Review

Reviewed Work(s): Legal Philosophies by J. W. Harris

Review by: Philip Milton
Source: The Modern Law Review , Nov., 1981, Vol. 44, No. 6 (Nov., 1981), pp. 735-739
Published by: Wiley on behalf of the Modern Law Review

Stable URL: https://www.jstor.org/stable/1095043

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Nov. 1981] REVIEWS 735

argument between those who differ on fundamentals so "no." (I would,

for example, want to take issue with the kind of Marxist claim which denies
authenticity to the reasoning of those who suffer from " false consciousness,"
on the ground that it is patronisingly inhumane, and that historical experience
shows that it produces gross tyranny.) I accept that law is and always will be
needed to provide authoritative selections amongst alternative reasonable
solutions to the problems of justice, and that when it is so used it derives a
presumptive moral force from its basis in reason so " yes." But I am not at
present persuaded that there is this necessary derivation-connection between
reason and that central conception of " law " which, taking all jurisprudential
concerns into account, we should adopt so " no." If you find that sort of
equivocation unattractive, you had better read the book for yourself.
J. W. HARRIS

LEGAL PHILOSOPHIES. BY J. W. HARRIS. [London: Butterworths.

1980. X and 282 PP. £5 * 95.]
IN the 20 or so years since the publication of The Concept of Law ju
prudence has changed greatly. The two volumes of Oxford Essays in
Jurisprudence provide a good illustration of this: in the first (1961) the
topics covered possession, ownership, sovereignty, precedent, mens rea and
so on are those of traditional analytical jurisprudence; in the second (1973)
the centre of attention has become the positivistic theories of law of Hart,
Kelsen and their predecessors. The seventies saw another change: political
philosophy, moribund since the nineteenth century, underwent a revival in
the United States in the hands of Rawls, Nozick and others. Justice, once
neglected, became fashionable; and everyone began to take rights seriously.
These changes, while largely beneficial, created new problems, especially
at the level of undergraduate teaching. The older jurisprudence, though some-
times dull, was rarely diEcult; anyone in search of something really heavy
would have to go abroad to Hagerstrom or Kelsen. This gap has been filled
and we now have our own writers equally learned and opaque. The effect of
this is that jurisprudence is on the way to becoming a technical and esoteric
discipline comprehensible only to specialists and largely divorced from the
concerns of ordinary lawyers. Jurisprudence is being transformed into legal
philosophy.
In the old days jurisprudence was not really regarded as a philosophical
subject. One only has to look at a list of Hart's predecessors at Oxford to
see this. Jurisprudence was a legal subject and, like other legal subjects, was
taught from textbooks, single volume compendia, that contained between two
covers all or at least most that a student would be expected to learn for
encamination purposes. The quality of these books was uneven: sound enough
on legal questions, their occasional ventures into philosophy were usually
undistinguished and sometimes disastrous. Substantial parts of these books
would be devoted to what were called theories of law, under which heading
one would be likely to find a chapter on natural law, a chapter or two on
legal positivism, chapters on legal realism, historical jurisprudence, socioF
logical jurisprudence, Marsism and so on. These chapters would be further
subdivided so that, for example, the chapter on natural law would contain a
potted history of the idea from ancient Greece to the present day covered
at a rate of abcout one page per century.
It was against this background that The Concept of Law appeared. Here,
at last, was something different: a lucid and sustained argument, not a
collection of potted summaries and numbered points. The omission of these
was quite deliberate. " I ha^e also had a pedagogic aim," Hart wrote in the
Preface, " I hope that this arrangement may discourage the belief that a
book on legal theory is primarily a book from which one learns what other
books contain. So long as this belief is held by those who write, little progress

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736 THE MODERN LAW REVIEW [Vol. 44

will be made in the subject; and so long as it is held by those who read, the
educational value of the subject must remain very small."
Since then some; jurisprudence textbooks have disappeared, but others have
taken their place. It did not prove difficult to assimilate The Concept of
Law: all that was needed was a few more pages at the end of the chapter on
positivism, or perhaps a new chapter on Hart's coneept of law. The same has
happened to more recent contributions; and as a result textbooks have tended
to inerease in buLk. Lloyd's Introduction to Jurisprudence has doubled in
size in 20 years.
It will be apparent to anyone who has read this far that I have no
enthusiasm for the kind of jurisprudence textbook eurrently produeed. This is
not, I think, mere prejudiee. Anyone surveying the range of subjects taught
at a university will notice that it is only within certain areas the natural
sciences, mathematies, medicine, law-that textbocaks flourish. This is not
because of lack of enterprise on the part of authors or publishers. Textbooks
are only possible where there is an established and uncontroversial body of
learning which has to be mastered as a preliminary to more advanced study.
In such cireumstances what is required is not originality, but slcill in encposi-
tion.
Now in some subjects of which philosophy is pre-eminently one this state
of affairs does not exist. This has been a scandal for eenturies, and there is
no sign that it will end. Outside formal logic-a special ease no serious
philosopher would eontemplate writing a textbook. The would-be author of
a jurisprudenee textbook, therefore, falls back on providing accounts of what
this or that famous writer has said, interspersed with his own eomments.
One of the reasons for this unhappy state of affairs ean be found in the
way that jurisprudence is usually taught. The traditional picture, now slowly
ehanging, is that an undergraduate is introduced, often under eompulsion, to
jurisprudenee in his final year. He will have spent a large part of the
previous two years studying those blaek letter subjeets that the pro;fessions
require for e2cemptions. In doing so he will have mastered, to some degree,
a peculiar set of intellectual skills and techniques that concentrate on the
solution of specific practical problems by means of the application of the
relevant authorities. So long as jurisprudence consisted of the analysis of
general legal conceptions and a study of the sources of law, there was no
sharp division between it and other legal subjects. It was no more than the
general part of English law. Legal philosophy is quite different: cases are
cited, if at all, as examples rather than authorities; the lawyers' techniques
are inappropriate, and the law student has to start again. In such circum-
stances the popularity of textbooks is not diffcult to understand. Here, at
least, the student finds a body of material that can be, and all too often is,
reproduced in examinations. Jurisprudence, thus conceived, becomes the
study, not of a set of problems, but (usually at second or third hand) its own
literature.
Dr. Harris is aware of the problems that law students face when con-
fronted with jurisprudence for the first time, and he has written Lega!
Philosophies as an introduction which, he says in the Preface, "may help
to absorb the first shock." Its purpose is to give an " overview of the
terrain" before the student undertakes detailed study. With this aim in view
he has divided the book into 20 chapters each " designed, so far as is
possible, to stand on its own." Their average length, excluding biblio-
graphies, is about 12 pages, the longest (on Dworkin) being 19. The range
covered is unusually wide. wider (as the author remarks) than most single
courses. Despite its title this is really an introduction to jurisprudence. There
are chapters on statutory interpretation and precedent and three largely socioW
logical chapters that are out of place in a work on legal philosophy. The first
chapter, entitled " What is jurisprudence about?," illustrates the same point.
Natural law is a difficult topic on which to write: the primary sources are

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Nov. 1981] REVIEWS
737

long, difficult and often inaccessible; the secondary ones are all too often
superficial, erroneous or confused. Most textbook writers, when not giving
guided tours through the centuries, derive their picture of natural law from
nineteenth and twentieth century legal positivists. Dr. Harris's lS-page
account is a mixture of the bad old textbook story and a much better version
largely derived from Finnis. A number of important points are touched on
but not adequately developed. The discussion of Hume's is/ought argument
is an excample: there! is nol attempt to ascertain what Hume himself intended,
or to direct readers to where this has been examined; instead there is a
discussion of syllogistic inference which misses the point, for it did not need
Hume to point out that the syllogism on page 13 is invalid. Dr. Harris's
handling of primary sources is less than satisfactory. Aquinas is quoted on
pagef 9, but there is no indication of the work from which the quotations are
taken, only a couple of page references (one of which is incorrect) to
D'Entreves edition of his Political Writings. The full references are Summa
'Theologiae la, 2ae, 95, 2 and 2a, 2ae, 104, 6. Augustine's remark Remota
itaque justitia quid sunt regna nisi magna latrocinia is said on p. 8 to
come from Confessions IV. This is incorrect, the correct reference being De
Civitate Dei IV, iv. The same mistake appears in The Concept of Law (p.
1S2) from which I assume it has been derived, though there is no acknow-
ledgement. The bibliography at the end of the chapter contains too many
unreliable secondary sources and is weak on primary ones. It also fails to
mention Richard Tuck's valuable and scholarly Natural Rights Theories.
If the chapter on natural law is, in the main, unsatisfactory, those on
positivism are considerably better. There are two minor criticisms. To call
Bentham the founder of the command theory does not, I think, do justice to
Hobbes. There is very little on the predictive sanction analysis of duty; and
Hacker's article on this does not appear in the bibliography. Chapter 9 on
Hart's concept of law is brief, which is no bad thing, for The Concept of
Law, though it has its furry edges, is a work of great lucidity. Kelsen, how-
ever, lacked this quality; his numerous writings are tortuous, long-winded,
dogmatic and obscure. There is the further complication that over half a
century he elaborated successive versions of the Pure Theory that differed on
important points. For these reasons most undergraduates find him peculiarly
difflcult: he badly needs a good expositor. Given his self imposed limitations
of space-1S pages Dr. Harris does a good job. The concretisation of norms
is particularly well explained. I should have liked more on the Kantian back-
ground-what there is on page S9 is too brief to be very illuminating for if
this is not done the requirement that a theory of law should be pure appean
as an arbitraIy restriction, and the Grundnorrn wil] be regarded as a peculiar
German precursor to the rule of recognition. Conversely, the cases from
Rhodesia, Pakistan and Nigeria discussed on pages 71-73, though attracting
much academic comment, cannot of their very nature do much tol resolve
the issues.
Turning from the positivists to their most eloquent critic, Chapter 14 on
Dworkin's rights thesis is one of the best in the book. The various conten-
tions are clearly set out, and Dr. Harris makes some perceptive comments.
There is also a rather more derivative chapter on Fuller's The Morality of
Lclw.
Chapter 8 is on legal realism. Unfortunately, Dr. Harris follows the old
textbook tradition and subdivides the chapter into sections on American legal
realism and Scandinavian legal realism. I have always assumed that the mis-
conceived assimilation of these utterly diverse conceptions of law o-nly
happened because Alf Ross published in 1946 a book called Towards a
Realistic Jurisprudence; and the textbook writers, noticing that Llewellyn,
Frank and others had written about realism, assumed that they were all
talking about the same thing. It would be far better if only the Americans

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 738 THE MODERN LAW REVIEW [Vol. 44

were called legal realists they invented the term while the Scandinavians
could be called the Hagerstrom school.
Just as the positivists have misrepresented natural law by treating peripheral
maxims like " an unjust law is not a law " as central, so too they have taken
secondary elements in realism-rule-scepticism and the predictive analysis of
legal ralidity-as primary. Dr. Harris follows them and concentrates on these
dubious theses. The undergraduate reader, unless he goes to Twining'6
excellent book on Llewellyn or (better still) the realists themselves, will
receive an unbalanced impression.
The remainder c f the book includes three chapters on sociological and
anthropological themes (including six pages on Marxism); two chapters on
statutory interpretation and precedent; a good but diffi^cult chapter on
legal reasoning; a chapter on the analysis of legal concepts which is mostly
on Hohfeld; a chapter on justice (including six pages on Rawls and one on
Nozick); and chapters on liberty and the enforcement of morals, utili-
tarianism and the economic analysis of law, punishment, and the duty to
obey the law.
At the end af each chapter there are substantial bibliographies. The novice
reader for whom this book is written, may well find them daunting, both
because of their length the one on realism contains 45 entries and because
no advice is given on where to begin. Some kind of guidance is essential.
Despite this, the bibliographies will be of value both to students and to many
of their teachers.
One weakness of the book is that on philosophical, and especially logicaI,
questions Dr. Harris seems unsure of his ground. On page 13 there is a
confusion between propositions and assertions an error exposed by Frege-
and it is said that " only mathematical deductions from definitional axioms
meet the test of logical necessity." In the chapter on Dworkin (pp. 188-189)
we are! told that " empiricist sceptics " hold that propositions about " non-real
entities " can be neither true nor false. The example given is " the present
King of France is bald." There is some confusion here: this particular
example was invented by Russell (" On Denoting," Mind (1905)) who was
concerned to show that the proposition was false. In any case the question
has nothing whatever to do M ith either empiricism or scepticism.
I^here are a few small factual errors: Bentham's Introduction to the
Principles of Morals and Legislstion and Austin's T/le Province of Jurispru-
dence Determined were published in 1789 and 1832, not 1782 and 1833
(p. 25), and Montesquieu wrote De l'Esprit des Lois not Droits (p. 224). There
are some strange muddles about names: Marx appears twice in the biblio-
graphy on page 258 as H. K. Mars-he was Karl Heinrich - but in the text
and index is just plain Karl, Engels is called Friedrick in the indes and
Fredrich on page 251, F. A. Hayek also appears as F. A. Hayeck and H. A.
Hayek, and so on.
One of the reasons why so many beginners find jurisprudence so confusing
is that they lack (and are not given) any coherent view of the subject but
are confronted with a bewilclering and disjointed mass of thinkers, schools
and problems. It is a major fault of Legal PhilosopSlies that it does little to
remedy this. The author's intention of making the chapters self-contained,
and the fact that they are in no discernible order, makes this less a book
than a collection of short essays. Dr. Harris has been far too much influenced
by the textbook tradition with its obsession about covering the ground and
including everyone. There are many authors who survive, not so much alive
as undead, only in jurisprudence textbooks. What would be lost if they were
left out? The elimination of some defunct thinkers plus the deletion of the
three sociolo-gical chapters and the two on statutory interpretation and pre-
cedent, none of which belong in a book on legal philosophy, would, if the
space was allocated to the remaining topics, help ctlre another defect, namely

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Nov. 1981 ] REVIEWS 739

that the bk feels cramped. Nearly all the chapters are too short and the
introductory one four-and-a-half pages-is quite inadequate.
If Legal Philosophies has faults and blemishes, it would be ungenerous to
ignore its virtues. Dr. Harris writes clearly, his exegesis is usually lucid, and
his analysis and comments are often acute and perceptive. He never attempts
to impress his readers with pretentious irrelevance or spurious erudition.
Legal Phllosophies is too disconnected to make a good introduction; instead
it offers a brief but comprehensive guide to contemporary jurisprudence.
Published at a reasonable price in a sector of the market where it faces little
in the way of competition, it should become established as the leading intro
duction to the subject.
PRILIP MILTON

THE BRETHREN: INSIDE THE SUPREME COURT. B4Y BOB WOODWARD

and Scorr ARM STRONG [ Simon and Schuster. 1979. pp. 467.
Hardback $13.95; Paperback Avon $3.50.]
"WOULD you recommend yolur students to read The Brethren?," I asked
about a dozen law teachers on a recent visit to the United States. Only one
of them was unhesitatingly positive, but even he would warn them not to
believe the details. Four claimed not to have read it, three of them as an
indication of disapproval or disdain. All but two were so highly critical that
I inferred that their answers were also negative. Whether or not they had
read it, all held strong views about the book.
The Brethren claims our attention at a number of levels: as an inter-
national best seller about law; as a controversial study of the United States
Supreme Court; and as a phenomenon. The book is quite simply described:
it purports to be a description of " the inner workings " (p. xii) of the Supreme
Court from 1969 to 1976, the first seven years of the Chief Justiceship of
Warren E. Burger. It concentrates on the deliberations, exchanges between
justices, and the drafting arld redrafting of opinions in cases decided during
this period. A good deal of space is devoted to the activities of the clerks-
usually bright, recent law graduates who serve as personal assistants to
individual justices to the personal relations between the justices, to their
professional problems, thoughts and feelings, and to the day-to-day business
of the court. The process of appointment of foLur new justices is described
rather briefly. There are a few extracurricular anecdotes, but there is almost
nothing about the private lives of the justices apart from a painfully detaile,d
account of the last illness of Justice William O. Douglas, which conspicuo,usly
affected the work of the court.
The research and the manner of presentation are in the style of investiga-
tive journalism. The publishers hint that the book is a companion work to
Woodward and Bernstein's A 11 the President's Men. However, there is one
important difference: in the Watergate studies, Washington Post journalists
were out to expose a scandal and their actions had iimmediate political reper-
cussions. There is no suggestion that there were specific allegations or
suspicions to investigate in this instance. Rather the aim was to describe the
hidden ways of working of an important institution of government. In fact,
remarkably little muck was raked up. Although the book became an
immediate and highly controversial best seller, it has had almost no visible
political impact.
Perhaps the most striking feature of the book as a phenomenon is the
remarkable success of the investigators in securing interviews with informants
and in obtaining " thousands of pages of documents from the chalmbers of
eleven of the 12 Justices who served during the period 1969 to 1976" (p. xiv).
The main source of this material was 170 former law clerks, many of whom
must have breached both personal and professional confidences in the process

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