What’s wrong with Jurisprudence?
Published by Nico Artzi September 15th, 2005 in JurisprudenceEven jurisprudes (analytic legal philosophers), in addition to other legal theorists, are coming to the slow and painful realization that something has gone terribly wrong in legal philosophy. Anglo-American legal philosophy is littered with circular, repetitive and quite esoteric discussions. Things have gotten so bad that some recent articles have resorted to personal attacks. (For example, Ronald Dworkin’s “Thirty Years Onǃ? and Brian Leiter’s “The End Of Empire.ǃ?) One is reminded of Henry Kissinger’s statement that the battles in academia are so bitter because the stakes are so low. Or are they?
Battles in academia are battles about ideas. Actions, such as waging wars against other nations, are taken based on ideas. Inventions are possible because someone has a new idea. Friendships and personal animosities are fueled by similarities or dissimilarities of ideas. It is therefore a matter of general concern to legal theorists and practitioners alike when legal philosophy ÇƒÏ a branch of philosophy, the “queen of disciplinesǃ?ÇƒÏ becomes a profoundly misguided discourse.
Legal philosophers are starting to identify the maladies of their field. For example, Brian Leiter rightly points out that:
“The real worry about jurisprudence… [is] that it relies on two central argumentative devices - analyses of concepts and appeals to intuition - that are epistemologically bankrupt.ǃ?
The problem, I fear, is more extensive. As observations of the communicative action of any conference in legal philosophy betray, jurisprudes have been devoutly monotheistic, worshiping a single god: the god of moral philosophy. For reasons that have to do with the history and sociology of ideas ÇƒÏ not substantive reasons ÇƒÏ jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers. Many seem to be attached to the belief that legal philosophy ÇƒÏ a philosophy of a social phenomenon ÇƒÏ can be produced using the same ǃÚmethodologies’ as those of moral philosophy.
This inferiority complex has lead to a systematic exclusion of those relating questions about the nature and the concept of law to branches of philosophy other than moral philosophy. For example, while political philosophy is considered an acceptable, albeit vaguely inferior, mooring field other branches of philosophy are practically absent from the discourse. Most notably, social philosophy. Needless to say that non-philosophical theorizing is completely out of the question. While jurisprudes are increasingly recognizing the deficiencies and confusions of their so-called ǃÚmethodologies’ they are nonetheless united in their commitment to fight off any attempt to look to other disciplines for methodological, and substantive, guidance. Is it really so surprising that the incestuous in-breeding that characterizes the field begets little monsters?
Dworkin has observed that:
“[Positivists] teach courses limited to “legal philosophy” or analytic jurisprudence in which they distinguish and compare different contemporary versions of positivism, they attend conferences dedicated to those subjects, and they comment on each other’s orthodoxies and heresies in the most minute detail in their own dedicated journals.ǃ?
Dworkin fails to acknowledge that the problem is not unique to positivists, it is prevalent among most, if not all, of analytic jurisprudence. But Dworkin is right in making the point that the problem is with the scholars and their discursive practices not with jurisprudence as such. While it is becoming increasingly en vogue to bemoan the death of jurisprudence, the problem is with the communicative action, the pattered interactions of the field: the exclusion of those who engage in philosophy other than moral (or political) from the conferences, syllabi, journals and teaching posts, and the absolute abhorrence of interdisciplinarianism.
But philosophy has been around for millennia and legal philosophy will withstand the current exclusionary practices of the philosophers. The queen is dead. Long live the queen!
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3 Responses to “What’s wrong with Jurisprudence?”
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Thank you for writing this. I work in the philosohpy of law (for the time being) and have waited long for someone to write something like this - I think you should write an academic piece (or maybe you already have?). Do let me know if you do. Cheers, S.
With all due respect, this attack on analytic jurisprudence is a bit muddled. The primary claim seems to be that the central “problem” of analytic jurisprudence is worship of “the god of moral philosophy.” Anyone familiar with, say, HLA Hart’s book *The Concept of Law* could hardly characterize the book as preoccupied with the methodology of moral philosophy. How, if at all, is Hart’s distinction between Primary and Secondary Rules taken from moral philosophy (hint: it isn’t)? Does Hart’s attack on Austin’s account of law proceed from moral philosophy? No, it does not. And is Hart’s account of adjudication in Chapter 7 of *Concept* based in the least on anything drawn from moral philosophy? No, it is not. And when leading contemporary legal philosophers like Jules Coleman turn to Sellars and Bratman (neither a moral philosopher) for analytic tools to enhance their accounts of law, Mr. Artzi’s critique has no account of this. Analytic philosophy may be in a state of ill health. If it is, worship of the methods of moral philosophers is not the cause.
This also seems wrong to me, at least in the case of several seemingly paradigm cases of contemporary jurisprudence. Leiter, for example, makes heavy use of positive political science and psychology in arguing for his “naturalized” jurisprudence. Brian Bix, Timmothy Endicotte, and others make use of large parts of the philosophy of language that can’t be called moral philosophy by any means. Claire Finkelstein has made use of work by Bratman and general rational choice theory, and so on. So, at least this seems to over-state things pretty seriously.