Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-23T21:28:35.185Z Has data issue: false hasContentIssue false
  • English
  • Français

The role and place of theory in legal education: reflections on foundationalism

Published online by Cambridge University Press:  02 January 2018

Alan Hunt
Alan Hunt*
Affiliation:
Carleton University, Canada
Get access Rights & Permissions [Opens in a new window]

Extract

This paper discusses the role of theory in legal education. It builds on an exchange between the author and Neil MacCormick and upon the discussion of the place of theory in legal education in William Twining’s symposium. The paper will move from some fairly concrete issues about the place of jurisprudence in the law curriculum towards some wider problems about the place of theory in legal studies and, finally, will consider some issues about the relationship between theory and jurisprudence. On the way it discusses the relationship between theory and philosophy in a manner which focuses upon the controversy about the foundational claims and pretensions of the theoretical and philosophical enterprise.

Type
Research Article
Information
Legal Studies , Volume 9 , Issue 2 , July 1989 , pp. 146 - 164
Copyright
Copyright © Society of Legal Scholars 1989

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Neil MacCormick ‘The Democratic Intellect and the Law (1985) 5 LS 172 and ‘Smashing the Two-way Mirror’, unpublished, 1987; Alan Hunt ‘Jurisprudence, Philosophy of Legal Education: A Response to Neil MacCormick’ (1986) 6 LS 292.

2 William Twining (ed) Legal Theory of the Common Law (Oxford, 1986).

3 Neil, MacCormick The Democratic Intellect and the Law’ (1985) 5 LS 172 Google Scholar

4 The version of legal history that has largely been jettisoned from the law curriculum had two defining features. Its methodology was entirely ‘internal’ in that legal development was conceived as the result and product of change occurring within legal practices and institutions. Its second defining characteristic was that it unquestioningly assumed that the past is merely an evolutionary route to the present such that it was sufficient to study the emergence of the common law in the post-Norman period to reveal all the salient features to that best-of-all systems, the English common law. This tradition exhibited the distinctively Whiggish feature of stressing the continuity of the evolutionary process which linked its early development to the maturity and rationality of the present and thereby ignored or failed to recognise discontinuity.

5 Barrett, and Yach, The Teaching of Jurisprudence and Legal Theory in British Universities and Polytechnics’ (1985) 5 LS 151.Google Scholar

6 Intuitive experience suggests that ‘resistance to theory’ is not a phenomenon ‘produced’ by law degree courses (though such resistance is undoubtedly ‘reproduced’). I concur with MacCormick's and Twining's experience that ‘student resistance is grounded as much in unfamiliarity, fear and indolence as in anti-intellectualism’. Neil MacCormick and William Twining ‘Theory in the Law Curriculum’ in Twining’, op cit, p 250. A significant impediment to curriculum reform is that intending law students appear to have an expectation of their studies that corresponds surprisingly closely to the ‘black-letter law’ paradigm of ‘teaching the law’. As far as I am aware little research has been done of the formation of the expectations of law students, but I would hazard the conjecture that these attitudes stem from the widely diffused empiricism which remains firmly entrenched in the working philosophy of British secondary education which is overlaid by a naive view of the role of law and lawyers which in turn has its roots in the way in which law is represented in popular political discourses.

7 The problems of how to introduce ‘theory’ are well illustrated in Phil Harris's largely successful text; Harris, An Introduction To Law (London, 1984). Harris starts with the introduction of two alternative paradigms but the pressure to include a wide range of descriptive material, of a more traditional ‘English legal system’ character, has the effect of losing or burying these initial perspectives.

8 Experience over recent years on the LLB programme at Middlesex Polytechnic has yielded some support for these contentions. First year students take a theoretical orientated ‘Introduction to Law’ course which is constructed around the contrast between broadly drawn paradigms of ‘liberal’ and ‘critical’ theory. In the second year students take a ‘Law and Society’ course which seeks to engage with a more elaborated treatment of the two models drawing on materials from both jurisprudence and the sociology of law. There have been some explicit anti-theoretical responses from students but these have been more than counterbalanced by positive feedback which has emphasised the integrating role that these courses have played. Additional impressionistic experience comes from the author's contact with the LLB programme run at Macquarie University in Sydney. There the extra space allowed by a four year programme makes possible the running of a foundation ‘History and Philosophy of Law’ course which does seem to result in a more generalized theoretical consciousness and a higher level of sophistication than is typically achieved in most undergraduate COUIXS in the UK.

9 Neil MacCormick ‘Smashing the Two-way Mirror’, unpublished, 1987 at 6.

10 Ibid.

11 We may note again the tendency to define philosophy so broadly as to encompass all serious enquiry, although it may be that the term ‘structured’ may be intended to import a narrower range of inquiry. But if this is intended it is not made clear how this burden is to be discharged. My inclination is to regard this question of the scope of philosophy as semantic, one on which no important issues hinge.

12 Neil MacCormick ‘The Democratic Intellect and the Law’ (1985) 5 LS 172; Neil MacCormick and William Twining, op cit, n 6.

13 Richard Rorty, Philosophy and the Minor of Nuture (Princeton, 1980) and Consequences of Pragmatism (Minneapolis, 1982).

14 Rorty employs a Kuhnian notion of paradigm shifts in stressing the importance of the great achievement of the Enlightenment which was to displace theology. Thereafter he is concerned to stress the communality of all post-Enlightenment thought (with the notable exception of the lonely figures of the great ‘edifying philosophers’ such as Kierkegaard, Wittgenstein and Hiedegger). In ‘lumping’ together in this way the majority of post-Enlightenment thought he underplays the significant battles that have been joined and shifts that have resulted. I suspect that this is in large measure the result of his determination to expel the idea of any claim for correspondence between thought and reality (the mirror of nature) as a result of which he loses the historist sense of some connection (however simple or complex our attempt to grasp it may be) between the phases of social histories and the intellectual form which humans have used to make sense of and to change their material (social and natural) environment.

15 ‘On my view, we should be more willing than we are to celebrate bourgeois capitalist society as the best polity actualised so far, while regretting that it is irrelevant to most of the problem of most of the population of the planet’; Richard Rorty, Consequences of Pragmatism (Minneapolis, 1982) 210.

16 Peter, Goodrich The Antimonies of Legal Theory’ (1983) 3 LS 1 Google Scholar

17 As a possible alternative agenda for jurisprudence to that proposed by MacCormick I offered the following possible questions:

  • (1)

    (1) What questions about law are generated by our contemporary experience of legal phenomena?.

  • (2)

    (2) Can legal regulation provide a framework of social integration in increasingly pluralistic and fractured communities?.

  • (3)

    (3) Is it possible to articulate persuasive internal and external grounds for obedience to law as the forms of law become more varied and expand their regulatory fields?.

  • (4)

    (4) What capacity do legal mechanisms have as viable agencies of social change in the diverse struggles for human well-being and emancipation?.

  • (5)

    (5) How are legal mechanisms and institutions related to the persistent inequalities of social power and conditions of life? Alan Hunt, op cit, n.1 at 300.

18 The identification of the dominant paradigm may involve some complex issues since it is rare to find a single theoretical position or author who holds unchallenged supremacy, instead we find that there is a more or less complex array of alternatives some presenting themselves as modifications whilst others seem to be in direct conflict. Thus for example the conventional history of jurisprudence over the last century has been written in terms of a battle between natural law and positivism; yet we might need to decide that these apparently opposed positions share certain features in common such that they jointly constitute the dominant paradigm. Or to give a contemporary example, should we take the dominant paradigm to be the positivist tradition within which we witness a hermeneutic shift from Austin to Hart which is taken a stage further by Dworkin, but in which the argument takes the form of family row. Or alternatively we might view Dworkin as making a more radical shift towards an explicitly socio-political philosophy which decisively challenges the Hartian tradition. I shall abstain from offering answers to these questions since they form some part of a current project.

19 For a more detailed account of the application of immanent critique see Alan Hunt ‘The Critique of Law: What is “Critical” about Critical Legal Studies’ in Peter Fitzpatrick and Alan Hunt (eds) Critical Legal Studies (Oxford, 1987).

20 The criticism of empirical epistemology underlay my consideration of American Realism in The Sociological Movement in Law (London, 1979).

21 For a full discussion of Carl Schmitt see Paul Hint, Law, Socialism and Democracy (London, 1986) 94–105.

22 The concept of ‘standpoint’ is powerfully deployed in Twining and Miers, How To Do Things With Rules (London, 1982); my only reservation about their treatment is that it tends to conflate ‘standpoint’ and ‘perspective’, whilst accepting the proximity and potential convergence I argue that they can most usefully be distinguished in order to clarify the choices before us.

23 Ibid. at pp 64–71.

24 Blumberg, 1 Law and Society Review 15.

25 My use of the distinction between standpoint and perspective, although it shares much in common, can be contrasted with the use that Maureen Cain makes of the concept ‘standpoint’ which she uses to emphasise the inescapability of ethical commitment. for her standpoint is ‘a theoretically conscious location, and therefore a politically chosen or accepted location’; Maureen Gain ‘Realism, Feminism, Methodology and Law’ (1986) 14 International Journal Sociology of Law 255. Her usage thus conflates my distinction between standpoint and perspective. I would add in support of the distinction which I draw that it has the merit of avoiding any essentialist fusing of the position or standpoint of participants, the interests associated with their standpoints, and the perspectives which they bring to bear.