The politics of jurisprudence

289 Pages·1989·8.954 MB·English

by  Roger Cotterrell

Roger Cotterrell
THE POLITICS OF
JURISPRUDENCE
A Critical Introduction to
Legal Philosophy
Butterworths
For Ann, David and Linda, again
The Politics of Jurisprudence
A Critical Introduction to Legal Philosophy
Roger Cotterrell LLD. MSc (Soc)
Reader in Legal Theory in the University of London
(Queen Mary and Westfield College)
Butterworths
London and Edinburgh
1989
United Kingdom Butterworth & Co (Publishers) Ltd, 88 Kingsway, LONDON
WC2B 6AB and 4 Hill Street, EDINBURGH EH2 3JZ
Australia Butterworths Pty Ltd, SYDNEY, MELBOURNE, BRISBANE,
Adelaide, Perth, Canberra and Hobart
Canada Butterworths Canada Ltd, TORONTO and VANCOUVER
Ireland Butterworth (Ireland) Ltd, DUBLIN
Malaysia Malayan Law Journal Sdn Bhd, KUALA LUMPUR
New Zealand Butterworths of New Zealand Ltd, WELLINGTON and
AUCKLAND
Puerto Rico Equity de Puerto Rico, Inc, HATO REY
Singapore Malayan Law Journal Pte Ltd, SINGAPORE
USA Butterworth Legal Publishers, AUSTIN, Texas; BOSTON,
Massachusetts; CLEARWATER, Florida (D & S Publishers);
ORFORD, New Hampshire (Equity Publishing); ST PAUL,
Minnesota; and SEATTLE, Washington
All rights reserved. No part of this publication may be reproduced in any material
form (including photocopying or storing it in any medium by electronic means
and whether or not transiently or incidentally to some other use of this publication)
without the written permission of the copyright holder except in accordance with
the provisions of the Copyright, Designs and Patents Act 1988 or under the terms
of a licence issued by the Copyright Licensing Agency Ltd, 33-34 Alfred Place,
London, England WC1E 7DP. Applications for the copyright owner’s written
permission to reproduce any part of this publication should be addressed to the
publisher.
Warning: The doing of an unauthorised act in relation to a copyright work may
result in both a civil claim for damages and criminal prosecution.
© RBM Cotterrell 1989
Typeset by Kerrypress Ltd, Luton
Printed by Billing and Sons Ltd, Worcester
Preface
This book aims to survey key theoretical contributions to the field
of modern Anglo-American legal philosophy in order to outline
debates about the nature of law which these contributions have
provoked. In this sense it is intended as a general introduction
to central areas of modern legal theory. However, it attempts
something more than most such general introductions. It seeks to
put the debates in the literature into a broader context than that
in which they are usually presented in introductory texts. It is
intended not just as a survey of central areas of the field but also,
more specifically, as a discussion of what Anglo-American legal
philosophy, in some of its dominant forms, is and has been for.
This involves examining approaches to legal philosophy in Britain
and the United States in the light of conditions in which those
approaches have emerged since the beginnings of modern legal
professionalisation in both countries. I argue in these pages that
the succession of dominant approaches in Anglo-American legal
philosophy since the nineteenth century - the approaches which
today make up much of modern jurisprudence - can usefully be
understood, to a large extent, as responses to particular political
conditions and also, especially, conditions of legal professional
practice. Thus, the book suggests that this legal philosophical
literature has helped to reinforce views about the nature of law
which have seemed important for the legal professions’ status and
objectives at particular times. And this legal philosophy has also
had some political significance insofar as it has promoted, reinforced
or reflected wider currents of political thought. The professional
and political roles of what is often seen as an esoteric region of
legal thought and literature ought not to be exaggerated. But it
is important to bring those roles to light.
This perspective may provide a way of showing that debates
in jurisprudence which tend to be portrayed as timeless, and which
often seem interminable and incapable of resolution, are better
understood as reflecting specific responses in legal philosophy to
pressures, developments and conditions arising in particular times
and places. Viewed in this perspective, such matters as the
v
vi Preface
controversies around modern theories of sovereignty, the enduring
(but problematic) appeal of legal positivism in its various forms,
the ebb and flow of natural law theory and the character of certain
varieties of sceptical theory in legal philosophy, appear quite
differently from the way they usually appear in standard textbook
treatments. This book claims that the patchwork of philosophical
views of the nature of law contained in modern Anglo-American
jurisprudence can be understood as a response to social and political
change - but a response shaped substantially by perceived problems
arising in the professionalisation of legal practice.
Such an interpretation is used here as an organising framework
for an introduction to major theoretical orientations in the subject.
Is it justifiable, then, to offer, as such a framework, what can be
no more than a tentative sketch of a way of looking at this material?
I think it is. First, this approach can suggest a structure or unity
in much of the vast, unwieldy mass of modern theoretical literature
on law which is not necessarily otherwise readily apparent. Secondly,
the approach may reveal this literature as more vital and engaged
in the practical affairs of law in society than it has sometimes seemed
to be and, indeed, than it has often presented itself as being. The
development of modern legal philosophy - at least in part - has
been a kind of running commentary on the changing conditions
of law in Western societies. If a limited attempt is made to put
legal philosophy ‘in context’ - particularly by bringing to light
assumptions contained within it about the social, political and
professional environment of law - it may be possible to appreciate
that some of legal philosophy’s central issues and debates have
a broader significance (for both lawyers and ordinary citizens) than
is often assumed. Finally, the question of what is and what has
been central’ in this field might be clarified and even reshaped
by the kind of approach adopted here. Indeed, in the case of most
major writers considered in these pages the ‘contextual’ approach
encourages a somewhat different assessment from that which
represents the current orthodoxy.
No attempt at comprehensiveness is made here, even within the
particular range of subject-matter highlighted. The book examines
contributions to theory which have been very influential in legal
philosophy in the Anglo-American common law world in the period
of modern professionalisation of law. It seeks to identify the general
orientations of each of these contributions, especially in the light
of their professional and political relevance. It is concerned with
detailed exegesis only insofar as this throws light on the central
issues with which the book is concerned. Most of the theory
discussed is indigenous to Britain or the United States but notably
Preface vii
influential imports from elsewhere are included where a knowledge
of them seems essential in understanding Anglo-American
developments. Each contribution is discussed insofar as it offers
a theory of law, that is, insofar as it tries to clarify theoretically
the nature of law, laws, or legal institutions in general. This emphasis
makes it possible to focus consistently on what I take to be a
unifying thread running through much of the diverse literature of
modern jurisprudence (while in no way denying the wide variety
of intellectual aims attributable to the theorists whose work is
discussed in these pages).
I hope that the book as thus conceived will provide a useful
introduction to the areas of theory it surveys and, at the same
time, a distinctive view of them. I hope also that its discussions
show why this theory needs to be studied in the light of its
professional and political ramifications, and how such a contextual
approach - far from undermining or ‘explaining away’ in
reductionist fashion what it examines - can actually demonstrate
the enduring value of this material more clearly than can most
traditional approaches to the subject. Legal philosophy, like law
itself, reveals its full significance only when considered in social
and political context.
These aims dictate the relatively straightforward organisation of
chapters. Chapter 1 elaborates the approach underlying the work
as a whole. Each of Chapters 2 to 7 then deals with a particular
cluster of contributions to legal theory, setting the discussion in
the context of wider problems to which that theory can be seen
as, in part, a response. Thus, these chapters focus on material which
has had great historical prominence in legal scholarship, and also
retains major significance in present-day jurisprudence. The final
chapter offers, in the light of the discussion contained in the previous
chapters, an assessment of the present position and likely destiny
of the approaches to legal theory with which this book is concerned.
I am especially grateful to my friend and colleague Dr David
Nelken for reading and commenting on several sections of the
manuscript, and for the stimulus of many productive conversations
on questions of legal theory. Parts of this book were written while
I was visiting professor and Jay H. Brown Centennial Faculty Fellow
in Law at the University of Texas, during the Spring Semester
1989. I benefited greatly from the research facilities and the
experience of teaching jurisprudence in that environment, both of
which have contributed significantly to this book. I am also grateful
to Queen Mary College for a term’s sabbatical leave during the
early stages of research on the project; and to Dr. M. W. Bryan
of Queen Mary College and Professor W. C. Powers of the University
viii Preface
of Texas Law School who also read and commented on parts of
the manuscript in draft. Parts of Chapter 6 are adapted from an
article which I previously published in the 1987 volume of the
American Bar Foundation Research Journal (pp. 509-24). The A.
B. F.’s permission for reproduction of some passages from that
essay is gratefully acknowledged. Finally, I owe thanks to my
children for putting up stoically with the disruption to their lives
which is caused by other members of the family writing books;
and to my wife, Ann Cotterrell, for her constant support and
encouragement through the whole period of researching and writing
this volume.
Roger Cotterrell
Faculty of Laws
Queen Mary College London
June 1989
Contents
1. Legal Philosophy in Context 1
Jurisprudence, Legal Philosophy and Legal Theory 1
Legal Philosophy and Legal Practice 4
Justifying Normative Legal Theory 6
Unity and System in Law 9
Professionalisation and Politics 12
Legal Philosophy in Social and Political Context 14
How Should Legal Philosophy be Interpreted
Contextually? 17
2. The Theory of Common Law 21
The Character of Common L^w Thought 22
The Common Law Judge 2^f
Can Common Law Thought Explain Legal
Development? 26
Common Law and Legislation 30
The Political and Social Environment 33
Savigny: A Theory for Common Law? 37
Maine’s Historical Jurisprudence 41
Maine on Politics and Society 44
Historical Jurisprudence and the Legal Profession 47
The Fate of Maine’s New Science 49
3. Sovereign and Subject: Bentham and Austin 52
_The Empire of Darkness and the Region of Light 54
^Positive Law and Positive Morality i 57|
The Coercive Structure of a Law
Sanctions and Power Conferring Rmes 63
/Sovereignty 67
Some Characteristics of Austin’s Sovereign 69
Must the Sovereign be Legally Illimitable? >^72
if The Judge as Delegate of the Sovereign ..757
Austin’s Theory of the Centralised State 77
Austin and the Legal Profession 79
ix
X Contents
.
4 Analytical Jurisprudence and Liberal Democracy: Hart and
Kelsen 83
Empiricism and Conceptualism 85
Hart’s Linguistic Empiricism 87
The Character of Rule's 92
Sociological Drift 94
The Structure of a Legal System 96
The Existence of a Legal System 100
0 Hart’s Hermeneutics 101
^Judicial Decisions and the ‘Open Texture’ of Rules 103
Kelsen’s Conceptualism 106~
‘The Machine Now Runs By Itself 109
^Democracy and the Rule of Law 112
Conclusion 116
5. The Appeal of Natural Law 118
Legal Positivism and Natural Law 118
Is Natural Law Dead? 122
Natural Law and Legal Authority 125
The‘Rebirth’of Natural Law 127
^.^Anglo-American Lessons from the Nazi Era 129
The Ideal of Legality and the Existence of Law 132
A Purposive View of Law 136
Fuller and the Common Law Tradition 138
Politics and Professional Responsibility 142
Natural Law Tamed? 145
The Problem of the Creative Judge: Pound and Dworkin 150
pound’s Rejection of the Model of Rules 152
The Outlook of Sociological Jurisprudence 156
A Theory of Interests 159
The Search for a Measure of Values 162
The Wider Context of Pound’s Jurisprudence 164
(Dworkin and Pound '166
o
P’rr inciples and Policies'~<4T68
[TTVh e Closed World of Legal Interpretation 172
Politics, Professionalism and Interpretive
Communities 177
7. Varieties of Scepticism 182
Pragmatism and Realism 185
Realism and Normative Legal Theory 188
Llewellyn’s Constructive Doctrinal Realism 194
The Political Context of American Legal Realism 202