No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 16 January 2009
This article is intended to supplement another article, but it is hoped that it may be capable of standing on its own legs. The other article referred to is that entitled “The Concept of a Philosophical Jurisprudence,” by Professor Michael Oakeshott, which appeared in the now extinct journal “Politica” in September and December 1938. The point in that article at which the present article may be appended occurs on p. 350 in the December number (Vol. III, No. 14), where Professor Oakeshott distinguishes two inseparable stages in the process of philosophical inquiry. “First, there is the identification, the mere designation of the subject of enquiry. If we are to determine the meaning of the concept ‘law,’ we must know how to apply the word ‘law.’ And this is to be learnt only by a critical examination of the ways in which the word is ordinarily used. But such an examination leaves us with merely the definition of a word, leaves us merely with the identification of a thing. We have that one thing clearly before us, but we have nothing else; we have the text, but its full meaning is still to seek.” The exploration of this full meaning, of the “context” in which the thing law stands as “text,” is for Professor Oakeshott the second stage in the inquiry which ends with the establishment of a philosophical concept of law—and he has offered guidance of the greatest value to all explorers. This article, however, will be concerned only with the method of obtaining the “text” from which that exploration may begin. It is suggested that it is a particular method of obtaining this “text” which constitutes the distinctive characteristic of a lawyer's jurisprudence.
1 The Province and Function of Law, at p. 25. “Jurisprudence… is the lawyer's extraversion.” The main, and serious, defect in Professor Stone's otherwise admirable work is that this view leads him to neglect the problem of defining law and to misconceive the role of logic in any—and particularly in Austin's—jurisprudence. See infra, note 5.
2 Thus it is no part of a lawyer's jurisprudence to establish a general concept of law which is illustrated by all the various ways in which the term law has been applied. There may be no such concept discoverable. It is only directly concerned, at most, with the ways in which the term has been applied in legal theory. This term, “Legal Theory,” has recently become a fashionable substitute for “Jurisprudence,” perhaps because it furnishes a good excuse for the inclusion of theories of justice. But it furnishes no excuse for treating different theories about how the terms law and justice are or have been applied, or are best applied, as if they were merely different theories about the “nature” of the same immutable things, Law and Justice. Yet this confusion seems to persist.
3 Thus Austin rather quaintly says that declaratory laws, repealing laws, and laws of imperfect obligation, though not laws properly so called, are “appropriate subjects of jurisprudence.” Austin's Jurisprudence, 1885, at p. 214.
4 It is also, rather more explicitly, the method adopted in Kelsen's General Theory of Law and the State, 1946.Google Scholar
5 Three of the types of logical relation employed in Jurisprudence need to be carefully distinguished:—(a) the dependence of particular rules upon general principles from which they may be deduced; (b) the dependence of rules on sources, from which their authority is derived; (c) the dependence of “fundamental conceptions” on the concept of law, which may be made to yield them by analysis and other forms of logical manipulation.
Austin made use of all three types of relation and grossly exaggerated the role of the first in the English legal system. Kelsen correctly emphasises the use made of the second in all legal systems. It is the purpose of this article to stress the role of the third in Jurisprudence. Professor Stone fails to make clear the difference between these three types of logical relation, and it is submitted that this leads him to an inadequate appreciation of Austin. See also infra, note 11.
6 I.e., things whose mode of existence is in the empirically verifiable realm of being rather than in the transcendental realm of absolute values, validity, “ought,” or obligation. This is at least true of the positivist and empirical tradition characteristic of Anglo-Saxon thought about law. But the reverse is the case wherever terms corresponding to the Anglo-Saxon “right” (e.g., Recht, droit) are used in expressing the basic concept of Jurisprudence. Hence the long metaphysical, naturalist and idealistic tradition in continental thought. Kelsen's bold and ingenious attempt to bridge the gulf between the two realms (and two traditions of thought) can hardly be understood without appreciating the difficulties and problems presented by the traditional associations of the linguistic medium in which he worked. His compromise solution is to reduce, in theory, the realm of legal “validity” to mere logical dependence on a freely and subjectively accepted postulate—and to select, in practice, as his basic postulate that principle which will best allow him to interpret the vast majority of the facts of physical compulsion in an ordered society as being in confirmity with legal norms. On these lines he seeks to assert the simultaneous “positivity” and “validity” of legal rules—but can only avoid identifying might and right (a dominant purpose he shares with Roussean) by insisting on the “pure” or “non-moral” implication of his theory. But this involves him in paying merely verbal allegiance to the Greek and European tradition in which he seeks to remain—the tradition that the theory of law is concerned with values, “valid norms” or the realm of the “Sollen.” A lawyer's jurisprudence sees the significance of this tradition in its effect on the actual contents of legal systems.
7 Among such attempts must be counted the present writer's suggestions in this journal, Vol. 10, No. 3, 1950, at p. 431.
8 These are “unnecessary” or variable concepts depending on the content of actual legal systems as opposed to those “necessary” and unvarying concepts, the “fundamental legal conceptions” depending on the nature (or, more accurately the definition) of law. It is the distinction, stressed by Felix Somlo in his “Juristische Grundlehre,” between concepts depending on “Rechtsin-halt” and those depending on “Rechtswesen.”
9 It will be noted that these conceptions will ultimately result from logical analysis and manipulation of the concept of law, and not, like Hohfeld's “fundamental conceptions” from what purports to be an empirical examination of legal material. Hohfeld's work is in fact based on an examination of the different meanings given to the word “right” in legal norms. It would be surprising if this could result in a scheme which was both accurate and neatly logical.
10 Its results may be compared with those achieved by Professor Allen, who adopts a similar method, but employs totally different presuppositions. See “Jurisprudence, What and Why” in Legal Duties, at p. 19.
11 Thus the field of general jurisprudence is limited to basic notions and distinctions, which may be the “principia” of Jurisprudence, but are not principles in the usual legal sense. Austin includes principles (op. cit., at p. 1072) but does not actually give any examples of them. Some of his distinctions are not in fact basic, but merely possible distinctions dependent on principles (e.g., in rem and in personam as applied to rights). So too, it follows, are some of his notions, which, inasmuch as they apply to facts involving sanctions, are merely disguised principles (e.g., crime and cort). On the other hand Austin may have been wiser than he knew when he said that elements which may be esteemed necessary are such that “we cannot imagine coberently a system of law without conceiving them as constituent parts of it” (p. 1073). This is precisely because they are included, by definition, in the concept of law—and it is the justification for including them in it. The passage quoted above is misleadingly reproduced in Stone, op. cit., at p. 68.
12 These notions are, of course, disguised principles, to which they are logically equivalent. (See note 11, supra.) Thus to say that a legal system recognises the notion of contract is to say that it recognises the principle that certain agreements will be enforced.
13 Legal Philosophy from Plato to Hegel. By Cairns, Huntington, at p. 5.Google Scholar
14 It may perhaps be helpful to anticipate a little and to say that the final definition will be an elaboration of the following formula:—
“Law or a legal system is any continuing state of affairs which is, and may be interpreted as, a functioning system, pattern or process centering round the reasonably predictable activities of a specified court or system of courts—and is such that its description, with a high degree of accuracy, may include an infinite number of empirically verifiable propositions relating possible fact situations to probable court reactions with respect to the authorisation of sanctions (rules of substantive law).” In the above definition the words “affairs… as” inclusive may be replaced by the words “the Universe, in the aspect it presents when seen as.”
15 Acknowledgment must be made to Kelsen for the borrowing of the notion of a “juristic formulation.” But whereas Kelsen formulates the “legal rule” (or “rule of law”) in propositions of the form “if situation of fact X then the court ought to apply sanction Y.” the present write: adopts the form “if situation of fact X then the court will probably authorise the application of sanction Y.” The grammatical form of a legal norm is of course the form in which it is recorded. Legal norms may, however, be reformulated in the logical form of legal rules, without changing the essential core of their meaning for the jurist.
16 See the present writer's article in this journal, Vol. 2, No. 1, 1951, at p. 32, note 3. The definition of law given on p. 32 has now, however, been slightly modified. See supra, note 11.
17 Thus, for Professor Jerome Hall, facts are characterised as legal when they are “viewed in relation to a distinctive structure of thought (the legal rules).” (Living Law of Democratic Society, 1950, at p. 122Google Scholar). By legal rules Professor Hall means what the writer calls legal norms. But in the view here put forward facts become legal when they are involved in a distinctive structure of thought—legal thought—which relates possible facts to probable sanctions, and states its conclusions in propositions called legal rules.
18 There seems to be little advantage in the pre-supposition that a norm, in order to have the character of law, must be in general terms. But there are very good reasons why the vast majority of legal norms should be so.
19 Most theories of law are explanations of legal norms in terms of a single externally related factor deemed to be fundamental. But if they start from different definitions of legal norms they may not, of course, be explaining precisely the same things. See note 2, supra.