Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing.
Volume 101
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.