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Protestant Jurisprudence and Modern Doctrinal Scholarship

Published online by Cambridge University Press:  25 July 2001

N.E. Simmonds
N.E. Simmonds*
Affiliation:
Jurisprudence in the University of Cambridge; Corpus Christi College
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Abstract

The shift away from Aristotelian jurisprudence had a number of consequences. It gave rise to a vision of political order spawning two contrasting traditions of juridical thought (exemplified by Grotius and Hobbes) that continue to exert their influence. By erasing the idea that all understanding of human action and institutions must draw upon the evaluative understandings of practical wisdom, it enforced upon us an exhaustive division between the neutral cognition of social facts and the evaluation or prescription of action. This rendered problematic the nature of the doctrinal scholar’s exposition of the law, for the doctrinal scholar appears upon the face of things to render the law intelligible by relating its content to comprehensible values. Finally it generated a split between prescriptive and analytical jurisprudence that obscured important issues and sent generations of legal theorists on a largely time-wasting errand.

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Articles
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The Cambridge Law Journal , Volume 60 , Issue 2 , July 2001 , pp. 271 - 300
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Copyright © Cambridge Law Journal and Contributors 2001

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References

1 I am thinking here of a system that includes a doctrine of precedent. In the absence of such a doctrine, judicial resolution of a penumbral case may add to the law only by creating a rule binding upon the specific parties to the litigation (res judicata).

2 Some people may hesitate to describe this as a “gap”. In fact, penumbral uncertainties of this type account for the only gaps that legal systems typically contain. Legal systems generally have closure rules (such as “everything that is not prohibited is permitted”) and therefore cannot contain juridical vacuums, except by virtue of the penumbral uncertainty of rules.

3 Nor should we be troubled by Dworkin's argument that such considerations will explain “consistency in strategy” but not “consistency in principle”: Dworkin, Ronald, Law's Empire (Fontana, London 1986), p. 134Google Scholar. Some good reasons for pursuing consistency of principle are outlined by Jeremy Bentham. See Bentham, Principles of the Civil Code, Chap. 17: “When once the laws have been established … upon a principle generally admitted, any further arrangement consistent with that principle will naturally be found to conform with general expectation. Every analogous law is, so to speak, taken for granted beforehand, and every new application of the principle helps to confirm and strengthen it.”

4 Hobbes, Leviathan, Chap. 26.

5 Medieval Germanic law was described by Romanists such as Sohm as “ein Recht ohne Rechtswissenschaft”: Jones, J.W., Historical Introduction to the Theory of Law (Clarendon Press, Oxford 1940), p. 1Google Scholar.

6 My own (ill-informed) suspicions are that, in the case of Roman law, the activities of the jurists have to be understood at least in part as aiming at an articulation of customary notions of proper conduct, within a context structured by specific enactments and adjudicative procedures. Such juristic articulation of customary standards serves, not only to relate the customary background to the more formal enactments and procedures, but also to stabilise the customary understandings themselves, by giving to them some authoritative statement. Later developments such as the ius respondendi and the Law of Citations were attempts to stabilise the stabilisers, by reducing uncertainty about which juristic statements were to be regarded as authoritative.

7 Simmonds, , The Decline of Juridical Reason (Manchester 1984)Google Scholar, Chap. 3.

8 Finnis, John, Natural Law and Natural Rights (Clarendon Press, Oxford 1980)Google Scholar.

9 This essay argues that many of the problems of doctrinal scholarship have sprung from the agenda set by the early modern Protestant jurists. It does not explore the hypothesis that those problems might have been overcome by a more classical Aristotelian approach. A suggestion to that effect is, perhaps, an unstated theme of John Finnis's fine essay “Blackstone's Theoretical Intentions” (1967) 12 Natural Law Forum 163 at p. 181. See also Gordley, James, Philosophical Origins of Modern Contract Doctrine (Clarendon Press, Oxford 1991)Google Scholar.

10 “The shape which the concept assumes in its actualisation … is essential for cognition of the concept itself.” Hegel, G.W.F., Elements of the Philosophy of Right, translated by Nisbet, H.B., (Cambridge 1991)Google Scholar, Section 1.

11 De lure Belli ac Pacis, 1.1.8.1.

12 Grotius, op. cit., 1.3.8.2.

13 Simmonds, , The Decline of Juridical Reason (Manchester 1984)Google Scholar.

14 De Iure Belli ac Pacis, 1.1.5.

15 Grotius, op. cit., 1.2.I.6.

16 Grotius, op. cit., 2.1.3.

17 Grotius, op. cit., 2.1.5.

18 Hobbes, Leviathan, Chap. 14.

19 Loc. cit. One sometimes hears it said that, by “right” Hobbes means a Hohfeldian liberty or privilege. This is true to the extent that his “right” is constituted by the absence of any obligation. I have pointed out elsewhere, however, that a Hohfeldian liberty should not be thought of as a residual element of the liberty of the state of nature, surviving the tide of legal regulation. Hohfeldian liberties are entities that exist only in a realm of jural relations, constituted in part by precisely such regulation. This is one reason for following Hohfeld's own practice of referring to them as “privileges” rather than “liberties”. See Kramer, , Simmonds, and Steiner, , A Debate Over Rights (Oxford 1998) p. 167Google Scholar.

20 See Tuck, Richard, Philosophy and Government, 1572-1651 (Cambridge 1993)Google Scholar; Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order From Grotius to Kant (Oxford 1999)Google Scholar.

21 In what follows I ignore those of Tuck's arguments which rely upon differences between the different editions of De lure Belli ac Pads. Even though the later edition may contain more clearly Aristotelian formulations than does the earlier edition, I see no compelling reason to ascribe these changes (as does Tuck) to Grotius's desire to rehabilitate himself with the Aristotelians of his native land, by concealing his wholesale rejection of Aristotle. They are equally consistent with a more straightforward desire to clarify the precise nature of his limited and specific departures from Aristotle (whether or not such clarification was undertaken as an exercise in rehabilitation).

22 Tuck, Richard, “Grotius and Selden” in Burns, J.H. (ed.), The Cambridge History of Political Thought, 1450-1700 (Cambridge 1991) p. 499, at p. 518Google Scholar.

23 I.e. the idea that virtue is a mean between extremes. See Aristotle, The Nicomachean Ethics, Book 2.

24 De lure Belli ac Pads, 2.23.1. For Pufendorf's attempt to deal with this Grotian acknowledgment, see Pufendorf, De lure Naturae et Gentium (edition of 1688), Book 1 Chap. 2.

25 Grotius points out that justice cannot be a mean, for it cannot be unjust to accept less than one is due: justice in his view consists in abstaining from that which is another’s: Grotius, De lure Belli ac Pacis, Prol. 44.

26 Grotius, op. cit., Prol. 45.

27 See Simmonds, “Grotius and Pufendorf” in Steve Nadler (ed.), The Blackwell Companion to Early Modern Philosophy (forthcoming).

28 Thus Pufendorf seeks to confine the validity of Aristotle's remarks on the lack of moral certainty to the realm of prudent concern for individual and collective welfare, distinguishing this from questions of rectitude according to natural law; he seeks to explain Grotius's acknowledgment of the uncertainty of moral affairs by reference to a distinction between the abstract clarity of moral concepts and the complex circumstances in which they must be applied. See Pufendorf, loc. cit. n. 24 above.

29 Grotius, op. cit., Prol. 58.

30 Leviathan, Chap. 14, (opening paragraph).

31 The threat must be certain: Grotius, op.cit., 2.1.5.

32 Leviathan, Chap. 13.

33 This is not to say that Grotian rights are wholly free from potential conflict. Thus Grotius allows for self-defence against a wholly innocent attacker, since the right of self-defence “has its origin directly, and chiefly, in the fact that nature commits to each his own protection, not in the injustice or crime of the aggressor”: De lure Belli ac Pacis, 2.1.3. In such instances the innocent attacker's right to bodily integrity conflicts with the defender's right to act in selfdefence. Such specific situations of potential conflict, however, do little to reduce the importance of the general contrast between Hobbes and Grotius on the matter of conflict between natural rights.

34 The Hobbesian “Laws of Nature” are not, of course, instantiations of Aristotelian practical wisdom, but they do resemble Aristotelian ethics in so far as they are poised carefully between the notions of duty and prudence: see Leviathan, Chaps. 14 and 15.

35 Leviathan, Chap. 7.

36 As Matthew Kramer aptly observes, “To encounter the work of Thomas Hobbes is to encounter a deep aversion towards ambiguity.” Kramer, Matthew H., Hobbes and the Paradoxes of Political Origins (Macmillan 1997), p. 55Google Scholar.

37 Hobbes discovered that social situations could possess a logic inexorably determining action and shaping collective outcomes contrary to the will of any individual: the logic of the preemptive strike. Later writers, such as Adam Smith and Karl Marx, were to discover that such structural logics could be benign (Smith's “invisible hand”) as well as malign (Marx's “change in the organic composition of capital”). In Hegelian hands, such ideas become the “cunning of reason”, and the restoration of a non-individualistic notion of Reason is then well under way.

38 Leviathan, Chap. 26.

39 Loc. cit.

40 See Simmonds, “Reason, History and Privilege: Blackstone's Debt to Natural Law” [1988] Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte 200.

41 See Kramer, Simmonds and Steiner, op. cit., p. 136. The applicability of the same criticism to modern liberals such as Rawls was pointed out by Hart, H.L.A. See Hart “Rawls on Liberty and its Priority” in Essays in Jurisprudence and Philosophy (Clarendon Press, Oxford 1983)Google Scholar. For the inadequacy of the Rawlsian response, see Gray, John, Two Faces of Liberalism (Polity, Cambridge 2000)Google Scholar Chap. 3.

42 When not viewed as simple instances of confusion, they come to be seen as debates structured by a mysterious convention that requires “political and moral ideals” to be put forward “as versions of the meaning, definition, or function of law.” See Honore, Tony, Making Law Bind (Clarendon Press, Oxford 1987) p. 32Google Scholar.

43 Immanuel Kant, Groundwork of the Metaphysics of Morals (various editions and translations). One might wonder how this emphasis upon abstract detachment and inwardness is to be reconciled with the interest in doctrinal legal categories that pervades Kant's “Doctrine of Right” in The Metaphysics of Morals. The answer must be, I think, that Kant views law as the working out of the conditions in which equal freedoms can be jointly possible: the conditions of equal freedom cannot be known in the abstract, but only through the manifest result of detailed efforts to implement those conditions.

44 Simmonds, “The Ethics of Legal Positivism” (1999) 2 Legal Ethics 87, at pp. 98-103.

45 See Campbell, Tom, The Legal Theory of Ethical Positivism (Aldershot: Dartmouth 1996)Google Scholar.

46 Dworkin has done much to restore this approach to jurisprudence, and to reject the flat division between analytical and normative inquiries, in his brilliant book Law's Empire (Fontana, London 1986). Unfortunately his account of the nature of interpretation is marred by the very perspective of Protestant autonomy that gives rise to the analytical/normative division in the first place.

In a series of articles commencing in 1978 (and also in my book The Decline of Juridical Reason, n. 8 above) I had myself been groping towards a more “interpretative” understanding of jurisprudence for some years before Dworkin produced Law's Empire. I mention this fact simply to avert the suggestion that I am climbing upon a Dworkinian “bandwagon”. Other, more clumsy, bandwagons were rumbling in the same general direction quite independently of Dworkin, and mine was one of them.

47 This has never deterred me from using the phrase in other, and to my mind more important, senses. See, for example, Kramer, , Simmonds, and Steiner, , A Debate Over Rights (Oxford University Press 1998) p. 139nGoogle Scholar. See also Simmonds, “Between Positivism and Idealism” [1991] Cambridge Law Journal 308.

48 Reservations somewhat similar to my own are expressed in a completely different context by Craig, Edward, Knowledge and the State of Nature (Clarendon Press, Oxford 1990) pp. 14–15Google Scholar. See also Gaus, Gerald F., Justificatory Liberalism (Oxford 1996) p. 305Google Scholar n. 9.

49 It is therefore no surprise that most of the advocates of such “conceptual clarification” tend to be legal positivists. There is a natural affinity between positivism and moral voluntarism. See Simmonds, , “The Ethics of Legal Positivism” (1999) 2 Legal Ethics 87Google Scholar.

50 When “ought” judgments are detached in this way from the contexts that would normally inform them, “ought” becomes (as Elizabeth Anscombe points out) a word of “mesmeric force” that contains no intelligible thought. Elizabeth Anscombe, “Modern Moral Philosophy” (1958) 33 Philosophy 1. Anscombe argues that this detached use of “ought” prevents “ought” from being inferred from anything, even from another “ought”: for an inference requires a real predicate, not a word containing no intelligible thought. For the suggestion that the detached use of “ought” may provide the source for Kelsen's later normative irrationalism, see Simmonds, “Normativity and Norms” (2000) 13 Ratio Juris 216 at p. 227.

51 One problem springs from the fact that the choice between rival interpretations may seem to require appeal to a deeper level of significance, thereby generating an infinite regress. For this danger, see Simmonds, “Imperial Visions and Mundane Practices” [1987] Cambridge Law Journal 465. Another problem springs from the sense that moral positions must be grounded in considerations that are independent of any social practice. I address this problem to some extent in Simmonds, , “The Possibility of Private Law” in Tasioulas, John (ed.), Law, Values and Social Practices (Aldershot: Dartmouth 1997)Google Scholar.

52 Dworkin, Ronald, Law's Empire (Fontana, London 1986) p. 190Google Scholar.

53 One could imagine a conservative version of Law's Empire that highlighted all the points at which Dworkin acknowledges the need for agreement and convergence, and marginalised the points at which he emphasises Protestant individuality. Such a theory might be considerably more convincing than Dworkin's own version, but its conservativism might superficially seem uncongenial to liberals.

54 Law's Empire pp. 63-64.

55 Op. cit., p. 66.

56 Op. cit., p. 67.

57 Op. cit., pp. 88-89.

58 Op. cit., pp. 11-15.

59 Cf. Dyzenhaus, David, Legality and Legitimacy (Clarendon Press, Oxford 1997) pp. 16–17Google Scholar.

60 Cf. Kramer, Matthew, In Defense of Legal Positivism (Oxford 1999) pp. 142–143Google Scholar.

61 Hart, H.L.A., Essays in Jurisprudence and Philosophy (Clarendon Press Oxford 1983) p. 6Google Scholar.

62 I drew attention to this point in my essay “Bringing the Outside In” (1993) 13 Oxford Journal of Legal Studies 147 at p. 156.

63 Hart, H.L.A., The Concept of Law, 2nd edition (Clarendon Press, Oxford 1994) p. 134Google Scholar.

64 Op. cit., p. 134, my italics.

65 Hart, op. cit., p. 139.

66 Simmonds, , “Bluntness and Bricolage” in Gross, Hyman and Harrison, Ross (eds.) Jurisprudence: Cambridge Essays (Clarendon Press, Oxford 1992) pp. 8–11Google Scholar.

67 Consider, for example, the following observation from one of the most perceptive of common lawyers: “I have an uncomfortable theory that once any body of law can be written out in a textbook, it is incapable of true response”: Milsom, S.F.C., Studies in the History of the Common Law (Hambledon Press, London 1985) p. 212Google Scholar.

68 Gadamer, Hans-Georg, Truth and Method, 2nd English edition, (London 1979)Google Scholar. Cf. Lon Luller's observation that “The scope of the precedent is determined not only in the light of the end-in-view pursued by the court that decided it, but in the light of ends then out of view because not stirred into active consciousness by the facts of the case being decided”: Lon Fuller, “Human Purpose and Natural Law” [1958] Natural Law Forum 68 at p. 74.

69 Kelsen, Hans, The Pure Theory of Law, translated by Knight, Max, (University of California 1967) p. 355Google Scholar.

70 See Simmonds, “Between Positivism and Idealism” [1991] Cambridge Law Journal 308.