What's Wrong with Jurisprudence? Part II at Law & Society Blog

What’s Wrong with Jurisprudence? Part II

Published by Nico Artzi September 21st, 2005 in Jurisprudence

An earlier entry of mine in this blog ǃ� meant to provoke a discussion rather than to “argueǃ? a point ǃ� has resulted in some interesting responses. I wish particularly to address the opening remark in Dennis Patterson’s response who notes that:

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.

Indeed, my tongue-in-cheek entry addressed contemporary analytic legal philosophy (say, the past 15 years or so) only. I agree that Hart was actually on the right track. Famously (or notoriously), he characterized The Concept of Law as a work of ǃ�descriptive jurisprudence.’ Unfortunately, he never quite elaborated on what he meant. Among the critiques of Hart’s descriptive/sociological approach is Roger Cotterrell’s:

[Hart’s theory] is, it must be said, not descriptive sociologyǃ? which should presumably be based in substantial empirical study. It is speculative philosophy not grounded in any consideration of actual social conditionsǃ? this should involve actually finding out how people talk and think and such an inquiry is not normative legal theory but sociology or social psychology.ǃ?

And Brian Leiter, who wrote that giving an account of any social fact that is the basis of the concept of law

would require jurisprudence to get up from the armchair and find out what anthropologists, sociologists, psychologists and others can tell us about the social practices in and around law.

However, it seems like attempts to do so are encountered by the group of ǃ�analytic’ legal philosophers as doing something other than legal philosophy. Those engaged in such endeavours must attend different conferences, publish in different journals and volumes, and compete for different academic posts.

Of course, some of those engaged in “finding out how people talk and thinkǃ? about the law are engaged in something other than legal philosophy. But here is my pet peeve: social philosophy, the various abstract explanations of how social reality is constructed (e.g., Habermas’s Communicative Action theory (-the more sociological, rather than political-philosophical, aspect of his theory)), can help explain not only what law is but also what the concept of law is as a concept different than the concept of “whiteǃ? or of “tableǃ? or of “goodness.ǃ? To help think about the concept of the concept, if you will, in the context of law. This is analytic legal philosophy of the first order and an engagement with the empirical reality of law.

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3 Responses to “What’s Wrong with Jurisprudence? Part II”

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1 Dennis Patterson Sep 24th, 2005 at 7:42 am

In Nico’s “earlier effort,” the following claim is central: “For reasons that have to do with the history and sociology of ideas ǃ� not substantive reasons ǃ� jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers.” I offered 2 counterexamples to this claim. The first was the work of HLA Hart; the second, that of Jules Coleman (as an exemplar of the sort of work I myself and my contemporaries engage in). Nico claims that his earlier “tongue-in-cheek entry addressed contemporary analytic legal philosophy (say, the past 15 years or so) only.” 2 points. First, nothing in the earlier entry limited the scope of the comment in the way he now describes it. Second, even if it did, Coleman is a counterexample and, interestingly, Nico never responds to the counterexample. Be that as it may, Nico seems to have shifted the object of his comments from a spurious claim about moral philosophy to the need to do sociology if one is to engage in philosophy (I am employing Davidsonian charity here). We get to the heart of the matter in the final paragraph of Nico’s second post, wherein he states that the kind of work he applauds (Habermas is given as an example) “can help explain not only what law is but also what the concept of law is as a concept different than the concept of “whiteǃ? or of “tableǃ? or of “goodness.ǃ? This is where the action is, but not in the way Nico imagines. Nico’s complaint seems to be that analytic legal philosophers don’t do philosophy in the manner of Habermas because they fail to incorporate sociology into their analysis. This is a claim that requires an argument. None is provided but one could be. How about it Nico: do you have an argument? How about an example of sociological/philosophical analysis that - owing to its sociological component - does a better job than a straightforward analytic legal philosopher might?
2 Gary E. Davis Sep 24th, 2005 at 8:13 pm

As a Habermasian, I-and some others in the academic community-would be very interested to see “Nico Artzi” well employ Habermas’ work here.
3 Neo-formalist wannabe Sep 27th, 2005 at 2:08 pm

I confess that I am not quite sure who Nico is responding to. His description of legal philosophy as obsessed with moral philosophy seems to apply mainly to Dworkin and his (remarkably small) body of disciples. It seems to me that Patterson is spot on with regard to the vast swath of most analytic philosophy of law.

Furthermore, at least in the area of private law, it seems to me that some of the very best work — such as that of Coleman or Jody Kraus — rather explicitly seeks to engage economic theories of law. Furthermore, the days when the philosophical analysis of law and economics consisted of jeremiads against Jeremey Bentham recylced by inserting Richard Posner’s name in place of Benthams are blessedly passed. In other words, it seems to me that analytic philosophers of law are engaging “social philosophy,” they simply aren’t engaging the rather fuzzy and dense form of social philosophy represented by Habermas and other continental social theorists.