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The Concept of a Lawyer's Jurisprudence
Published online by Cambridge University Press: 16 January 2009
Extract
The argument of the preceding part of this article has progressed as follows. Jurisprudence, it has been contended, is thought about law, including analysis of its internal structure and exploration of its external relations. Only confusion results, however, in the absence of a preliminary indication, with some degree of precision, of the subject-matter to which the term “law” is to be applied. Jurisprudence cannot presuppose, but must begin with, a definition of the term “law.” The distinctive characteristic of a lawyer's jurisprudence is the criterion it adopts in framing such a definition. This, it has been suggested, is utility to lawyers, a specialised professional group whose specific interests and experience differ from those of citizens, politicians, sociologists, philosophers, or whom you will. In particular a lawyer's concept of law should be judged by its power of ordering, conceptually, the elements of the lawyer's professional experience. The best definition will be that whose analysis displays the maximum degree of coherence to be found amongst the largest number of the most important elements in that experience.
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- Copyright © Cambridge Law Journal and Contributors 1953
References
1 Here the writer is in mere verbal disagreement with Professor Buckland when he says of Austin's first collected lectures “It is an exposition of the notions about which we must clear our minds before embarking on Jurisprudence itself.” “Some Reflections on Jurisprudence,” Cambridge, 1945, at vii.
2 The writer's indebtedness to A. N. Whitehead for the notions of “process” and “unit event” will be apparent.
3 Except in the case where there is no ascertainable balance of probability as between the alternatives of sanction and no sanction. This case, where it would normally be said that the law was not clear, is the only one where, on the writer's theory, it is permissible to say that there is no law in existence on a particular point. On this view it would be logical for a court to decline jurisdiction on the ground that there was no legal norm appropriate to the facts before them. But it must be noted that this would not be to say that, according to the law, the case was non-justiciable. Such a statement would be equivalent to saying that each party had a legal liberty to do what in fact they had done, and that the effect of the legal position was that a practical solution of the conflict must be sought outside the courts. This position is theoretically quite different from the above-mentioned refusal to declare the legal position on the ground that there is in fact no legal position to declare. Legal systems are normally devised so as to prevent this logically possible position from arising (e.g., by giving residuary legislative functions to the courts). If they were not so devised the functioning of such systems would become analogous to the functioning of a heart which occasionally missed a beat—and would risk like attendant dangers.
4 “A Restatement of Hohfield,” 51 H.L.R. 1145.
5 Oxford University Press, 1950.
6 “The Concept of Mind,” Hutchinson's University Library, 1949Google Scholar, Chap. V.
7 “Toward a General Theory of Action,” Parsons, and Shils, (Editors). Harvard University Press, 1951.CrossRefGoogle Scholar Part I, Chap. II. “Some Observations on Theory in the Social Sciences.”
8 “Principia Sociologica” in the British Journal of Sociology, Vol. III, No. 3, Sept., 1952, at pp. 220 and 206–7.Google Scholar
9 It is difficult to avoid confusion between two distinct abstractions which are involved. Thus each concrete legal system embodies the abstraction to which the concept of a legal system refers, but is itself an abstraction from the universe seen in the totality of its aspects.
10 Thus to speak of looking at the universe from different viewpoints is to employ a misleading metaphor. From different viewpoints of the observer in space different aspects of the object viewed are visible or invisible. Here it is a question of the observer remaining at the same point in space and focussing his gaze on different features of the object.
11 e.g., patterns of deference in a similar mode to the same set of sources; observance of similar modes of procedure and admission of evidence.
12 In either case the same set of facts is being referred to, i.e., the probability that in certain circumstances the court will, or won't, authorise a sanction. When attention is focussed on persons and their acts only, the relationships of liberty, duty, etc., in those persons to those acts are mentioned. When attention is paid to the sanction as well, the existence of a legal rule is stated. In either case a fact complex will have been hypostatised—a most convenient linguistic device. For when one situation of fact has been succeeded by another it is so easy to say that a right, etc., has been transferred, created, extinguished and so on. This brief analysis suggests that it is fruitless to inquire into the “nature” of an “entity” (a right, etc.) which is such that it can be created, etc., without ever becoming visible or tangible. A word like “right” is in fact a “counter” or “token” word, the mystery of which disappears when if is exchanged for the currency of fact situations which it represents.
13 At this point it may be advisable to anticipate and turn to the concept of law as denned in section XII.
14 It is hoped that confusion will not result from the writer's practice, which it is difficult to avoid, of using the term legal rule to refer both to statements and to the facte so stated.
15 Stockdale v. Hansard (1839) 9 A. & E. 1.
16 This has been defined as a distinctive and comprehensive mode of experience which consists of thinking of everything in its relation to the probable sanction reactions of a specified court. Its conclusions are enunciated in the statement of substantive legal rules.
17 To assign this order of precedence is a necessary function of Kelsen's basic norm. It will be noted that the decisions of courts, as defined, are, by necessary implication, reasonably predictable.
18 These acts of acceptance of authority, which constitute, so far as the courts are concerned, the obligatory nature of legal norms, may be compared with the act of postulation of a basic norm which, according to Kelsen, constitutes, for the observer, the validity or obligatory character of a whole legal system. Once the courts have made these acts of acceptance they do indeed eee legal norms with Kelsen's eyes, e.g., as requiring them to authorise the application of sanctions in certain ways. It is however the probability of the application of these sanctions which constitutes legal obligation in the eyes of the lawyer's client. It is this type of obligation which is, or is stated by, a “legal rule” as conceived by a lawyer's jurisprudence. In the analysis of “legal norms,” however, Kelsen's views will be followed.
19 This process of “establishment,” which may include a creative element, is explained later.
20 Within, of course, the limits imposed by the definition of a court.
21 This formulation need not be in verbal symbols, e.g., norms whose source is in “custom” or the habitual following of a pattern of conduct. The clarity need only be relative to the facts of the instant case.
22 This stipulative definition, which should not be mistaken for a suggestion about what the judicial function ought properly to be, may be said to set up a mechanical model of the judicial process. It defines a methodological ideal type which is not intended to correspond to the reality of the judicial process but rather to provide a definite frame of reference against which this reality may be examined and in terms of correspondence with or deviation from which this reality may be described. It is suggested that some such model is essential to accurate comparative studies of the judicial process.
23 It will be seen that in the terminology here employed the norm established for application in a particular case need not necessarily fall within the definition of “legal norms.” When the judicial process involves a creative element the norm “established” may never have been previously formulated in precisely those terms, nor may it follow by strict logic or by the application of strict rules of interpretation from any previous authoritative formula. In such a case the decision can be regarded as giving rise to rights and duties for the parties (which will be recognised by other courts) but whether it is to be regarded a8 embodying an authoritative or persuasive legal norm for the future will depend on the authority conceded to precedents in the legal system concerned.
24 “Powers” are logically derived from court reactions by the following considerations. Where a court reacts in a certain way to a certain act we may ask whether the previous occurrence of another act would have made any difference to that reaction. If it would the actor has power in respect of that act; if not, disability. Thus in respect of every conceivable act the actor has either power or disability—it either operates as a title of rights, etc.—or it doesn't. Similarly, in respect of every act he has either liberty or it is a wrong (which will also be a breach of duty if the sanction falls on him). Liberty and duty can only be defined as logical alternatives if we regard wrongs for which there is only vicarious liability as breaches of duty on the actor's part. The writer prefers to regard such wrongs as involving no breaches of duty at all, but as exercises of power entailing duties of compensation or mere vulnerability to the application of sanctions on the part of some person other than the actor. Vulnerability (the equivalent of Hohfield's clumsy “no-right not”) to the performance of an act is the suggested correlative to liberty to perform that act. It is a specially appropriate term in cases of damnmn sine injuria.
25 This statement would attract little assent from the “fact skeptics” of the American Realist School, who would question the assumed correspondence between the “facts established” in the course of the judicial function and the actual facts. See Frank, Jerome, Law and the Modern Mind, 6th printing, Stevens & Sons, Ltd., London, 1949Google Scholar, at ix.
26 This is especially so when judicial precedents are recognised as authoritative but there are no clearly accepted rules for distinguishing between merely persuasive “dicta” and the binding element in the decision. The closest approximation to the current English practice that the writer can suggest is as follows: “A judge has authority to decide a case which is before him, but not one which is not. Any principle he regards as necessary to the decision of a case before him is, however, binding on future judges of inferior (and sometimes of equal) rank in all cases not distinguishable from that case by any consideration which, in relation to the decision reached, and on the current scale of accepted legal values, is material.”
27 e.g., a recorded verbal formula.
28 The practical alternatives to accepting this guidance are resignation of the judicial office or ignoring the judicial oath and risking removal from the Bench.
29 At this point the meaning of legal norms and legal rules coincide. The one mean the other.
30 The viewpoint of the subject has been considered in the definition and analysis of “legal rules.”
31 Cf. Williams, Glanville, in “Language and the Law,” L.Q.R., Vol. 61, Jan., 1951, at p. 86Google Scholar, “‘the law’ is a collection of symbols capable of evoking ideas and emotions, together with the ideas and emotions so evoked.”
32 This definition is defective in that norms created by recognised sources do not depend for their validity on individual acceptance. But the adjustments needed to secure precision are involved and would break the thread of the argument.
33 It is too often forgotten that any rational system of written norms is only a verbalised (and therefore inadequately expressed) system of values or preferences. Writing guarantees stability and certainty of the substrata of norms, but of itself guarantees neither certain nor correct statement of the values envisaged. A civilisation certain of its values might be wisest to train its magistrates in the “spirit of the laws” (cf. Aristotle, , Politics, III, xviGoogle Scholar, § 5) and leave it to them—as in the golden age of Rome?—and the Common Law!
34 Thus the word “ought” could be replaced by the words “shall” or “must” or any other prescriptive form—with appropriate replacements in the denning sentence.
35 Cf. Olivecrona, , in Law as Fact (Copenhagen and London, 1939), at p. 47.Google Scholar “It is impossible to ascribe a permanent existence to a rule of law.” This may hold of legal norms, but rules of law as defined are continuously existing probabilities continuously being realised. Such realisation, in the occurrence or non-occurrence of predicted sanction-probabilities, may be said to verify the statement of a rule. Thus a lawyer's jurisprudence provides a simple (though not strictly tenable) experimental mode of verification, e.g., of the existence of duties and rules—break them and see! The discerning will correctly object that the mere occurrence of a sanction does not prove the antecedent probability of its occurrence, any more than the mere rising of the sun establishes an antecedent probability that it will. They will also be able to supply the necessary correctives.
36 Oxford, Clarendon Press, 1952.
37 When we know the answer to this question we will be able to give some content to the curious proposition “Law is what the judges think it is.” This may be analysed as equivalent to “Law is what the judges think the term ‘law’ applies to.”
38 Pound gets very close to an appreciation of this point in his discussion of theories of law at pp. 68–71 of his Introduction to the Philosophy of Law, Yale, 1925.Google Scholar
30 This concept, as such, will be empirically discoverable, but it may refer—and often has referred—to what are conceived as metaphysical entities. Thus the Law of Nature may or may not be an illusion, but an accepted version of it has often been a source of law. Judges are only less well placed than legislators for making their concepts of the “nature of law” become as good as true.
40 This conception can be pictorially represented by a diagram showing the temporal sequence of events circling clockwise between an observer and a central court on which his gaze is focussed. As possible future events approach the observer he thinks “legal thought” (represented by a line from his mind linking them to the probable reactions of the court) and states legal rules. To do this his mind's line of thought follows the thought processes of the court, which refer the same events (upwards) to norms dropping down from sources above them, and, following the rules of the judicial process, produce decisions (downwards) as to sanctions. As events in the temporal sequence pass from mere future possibility to present realisation and then into the past they become exercises of liberty, or performances of duty, or wrongs or breaches of duty—in which case sanctions probably follow—unless general order can be maintained without this. In this case it must be assumed that fear of sanctions (which, in any case, seldom plays an important role) is of but minimal importance in the maintenance of order. Perhaps, too, the legal system here is almost redundant and scarcely discernible, so that the behaviour patterns in the temporal sequence are seldom those of duty-performance, but rather patterns imposed on legal liberties by conventional or religious norms. For organisation and order there must be in society. But the use of force is only the price of sin, and the less sin the less need for legal norms, and the less need for employing the sanctions of such legal norms as there are.
41 Leviathan, Part I, Chap. XIV. The writer is indebted to Hobbes for the comprehensive notion of legal liberty here suggested.
42 But not necessarily irksome, if the poet can be trusted. Cf. Arnold: “With joy the stars perform their shining, The sea its long moon-silvered roll…”
43 Save when they are patterns of duty performance, which, according to Duguit, are the only patterns of conduct the subject has any liberty or right to display. The sociologist is, of course, interested in all patterned conduct and in the inter-relations of different types. This wider interest accounts for the unsuitability of the sociologists' definitions (cf. Ehrlich and Malinowski) for a lawyer's jurisprudence.
44 Tavistock Publications, Ltd., London, 1952.
45 Harvard University Press, 1951. This work and the work of Parsons form the subject of the article by Professor Sprott, quoted supra. See note 8.