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The Province of Jurisprudence Contested

Published online by Cambridge University Press:  20 July 2015

Andrew Halpin
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Extract

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.

Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.

Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.

Keywords

Province of Jurisprudenceheoretical disagreementlaw and democracylaw and politicsJohn AustinAllan Hutchinson
Type
Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 515 - 535
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

1. Page references to this work are hereinafter provided in parentheses.

2. Austin, John, The Province of Jurisprudence Determined (London: John Murray, 1832)Google Scholar;, Hart, H.L.A., ed. (London: Weidenfeld and Nicolson, 1955)Google Scholar;, Rumble, Wilfrid, ed.(Cambridge: Cambridge University Press, 1995)Google Scholar. I follow Hutchinson in citing from the Hart edition, but add page references to the Rumble edition in square brackets.

3. In July 2009 NASA delayed the launch of the space shuttle Endeavour for three evenings in a row due to bad weather.

4. Technically, Dworkin has primarily employed the argument to scatter his enemies by the device of placing them in an impossible position with each other. For discussion, see my “The Methodology of Jurisprudence: Thirty Years Off the Point” (2006) 19 Can. J. L. & Juris. 67 at 79-81.

5. Kuhn, T.S., The Structure of Scientific Revolutions, 2nd ed. (Chicago, IL: University of Chicago Press, 1970).Google Scholar

6. Ibid. at 77. Although Kuhn here is seeking to emphasize that the way nature is perceived is affected by the prevailing paradigm, there is no doubt that the experience of nature for Kuhn is capable of opposing the prevailing paradigm, and preparing the way for an alternative paradigm. Cf. Kuhn at 72 on the need to confront Newtonian theory with an experience of nature. (I take this point from my “Glenn’s Legal Traditions of the World: Some Broader Philosophical Issues” (2006) 1 J. Comp. L. 116 at n. 16.)

7. For an illustration of this employing Dworkin’s engagement with Hart, see Halpin, supra note 4 at 81.

8. Compare Austin, supra note 2 at 184-85 [157-58].

9. I consider Austin’s position in detail in “Austin’s Methodology?”—a conjoined study, sharing much of this introductory scene-setting section, presented as a paper at the John Austin 150th Conference, Anniversary, John Austin and his Legacy, UCL, December 2009. 10 Google Scholar. Hart, H.L.A., “Postscript” in The Concept of Law, 2nd ed. by Bulloch, Penelope & Raz, Joseph (Oxford: Clarendon Press, 1994) at 240–41.Google Scholar

11. For discussion, see Halpin, supra note 4 at 87, 103 (XI)(a).

12. Insisting on some commerce between general theory and particular instances differs from an unquestioning acceptance of the generality of analytical jurisprudence; see infra note 35 and accompanying text.

13. See works cited in Halpin, supra note 4 at 100 (VII)(k).

14. One could offer a democratic theory of law, as opposed to a Marxist theory of law, a feminist theory of law, etc. On the tension between developing a general theory of law and developing a theoretical account of law from a particular external perspective adopted by the theorist, see Halpin, supra note 4 at 72-74.

15. Hutchinson is more cautious in the case of philosophy, not asserting that it is politics as he does for legal theory, but rather that it is “vulnerable to … political and social values,” and that there is a “connection between philosophy and politics” (14).

16. On both Kelsen and differences, see, e.g., Raz, Joseph, The Authority of Law, 2nd ed. (Oxford: Oxford University Press, 2009) at 293, 335 Google Scholar. The need to differentiate influences, and outputs, becomes particularly acute when Leiter and Dworkin are brought into the Austinian tradition, but it is not insignificant even at the stage of embracing Hart.

17. For discussion, see my Reasoning with Law (Oxford: Hart, 2001) at 161-62. For a rich historical survey and an illuminating analysis of the “fact-versus-value tensions,” see Sartori, Giovanni, The Theory of Democracy Revisited (Chatham, NJ: Chatham House, 1987).Google Scholar

18. Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007) at 83–88.CrossRefGoogle Scholar

19. Dyzenhaus, David, “How Hobbes Met the ‘Hobbes Challenge’” (2009) 72 Mod. L. Rev. 488 at 505.Google Scholar

20. Ibid.

21. Here and in the following pages the emphasis is used by Hutchinson to make his critique of Dworkin’s democratic credentials a little easier than it might otherwise have been. In both locations, Hutchinson refers to “the governed” as a singular grouping (as he does to “the people”), thus preparing the way for one-step self-government: all those previously governed by an elite become the government. Again, Hutchinson overlooks the variety of groupings within the former class of the governed, among whom some will still be classified as governed-by-others as the outcome of a new (anti-elitist) democratic contest.

22. This places a more demanding content on “for the people” than is allowed by reading it as merely conveying a weak representational quality, as advanced by Hutchinson in then pleading for greater emphasis on the participational “by the people.” The stronger requirement on “for,” in placing a fiduciary obligation on whichever part of the populace hold the power of government so as to be exercised to the benefit of (all) the people, becomes an issue as soon as the possibility of different parts of the people with different interests is recognized. The recognition is clearly present in Lincoln’s famous rendering of the phrase at Gettysburg, preceded by his commitment to the founding proposition that “all men are created equal.” See http://www.visit-gettysburg.com/the-gettysburg-address-texthtml.

23. See discussion in footnote 22.

24. For a general argument on the interdependence of unfinished law and unfinished ideology (politics), see my “Ideology and Law” (2006) 11 J. Pol. Ideologies 153—also in Freeden, Michael, ed., The Meaning of Ideology: Cross-disciplinary Perspectives (Abingdon, UK: Routledge, 2007)Google Scholar. In that discussion, democracy is to be treated as an ideology, or more accurately as encompassing a number of ideologies, given the variety of ideological positions on democracy.

25. Hutchinson regularly links this characteristic to a more general portrayal of philosophy and conceptual analysis (1-4, 11-15, 22-23, 40, 42, 63, 164-65) and thus locates the contest between aloof philosophy and political engagement. This is a legitimate link to a wider debate, which I avoid for present purposes on the ground that it is an unnecessary distraction from the core claims that analytical jurisprudence necessarily excludes local political engagement and an understanding of the law of a strong democracy. For some comment on the wider debate, see my “Methodology and the Articulation of Insight: Some Lessons from MacCormick’s Institutions of Law” in Mar, Maksymilian Del & Bankowski, Zenon, eds., Law as Institutional Normative Order (Farnham, UK: Ashgate, 2009).Google Scholar

26. See Halpin, supra note 24 at 161-62, for a discussion on the limitations of a totalizing view of ideology with comparisons between Balkin’s “cultural memes” and Glenn’s “legal traditions”; and further, my “A Rejoinder to Glenn” (2007) 2 J. Comp. L. 88 at 89-90.

27. Kumar, Krishan, “Ideology and Sociology: Reflections on Karl Mannheim’s Ideology and Utopia” (2006) 11 J. Pol. Ideologies 169 at 171.CrossRefGoogle Scholar

28. Against Blackstone, see Austin, supra note 2 at 184-87 [157-59]. Against Judge and Co, see Bentham, in Bowring, John, ed., The Works of.Jeremy Bentham V (Edinburgh: William Tait, 1838-1843) at 369 Google Scholar. The markedly more conservative tone of later pamphlet, John Austin’s, A Plea for the Constitution (London: John Murray, 1859)Google Scholar is used by Hutchinson as evidence of Austin being “a liberal reformer, but a democratic antagonist”(28). This publication is picked up by Lotte & Hamburger, Joseph, Troubled Lives: John and Sarah Austin (Toronto, ON: University of Toronto Press, 1985)Google Scholar to suggest a change in Austin’s political and analytical orientation. However the latter thesis is received, the pamphlet only serves to underline the point that a commitment to analytical jurisprudence does not bar political engagement.

29. Hutchinson attempts to treat Hart as an exception to “many of his contemporary positivist disciples and followers”(69), an assertion that it would be difficult to substantiate—instances of political engagement can readily be found for Raz and Gardner; and if this point is meant to cover the wider analytical approach, extending the class to Finnis and Dworkin, then the examples are numerous.

30. Austin, supra note 2 at 53-55 [53-54].

31. Ibid. at 184-86 [157-59]: “To prove by pertinent reasons that a law is pernicious is highly useful, because such process may lead to the abrogation of the pernicious law.”

32. Even the analytical moralists do not pursue the latter without engaging in the former—contrast the technical analysis of the nature of law in Dworkin’s theoretical work with the proposals for legal reform in an election manifesto.

33. Hutchinson’s weaker reading of “for the people” (see supra note 22) as connoting a representational quality amounts to a negative reading on the participatory axis where representation and participation are seen as opposite forms of democracy. Each may be accompanied by a positive reading on the beneficiary axis. It would be impossible to imagine representational democracy without some value on the beneficiary axis, though such an analysis might well fit a “people’s republic” run solely for the benefit of the ruling party: a one-dimensional spurious democracy. What difference emerges if the reading on the participatory axis is positive but is still accompanied by a zero on the beneficiary axis? The ruling grouping is dependent not on entrenched political-military power but on the power of the ballot box, and is potentially more unstable, yet with no positive reading on the beneficiary axis may be equally despotic. Equally, a one-dimensional spurious democracy.

34. See supra notes 21 and 22, and accompanying text.

35. See the doubt ex Pressed in Halpin, supra note 4 at 87-88; and similarly, Hutchinson (80).

36. Hutchinson’s citation of Raz here quotes Raz, supra note 16 at 211 [citation updated and corrected] in providing an example of a non-democratic legal system where the law, as Raz later puts it, will instrumentally serve “bad purposes” (Raz, 225-26), as upholding his (Hutchinson’s) basic insight on the law-power nexus.

37. Ibid. at 211, 225: “an immeasurably worse legal system,” “enables the law to serve bad purposes.”

38. Ibid. at 226.

39. It is another matter entirely whether a convincing theory of the rule of law (or of law) can deal exclusively with morally neutral qualities of law.

40. It surfaces in his discussion of rights and judicial review (186-88).

41. For a view sympathetic to some of Hutchinson’s concerns, see my “A Study on the Judicial Role” in Halpin, supra note 17.

42. See supra note 33.

43. A major implication of abandoning the sole reliance on the participatory axis and introducing the beneficiary axis is (as Hutchinson’s tenacious grip on the participatory axis throughout his book serves to illustrate) the introduction of some set of values that are not determined by democratic participation alone. This further suggests a pre-democratic vision of social coexistence needed to animate the participatory processes of democracy, illustrated by Lincoln’s prior acclamation of “all men are created equal” (supra note 22), and presaged in the proverb, “where there is no vision, the people perish” (Proverbs 29:18).

44. I examine this issue in detail in Halpin, supra note 9.