably flatten out detail or nuance are understandable. Yet history is of central importance to social theory, and it is no accident that all of the great social theorists, from Marx to Foucault via Weber, Durkheim, and Elias, among others, have incorporated significant historical elements into their interpretations of the broad factors shaping societal development. Indeed, without the diachronic perspective provided by history (or the perspective offered by comparative study) we could have no critical purchase on social theory’s characterizations of or causal hypotheses about the dynamics of social systems. Hence, while recognizing that not all historians feel comfortable about the deployment of historiography in the service of social theory, I would argue for its appropriateness and indeed necessity (as well as adding—by way of plea in mitigation!—my boundless gratitude to the historians whose meticulous research makes this sort of interpretive social theory possible).

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