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.