Modern Jurisprudence: A Philosophical Guide

276 Pages·2014·2.182 MB·English

by  Sean Coyle

MODERN JURISPRUDENCE
This book provides a concise and accessible guide to modern jurisprudence,
offering an examination of the major theories and systematic discussion of
themes such as legality and justice. It gives readers a better understanding
of the rival viewpoints by exploring the historical developments which give
modern thinking its distinctive shape, and placing law in its political context.
A key feature of the book is that readers are not simply presented with oppos-
ing theories, but are guided through the rival standpoints on the basis of a
coherent line of reflection from which an overall sense of the subject can be
gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader
systematically through the terrain of modern legal philosophy, tracing the
issues back to fundamental questions of philosophy, and indicating lines of
criticism that build to a fresh and original perspective on the subject.

Modern Jurisprudence
A Philosophical Guide
Sean Coyle
OXFORD AND PORTLAND, OREGON
2014
Published in the United Kingdom by Hart Publishing Ltd
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© Sean Coyle 2014
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to be identified as the author of this work.
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British Library Cataloguing in Publication Data
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ISBN: 978-1-84946-024-8
ISBN (ePDF): 978-1-84946-750-6
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
TS Eliot, Little Gidding, V.

Preface
This book is primarily intended for students taking university courses in
jurisprudence or legal philosophy, but it may be useful to persons in other
fields, or at other stages of legal education, who wish to deepen their engage-
ment with topics in legal and political philosophy.
Within the structure of the modern law degree, jurisprudence is usually
taught either as a compulsory subject studied in the second year, or (more
usually) an elective course in the third year. With this in mind, I have forsworn
the customary introductory exhortation, beloved of jurisprudence textbooks,
asking ‘why study jurisprudence?’: as presumably (if you are reading this book)
you have already made an informed decision to do precisely that, or else you
were not given the choice and found yourself thrust through the door whether
you like it or not.
For readers of both kinds, there obviously already exist very many textbooks
offering guidance in what is, irreducibly, a complex and challenging subject.
The point of departure of this book, which is based on the jurisprudence
courses I taught at UCL, Durham and Birmingham, derives from the sense I
have that jurisprudence students do not simply want to be presented (as it
were, democratically) with a range of difficult, mutually contradictory stand-
points and theories amongst which they are urged to make up their own mind,
especially perhaps when feeling some intuitive attraction to all of them.
Perhaps not unreasonably, many readers wish for a sense of direction when
otherwise it is difficult to know where to turn. Certainly when studying the law
of contract (for example), the lecturer’s audience is not simply presented with
numerous, diverging lines of authority and instructed to think its own way
through the thicket of conflicting judgments and interpretations. Contract
textbooks provide no less a deliberate interpretation of the law: one view out
of many possible reconstructions that is held out, however defeasible it may
be, as being the correct way to look at things. (That is, as the historian AWB
Simpson reminds us, the reason why we buy them all.) Why should it be any
different with jurisprudence?
In this book, therefore, I have not hesitated to state how I think the central
questions of jurisprudence should be understood, and where this takes us. I
have not presented a series of theories relatively independently of one another,
as on an equal footing, but have tried to indicate a coherent line of reflection
from which sense of them can be made. At the same time, it is important not
to think of jurisprudential questions as capable of dispositive ‘answers’. It is
viii Preface
the primary characteristic of philosophical questions that they cannot be
resolved, proved or disproved, once and for all. These are the widest questions
one can ask: setting no limits to the depth or the breadth of inquiry, not
because human minds are forever removed from ultimate truths, but because
there is no end to the task of interrogating the understanding of such truths.
There is no point beyond which it becomes impossible further to deepen one’s
reflection upon, and engagement with, ideas such as justice or of right.
It goes without saying that I have simplified arguments here and there,
given the introductory intention of the book, but (I trust) without actual distor-
tion. Though I hope that readers will feel encouraged to make their way
systematically through the book, fully exploring the deeper issues raised, it is
possible for the reader in a hurry to skip directly to those passages, mostly in
the second part of the book, that discuss the writings of particular legal phi-
losophers of modern times. For both sorts of readers, my hope is that this book
provides some orientation in this endlessly fascinating subject, and sheds a
measure of light upon some of its concerns.
SC, University of Birmingham, September 2013.