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    CH 1, Cotterrell, PoJ

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    CH 1, Cotterrell, PoJ

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    Chapter | Legal philosophy in context Most lawyers have litle difficulty in recognising ‘law’ as a clearly identifiable Feld, No deep reflection on the matter seems necessary. Treated asthe lawyer's practical ar or the special expertise of a legal profession, law seems an area of knowledge and practice with well understood unifying fearures and distinctive character. Tn normal conditions of professional practice, there may be no need t0 think systematically about the character of law-in-general of to ask bond questions bout the narute of legal institutions Ir may well seem enough that dhe lawyer hus the expertise to deal with particular problems in hand, can find and interpret the specifi areas of legal doctrine ~ rules, principles and concepts of law — needed to answer those problems, and has the ‘know-how ro be able to ‘recognise and use appropriate procedures and channels of influence to harness the leal resources of the sate to clients interests. Given the complesities of law and regulation, this kind of understanding of law may seem as much as anyone could reasonably ask of a legal specialist In Practice, the particular, the specific and the appropriate are what count. Juri rudence, legal philosophy and legal theory However, che legal realm can be looked at in ways that go beyond the immediacies of pro aw is assumed to be socially significant, sional practice. although the nature ofthis significance, and whackinds of study can best reveal ti ae always controversial matters. Law has long been thought worth studying, frits intrinsic philosophical or social interes and importance, which relates to bbut extends beyond its immediate instrumental value or professional relevance In this sense, lw is ‘a great anthropological document’ (Holmes 1899: 44). In the Anglo-American word the erm most often usd to refer tothe whole range of inquires concerned with sis br Jeisphidence is not united by par Je perspectives ofthe various social and buuman sciences and of many kinds of philosophy, as wells other intellect ier significance of law is jeri. HOGS OF PERPECTITES includes work grounded in the div Jurisprudence is probably best defined negatively as encompassing al kinds of ‘ener intellectual inquires about law that are not confined solely to doctrinal ‘exegesis or technical prescription. The qualfieation general is important. If jurispradencers unifieTaallitisby a concern with theoretical generalisation, in contrast to the emphasis on the particular and the immediate that characters ‘most professional legal practic. So ithas been of lawasa it tes jurspradence Remy within a conception of some overall dscipinar unity of law: Given the diversity of law and legal activity and the sh d types of inquiry that can be included in jurisprudence, this clscipinary unity may be a hypothesis to be examined rather than a postulate theoretical par scribed a th dsiline (Tsing 184), Bursucha view is conrToversialinsofaras be assumed (Corterell 1995: ch 3), ‘The unwieldy caegory of jurisprudence ean be broken down into more sophical speculation (ather than empirical. baseSO@al-ciemfc theory) on specie elds of inguin. For example, ppl eneompase al phil those associated with sociology of la) which would be a part of fur dene, as defined above Insofar as philosophy examines the conceptual apparatuses by which human ‘experience is interpreted, legal philosophy’ main focus is on clarifying or analysing he ideas or Stuctures of reasoning implicated in, presupposed by developed through legal doctrine, or which constitute the environme ‘thoughtand belief in terms of which legal processes ae justified and explained. Itis not concerned with the empirical inquiries about law's social effects and about leg philosophical inquiry cannot be clearly demarcated from the kind of concep tual inquiries with which sociology of law is concerned. The difference is behaviour thatare-parwed-sociological studies of law. But legal primarily one of emphasis. In legal philosophy gencrlly, conceptual clarifc: tion tends to be treated as much more important than — and someuimes Jurisprudence, legal philosophy and legal theory 3 fees concepeval structures i always to be undertaken only in relation to this cenpircal analysis. hoy Like the ters jurisprudence and legal philosophy, this sniformly by all writers, Buc here itcan be taken to mean theoret the nature of lave laws of legal stitutions in general ose parts of legal philosophy concerned primarily with then justin OF particular aims. polices Tegal theory does not directly address, for example, the nature of justice as a lated coor expressed in legal doc ‘general concept, the philosophical justification of particular legal or govern ‘mental policies in elation to morally controversial matters (such as abortion) orthe general question of how farthe enforcement of moral principles as such | is an appropriate task of contemporary criminal lave Legal theory aims to understand systematically the nature of law as a social phenomenon, Whiley philosophical justifications of particular aims or tasks of law are not intelevant| tothisconceen (and may follow dire from certain types of legal theory, such | 2s natural law theory, they are not cental toi Jc flows fom this defnkion of lal theory that both legal philosophy and | secoiogy of law conte the ltrin ways hat are beyond the scope this book (cf Cotterrell 1992). For convenience, 1 term legal philosophy’s ' conerbions ro lea theory anata Consinaions 10 it empiri! aa! thor Jost a8 the distinction between lp Blilosophy’s concep inqunes ATT 2mate of emphasis than of rigid demarcation, so the same is tue of these So kinds of lyal theory. The fllovinctaers wll be concerned, however, ‘only with those parts of the literature of legal philosophy that have sought to Consibute to legal theory an, in doing theory and sociology of law's hose of sociology of law is often more 0, have powerfully influenced ¢ ‘tape and outlook of modern Anglo-American jurisprudence, So this book’s ‘us is on the development of normative legal theory in this particule 1B op nstton” T mean here patems of offic acton and expectations of action Seed around the cron, apliati and enforcement of legal preceps orth Eaisance ofa egal ener. More gel this ok the ed stint the see OF soi inst Pe ‘efes 10a stem of patened expections abou the hchiviour of 4 Legal piloopby in context Legal philosophy and legal practice Since th 196, Anglo-American leg phlsopy bassacaghnedia hic mie pilonoply in vaous way Festi has been develope wanes extent than previously by schol whose themselves a ong dela allegiance to academic philosophy, ot ual alliance to law and philosophy, tather than to law Second issues and modes of inquiry in legal philosophy have bbe increasingly influenced by the wider disciplinary concer of philosopiy sather than by issues close to the concerns of legal practice. But despite these developments, legal philosophy, in modern times in the Angio-Am context, has always been an enterprise pursued primarily by lawyers w tle that today would pass for professional philosophical training Indeed, it may he more appropriate to refer to them generally as jurists rather chan lepa philosophers, as legal scholars with a speculative concern rather than members of any branch of a philosophical establishment ‘There is something puzzling about this state of affairs What have these speculating jurists whose work makes up much, nodern jurisprudence, seen asthe ole? What has been legal philosophy's function? What i its status as an intellectual field in relation to other such Feds and in relation to che lawyer’ professional knowledge of law? Clear answers to these questions would help in understanding the nature and significance of disputes in the literature of jurisprudence or legal philosophy ‘Yer, very rarely are convincing answers given in general texts on jurisprudence In this book, in consider some areas of legal philosophy that dominate the Jterarure of modern jurisprudence, it will be necessary t0 try to assess legal Philosophy’s contribution to the wider world of politcal and legal activities - including especialy the professional practice of law as it has developed since the mid-nineteenth century through the petiod during which most of the theoretical contributions discussed in chs book were made Where could we begin to look for answers? Some relationships beswe conceptual inquires in legal philosophy and the concerns of professional legal practice seem obvious. The everyday notions that lawyers use include such concepts a8 justice, responsbily, obligation, rights and duties, causation, validity, ownership, possession, personality ~ all pregnant with philosophical complexities and wide social significance. Insofar as legal philosophy focusses attention on these kinds of concepts as they elate to sett have to play role, it seems merelya more general version in which lawyers ‘what lawyers doin ceverylay practice in interpreting legal doctrine Farther, concern to identify conceptual inguiis in jurisprudence specially with issues relevant to professional legal practice may underlie the temps by Legal philorpy and legal practice 5 philosophy, So Julius sto distance jurisprudence from (academi come writers to distance jury a losophy, and that jurisprudence’ classifications are acceptable tothe extent (On the other hand, this legal professional constituency has long distrusted f ot necessarily all oF chem (ef rary aspects of the jurisprudential enterprise, ifn! r Cohen 1933: 327). Even conceptual clasficaon in legal philosophy may not he salud highly by those concerned with the practice of law, and sound reasons cane constructed in defence ofthis atiude. Fist, mach legal practice does not involve issues of doctrinal interpretation of suffice depth to lead the lawyer into philosophical thickets. The conceptual pales of legal philosophy, insofar as they deal with issues of immediate practial significance, are usually puzzles for appellate courts, not for most office lawyers of trial judges. Isues of everyday practice are more often strategie or tactical chan conceptual, routine rather than innovative, issues of fact rather than of lav; and matters of care and comp doctrinal creativity. But this is not always so and some forms of legal practice rence rather than of undoubtedly require high levels of conceptual ingenuity and theoretical imagination. Second, more fundames an be made, Surely contemporary Western tl poine lav by its nature, does not lend itself to broad conceptual generalisation? Ie seems to be a mass of technicalities in no way unified by broad principle or philosophically coherent concepts. ersinty, lawyers seek rationality abil nd system in legal doctrine. Indeed, their to interpret that doctrine and predic: the outcome of ligation or the Affects of legal documents nd transactions depends on this, But the rationality BF contemporary law is a piecemeal rationality. Legal doctrine has to be Druanised,systematised and generalised just enough to meet the needs of the moment. Concepts ae used pragmatically and not necessarily with any concern ‘or broad consistency of meaning, In complex contemporary legal systems in ‘hich legal doctrine rapidly changes, doctrinal sytem andl order are continually ‘ated and re-created, as far as possible, to meet practical professional needs, Gonceprual clarity is produced (if at all) with the knowledge that it can be only Frovisiona vad unl the next input of new doctrine fom legsaton, judicial “sions or administrative rule-making ah e These conditions of legal practice ate not new, although the complexity and Seale of contemporary regulation has greatly increased, ‘They certainly raise SS 6 Lege philosophy in context doubts, however, as to why legal philosophy should be thought significant for the professional world of law: It seems necessaty to look elsewhere for the functions legal philosophy has fulfilled, at last in its contributions to ley theory unless we are t0 conclude thae it has served no functions in the wider world of legal activities, c, however, it would sill be necessary to explain why 2 immense modemn literature of the kind consideted inthis book exists, and why some of it has had great impact on discussion and opinion among legal and political el It would also be necessary to explain why legal philosophy’s contributions to modern legal theory have been predominantly contributions by lawyers addressed mainly t0 lawyers, Despite jurisprudence’s ostensibly broad, open perspective, the part of it to be considered here has been very ‘much a lawyer’ enterprise. Its whole intellectual organisation has presupposed ‘single commonity in which legal practitioners and egal theorists are members Justifying normative legal theory ‘The justifications that Anglo-American jurists have given for their work in normative legal theory often emph Jeremy Bentham, the English legal ‘scence of law which would provide a secure Benth ‘emphasis on legal theory’s systematising task ~ making sense of the chaotic ise its practical role in improving law, For former, thiskind of theory was centel adation for rational reform. m’ less radical follower John Austin, ike many later waiters, put more jumble of legal materials ~ and its educational value in providing a'‘map of the Taw =a a (Avstin 188% -work on which the detail of legal technicality could be arranged 1082). For the American theorists Roscoe Pound and Oliver Wendell Holmes legal {theory could be justified in even more explicitly instrumental terms. Pound fefers tots moder tsk as facilitating socal engineering through law with che juss cast inthe role of expert in fur and efficent governmental and judicial decision-making (see Chapcer 6). For Holmes, the engineering analogy gives ‘ay toan architectural one Theory is the most important pat ofthe. the law as the architect is the most important man who takes pact inthe building of a house’ (Holmes 1997: 1008}. Theory is the ally of the Scienifcaly-minded lawyer engaged in ‘the eternal pursuit ofthe more exact the establishment of laws (Holmes 1899: 452,455) ogmaof ciples ‘upon accurately measured social desires onald Dworkin, one of the most influential contempo legal philosophers sces egattheory as justifying law and so guiding and supporting judges inthe Jastfging normative legal theory 1 interpretation: Ifa theory of law is to provide a bass for judicial kof ls dary then the principles it sets out must try to jutfy che setled rules by Jenifjing the political or moral concems and traditions of the commanity the lawyer whose theory iti, do in fact support the emphasis in original) which, in the opinion 0 tales’ (Dworkin 1977: 6 Fria are moe bigot insering pac denice bing adr inlecnaljasiexions For oth te Engin ait HLA Hart E

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