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Jurisprudence, philosophy and legal education—against foundationalism

A response to Neil MacCormick

Published online by Cambridge University Press:  02 January 2018

Alan Hunt
Alan Hunt*
Affiliation:
Middlesex Polytechnic
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Extract

There are grounds for being optimistic about the future of legal education. Not least of these is that there is emerging a broad alliance, embracing a range of intellectual positions, which is increasingly outspoken in its criticism of the dominant vocationalism which characterises so much legal education. Neil McCormick has recently added his forceful voice to the criticism of the narrow and intellectually barren fetish of ‘learning the rules’ which constitutes the great bulk of the practice of law teaching. The context of MacCormick's advocacy of the virtues of a broad philosophical orientation in legal education was the publication of Barnett and Yach's survey of jurisprudence teaching in the United Kingdom.

Type
Research Article
Information
Legal Studies , Volume 6 , Issue 3 , November 1986 , pp. 292 - 302
Copyright
Copyright © Society of Legal Scholars 1986

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References

1. D. N. MacCormick, ‘The Democratic Intellect and the Law’ (1985) 5 LS 172–182. All subsequent page references in the text are to this article unless indicated otherwise.

2. H. Barnett and D. Yach, ‘The Teaching of Jurisprudence and Legal Theory in British Universities and Polytechnics’ (1985) 5 LS 151–171.

3. The re-submission of the LL.B offered at Middlesex Polytechnic submitted to and approved by the CNAA for introduction in the session 1985–86 contains no compulsory third year jurisprudence. (Jurisprudence is however still offered in a more specialist guise as an optinal subject). The most distinctive curriculum change in the new curriculum is the introduction of overtly theoretical course as compulsory features of the first two years of the course. A theoretically orientated ‘Introduction to Law’, replacing a traditional English legal system course, and is followed by a ‘Law and Society’ course in the second year. Within these courses theoretical, historical and inter-disciplinary issues and perspectives are progressively introduced.

4. R. Dworkin, Law's Empire (London, 1986).

5. MacCormick recognises the problem of the marginalisation of theoretical issues (p 181), yet strangely he does not pursue its implications.

6. A fuller discussion of the interaction between substantive law and legal theory would need to pay attention to the very considerable expansion, as measured by the volume of legislation and decided cases, of substantive law syllabi; a trend which generally reinforces and deepens the basic separation between legal theory and substantive law as the substantive law syllabi bulge at the seams.

7. An introduction to the project of curriculum reform is advanced in my article, ‘The Case for Critical Legal Education’ (1986). 20 The Law Teacher 10–20.

8. I will elaborate upon my concept of ‘theory’ in Part IV below.

9. D. Black, The Behavior of Low (New York, 1976). For a criticism see A. Hunt, ‘Behavioral Sociology of law’ (1983) 10 JLS 1 M and the recent defence from M. Cooney, ‘Behavioural Sociology of Law: A Defence’ (1986) 49 MLR 262–271.

10. D. N. MacCormick, H. L. A. Hart (London, 1981).

11. Without developing or supporting the contention I would suggest that pursuing the implications of MacCormick's hermeneutic reinterpretation of Hart yields the conclusion that Hart's ‘concept’ can be most usefully understood as an expression of the professional ideology of legal practitioners.

12. For a forceful critique of philosophical foundationalism see Richard Rorty, Philosophy and the Mirror of Nature (Princeton, 1980), and in condensed and consummate prose in ‘The Contingency of Language’London Review of Books, 17 April 1986. For the implications of the critique of philosophical foundationalism for legal theory see Allan Hutchinson, ‘From Cultural Construction to Historical Deconstruction’, (1984). 94 Yale LJ 209.

13. For example, he gives a ‘speedy affirmative’ answer to ‘the question of whether sociology is necessarily a part of jurisprudence’ (p 179).

14. The quest for unity and integration within law-as-discipline involves complex motivations which takes us beyond my present concerns. I want to suggest, without elaboration, that there is a connection between a common feature of academe which to use functionalist terms is concerned with boundary maintenance. Each discipline is predisposed to maintain and reinforce its position within the academy by appeal to a unique homogeneity which constitutes its natural boundaries. At the same time the claim for the unique boundaries of law-as-discipline is closely associated with the requirements for the legitimation of the professional status of legal practice. The tension in the marriage between professionalisation of legal practice and the legal academy is partially concealed by a mutual interest between the two parties to sustain both public and academic confidence in the unity of law-as-system and law-as-discipline.

15. In its most contemporary form this question is the core of Ronald Dworkin's project despite his concern to distinguish himself from ‘positivism’. It gives the question of transatlantic inflexion which seeks to blend the traditional concerns of British analytical jurisprudence for the justification of judicial decisions within the common law with the American concern with the justification of judicial review. It is this project which explicitly informs Law's Empire (London, 1986).

16. Twining and Meirs in How To Do Things With Rules (London, 1982), provide an interesting application of sensitivity to ‘standpoint’ for pedagogic strategies within legal education. They tend, however, to conflate ‘standpoint’ and ‘perspective’ and thereby endow standpoint with an unjustified objectivism.