Volume 101

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.

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.

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