The Nature of Legal Theory: From Laws to Law
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This chapter begins with a discussion of the relationship
between law and legal theory, and continues by clarifying some
basic problems of terminology and methodology. It then considers the importance
of context in legal theory, the dangers inherent in classifying legal
theories and the extent (if any) to which we can have knowledge of moral
matters, before concluding with an explanation of why it is useful to study
legal theory, both from the perspective of legal practice and within the
wider context of the academic study of law.
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Most courses of study within the field of law involve an
analysis of the content of a specific part of the whole legal system.
Provided you know the basic terminology of the legal system you are studying,
the title of a typical course gives a reasonably accurate indication of the
scope of the subject matter involved. Thus English lawyers will know what
aspects of legal doctrine they can expect from a course on tort, while Scots lawyers will know what they
can expect from a course on delict; and
comparative lawyers will know that, broadly speaking, the two subjects are
the same.
It is not
surprising, therefore, that law students develop an expectation that the
scope of both the courses they study, and the textbooks which support those
courses, will be defined by reference to specific areas of law. Of course,
the treatment of the legal content may vary. Some courses will be taught and
studied contextually, with the legal doctrines being examined within the
social and economic context of the real world; others will proceed on the
so-called black letter basis, which means
that the cases and statutes containing the legal doctrines will be subjected
to purely textual analysis, with little or no reference to the practical
context within which those doctrines function.
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Other variations
are possible. For example, the packaging and labelling of courses may change
from time to time. What was once commonly known as constitutional and administrative law may become
known as public law. Similarly, the
established textbook unities of contract
and tort may be merged and expanded by the
addition of restitution to form the new
subject of obligations, while at the same
time being enlivened and made more realistic by the addition of a dash of equity. Nevertheless, irrespective of the ways
in which courses are labelled, taught and studied, the general proposition
remains that practically the whole of the law curriculum is presented in
terms of areas of law which are, or are at least perceived to be, doctrinally
coherent.
Legal theory is
different. One immediately apparent difference is that legal theory is
painted on a larger canvas; or, to change the metaphor into a more
appropriately verbal one, it asks bigger questions. So, for example, criminal
lawyers will ask questions such as what is the
definition of theft? Legal theorists, on the other hand, will ask
questions such as what is it that makes the
prohibition on theft (along with a great many other prohibitions) into a
matter of law, whereas many other forms of dishonesty are left solely in the
realm of morality?
In a nutshell,
therefore, legal theory involves a progression from the study of laws to the study of law.
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Although this book is called Legal
Theory, you will find that some other books (and the courses for which
they are used) bear other titles, such as Jurisprudence,
Legal Philosophy or the Philosophy of Law.
Closer examination of the contents of both books and courses, however, will
generally show that the choice of title often reflects nothing more
substantial than the personal preference of the person making the choice. All
that need be said here is that this book uses the expression legal theory in a relatively broad sense to
include discussion of not only the nature of law,
but also the nature of rights and justice, and the use of law to enforce
morality.
If justification
for this use of legal theory is required,
it may be provided on two bases.
First, all these
topics discussed are clearly theoretical in nature, and those which do not
directly address the nature of law itself are so closely involved with the
nature of law that it would be both unrealistic and unhelpful to consign them
to separate consideration elsewhere.
Secondly, it is a
peculiarly Anglo-American idea to treat legal
theory as being more or less synonymous with jurisprudence. In French, for example,
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the word jurisprudence
means the body of law developed through the decisions of the courts. This
explains the use of the phrase Strasbourg
jurisprudence to identify the law
contained in the European Convention on Human Rights as developed by the
European Court of Human Rights at Strasbourg. The phrase théorie générale du droit, on the other hand, reflects the theoretical nature of
that kind of material which, in Anglo-American usage, is called jurisprudence.
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It is, of course, trite to say that the primary sources
of English law are cases and statutes, together with any relevant sources of
European Community law. Admittedly, as we shall see more or less throughout
this book, one of the central concerns of legal theory is whether law may properly be limited to formal texts of
any kind, or whether it also incorporates elements drawn from other sources.
However, for the present purposes, the essential point is that judicial and
legislative texts are, in practical terms, the primary sources of legal
doctrine, with scholarly works being no more than aids to understanding
those sources.
For the student of legal theory, on the other hand, the
primary sources are frequently not cases and legislative enactments, but the
works of legal theorists. Furthermore, legal theorists are not necessarily
lawyers, because the subject matter is inextricably linked with both
philosophy and political theory. As W. Friedmann puts it:
‘all legal theory must contain elements of philosophy -
man’s reflections on his position in the universe - and gain its colour and
specific content from political theory - the ideas entertained on the best
form of society.’ (Legal Theory, 5th edn,
1967, p. 4.)
More particularly:
‘Before the nineteenth century... the great legal
theorists were primarily philosophers, churchmen and politicians’
and
‘the new era of legal philosophy arises mainly from the
confrontation of the professional lawyer, in his legal work, with problems of
social justice.
‘It is, therefore, inevitable that an analysis of earlier
legal theories must lean more heavily on general philosophical and political
theory, while modern legal theories can be more adequately discussed in the
lawyer’s
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own idiom and system of thought. The difference is,
however, one of method and emphasis. The modern jurist’s legal theory, no
less than the scholastic philosopher’s, is based on ultimate beliefs whose inspiration comes from outside
the law itself.’ (Emphasis added. Ibid.)
Some support for
the part of this analysis which relates to the pre-20th century period can be
found in Oliver Wendell Holmes’ pointed comment on the leading English legal
theorist of the 19th century, that ‘the trouble with Austin was that he did
not know enough English law’. (The Path of the
Law (1897) 8 Harv LR 457, at p. 475. Austin’s command theory of law is discussed in Chapter
4.)
The most practical
consequence of the fact that many legal theorists are not lawyers is that
some of the skills required to read and evaluate texts drawn from non-legal
disciplines may not come easily to law students, whose habits of
conceptualizing, and whose expectations of language and those who use it,
have been conditioned by the protracted study of legal texts. One of the
characteristics which the other academic disciplines may possess, when
contrasted with law, is a greater dependence on soft
concepts, in the sense that the concepts are, in their very nature,
incapable of the degree of precise verbal formulation which would enable
their exact content and limits to be easily identified. It follows that some
law students, who are often used to working with harder (using the term harder in the sense of more precise) concepts, may well find that it
takes time to adapt to some aspects of the academic discipline involved in
legal theory. However, this adaptation is part of the mind-broadening process
of education, and must be accepted as a valuable part of the academic
challenge which the subject presents.
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Having
established the nature and sources of legal theory, we must move on to
consider one of the most basic points of all, namely that all legal theories
must be seen within their own context or contexts.
Introduction
There are many contexts within which legal theories may
be viewed. While acknowledging that there is significant overlap between
them, it will
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nevertheless be useful to identify, and comment briefly
upon, three of the most basic contexts.
First, we will consider the importance of the historical
context within which a theory is formulated. Secondly, we will turn to the
cultural context of which a theory forms part. Finally, we will consider the
context of the particular question to which a theory is offered as an answer.
The historical
context
At the risk of
stating the obvious, all legal theorists work within the intellectual
climate of their age; and this is equally true whether they belong to, or
react against, the mainstream of contemporary ideas. While this fact necessarily
governs the scope of each theorist’s world-view, on a more positive note it
also gives succeeding generations the opportunity to benefit from the work of
their predecessors. As Isaac Newton recognized of his own position within the
field of physical science, if he had been able to ‘see further than other
men’ it was because he had been able to ‘stand on the shoulders of giants’.
The cultural context
Although the existence of a legal system is one of the
characteristics of all human societies, and therefore legal theory is, to
this extent, cross-cultural, it will nevertheless be apparent that what is
meant by words such as rights, freedom and justice
will vary substantially from one culture to another. The factors which govern
these differences will themselves vary, but will typically include the
economic basis of each society (for example, capitalist and socialist
societies will obviously take different approaches to the question of
property rights) and the status of religion within each society.
By way of overlap
with the historical context, it will be obvious that, even within a single
culture, attitudes may undergo fundamental changes with the passage of time.
For example, in Bird v Holbrook (1828) 4
Bing 628, which involved a claim in respect of an injury caused by a
spring-gun, Best CJ said ‘... Christianity... has always been held to be...
part of the law of England’.
Similarly, as
recently as the second half of the 19th century, the Court of Exchequer
Chamber held that a person who had agreed to let a room was entitled to
refuse to proceed with the letting when he discovered that the room was to be
used by the Liverpool Secular Society for a lecture which would question
Christian doctrine. The basis of the court’s decision was that since Christianity
was part of English law, it followed that the intention had been to use the
room for an unlawful purpose. (Cowan v Milburn
(1867) LR 2 Exch 230.)
However, by the
early part of the 20th century judicial attitudes had changed. In Bowman v Secular Society Ltd [1917] AC 406, the
House of
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Lords upheld the
legality of a legacy to a company whose objects were ‘to promote... the
principle that human conduct should be based upon natural knowledge and not
upon super-natural belief, and that human welfare in this world is the proper
end of all thought and action’. More particularly, Lord Sumner, having
discussed Bird v Holbrook (above), and
having pointed out that ‘spring-guns, indeed, were got rid of, not by
Christianity, but by Act of Parliament’, observed that ‘the phrase
“Christianity is part of the law of England” is really not law; it is
rhetoric’. He explained the change of legal principle thus:
‘The words, as
well as the acts, which tend to endanger society differ from time to time in
proportion as society is stable or insecure in fact, or is believed by its
reasonable members to be open to assault. In the present day, meetings or
processions are held lawful which a hundred and fifty years ago would have
been deemed seditious, and this is not because the law is weaker or has
changed, but because the times have changed, society is stronger than before.
In the present day reasonable men do not apprehend the dissolution or the
downfall of society because [the Christian] religion is publicly assailed by
methods not scandalous. ’
It may seem that
the culture-specific aspect of legal theory poses problems for students who
hold strong personal views. In reality, however, as you will see in Section
1.7 (below), all that is required is that you should be willing to discuss
all the possible views in an intellectually rigorous and critical fashion.
Nevertheless, the fact remains that your view of legal theory, and of all the
topics that fall within its scope, can never be more than one part of your
wider world-view.
Of course, it may be argued that the ideal work on legal
theory would be cross-culturally comprehensive. Perhaps. But practical
constraints of time, expertise and the size of the resulting book are such
that attainment of this ideal is unlikely. Furthermore, the attempt may be
counter-productive. As Oliver Wendell Holmes says, having read the Appendix
on the subject of possession in Stephen’s Criminal Law, the author was ‘not the only
writer whose attempts to analyse legal ideas have been confused by striving
for a useless quintessence of all systems, instead of an accurate anatomy of
one’. (Op cit., p. 475.)
The context of the
question which is being answered
Quite apart from the historical and cultural contexts
within which legal theories are formulated and criticized, the different
answers given by legal theorists need to be assessed in the context of the
questions which they are considering. For example, the classification of
legal theories into natural
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law and positivist
categories (which is outlined in Chapter 2 as a preliminary to considering
some of the major theories within each category in subsequent chapters), may
in some cases represent a genuine disagreement as to the nature of law
itself. Alternatively, in some cases, the differences between the answers
will flow simply from the fact that different questions are being asked,
namely ‘what is it that makes a statement into a
statement of law?’ and ‘what is it that
makes law into good (in the sense of morally desirable) law?’. This is
important because a theorist who is giving detailed consideration to one
question may well give no attention whatever to some other question, which is
equally interesting but simply outwith the scope of the instant inquiry. In
this context, it may be useful to remember that legal theory is a branch of
philosophy, because:
‘Philosophy may be pre-eminently a subject where insight
into one aspect of things tends to blind us to other aspects, and we should
try to draw upon other people's insights positively in order to advance our
own halting and necessarily personal, but not therefore necessarily wrong,
grasp on things.’ (T.L.S. Sprigge, The Rational
Foundations of Ethics, 1990, p. 5.)
Books and courses on legal theory will inevitably
classify the legal theories with which they deal, even if only into the
natural law and positivist categories. However, the process of
classification must never be allowed to obscure the fact that all schemes of
classification are only convenient shorthand to indicate generalities rather
than specifics, and they must therefore be seen only as an aid to, and not as
a substitute for, understanding.
It may be valuable
to recall the ancient Greek legend of Procrustes, who claimed to have a bed
into which anyone would fit exactly. And indeed everyone did fit Procrustes'
bed, but only after he had stretched on a rack those who were naturally too
short, and amputated the bodily extremities of those who were naturally too
tall. The relevance of this tale in the present context is that there is
often a temptation to treat the classifications of legal theory as a set of
Procrustean beds into which every insight and every argument must be fitted,
no matter what distortion of the material may be necessary. It will be
obvious that this temptation must be resisted, since distorting the material
in this way will necessarily distort your understanding of it.
The problem is
that avoiding the kind of distortion which results from forcing ideas into
Procrustean beds may deprive you of the comfortable support of a pre-existing
framework and leave you with the corresponding need to develop your own
‘halting and necessarily personal, but not therefore necessarily wrong,
grasp on things'. (The phrase is repeated from
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Sprigge’s comment quoted above.) The ‘halting’ nature of
your ‘grasp on things’ may, of course, leave you holding positions which
cannot be reconciled with each other. In other words, you may be open to the
charge of inconsistency. However, unless you have a perfect understanding of
the whole of legal theory, the only way to avoid the charge of inconsistency is
either to abandon the study of the subject altogether (and thus avoid inconsistent
understanding by having no understanding whatsoever), or to claim an
understanding which is limited to an area of the subject which is small
enough to enable you to avoid inconsistency. A more realistic alternative is
simple acceptance that inconsistency is the price to be paid for the intellectual
honesty of avoiding Procustean beds; or, putting it the other way round, in
the famous phrase of the American poet Ralph Waldo Emerson, ‘a foolish
consistency is the hobgoblin of little minds’.
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Legal theorists adopt many different approaches to the
analysis of law, justice and morality, some of which will support, and some
of which will contradict, your most basic personal beliefs and values. To
take one of the most obvious examples, you may consider abortion to be, in
some situations at least, perfectly legitimate; or you may consider it to be
either never permissible, or permissible only in the most exceptional of
circumstances. In other words, you will be talking the moral language of right
and wrong.
More particularly,
you may ask: ‘how can we debate moral matters in the same way as we debate
factual matters, when the former are ultimately only matters of opinion?’.
This is an enormous question to which philosophers working in that part of
philosophy known as ethics have offered
very many answers. While it would be impossible to provide a full-scale
survey of ethics here, it may be useful to outline, very briefly, two
possible answers which argue that absolute moral knowledge is possible, and that therefore such matters are
not simply matters of opinion. We will
then consider two further answers. One of these answers rejects the
possibility of moral knowledge altogether. The other constitutes a sort of
half-way house by accepting the possibility of moral knowledge while
nevertheless rejecting the idea that such knowledge can be absolute.
Before turning to
the arguments themselves, it must be said that some arguments which claim to
demonstrate the existence of absolute moral knowledge are based on the idea
of duty and some on the idea of
consequences.
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Arguments based on duty
(which in the technical vocabulary of philosophy are known as deontological arguments) may be broadly divided
into those which rest on religion and those which do not.
Taking the
religious response first, the argument is likely to be along the following
lines: ‘my god has revealed his (or her) truth to me (typically through a
holy book, by communicating through prophets or through transcendental
experience) and his (or her) truth is therefore the ultimate fact on which I
base my entire life. If the truth of this fact cannot be demonstrated in the
same way as the truth of “ordinary” facts can be demonstrated, that is
because the ultimate facts relating to god and to his (or her) existence are
not “ordinary” facts’. While believers will, of course, be wholly satisfied
with this type of answer, unbelievers will remain unmoved. Two points may be
made in passing.
First, some
believers do claim to be able to prove the existence of their god by means of
rational argument. However, the most strikingly common characteristic of such
proofs is that they are much more effective at bolstering the beliefs of
those who are already convinced than at delivering others from their
unbelief.
Secondly, it is a
common observation that religion breeds disagreement. Sometimes these
disagreements are based on disputes as to the legitimacy of religious
authority (as is the case in Christianity between Roman Catholicism and
Protestantism). Sometimes they are based on different interpretations of
holy texts and doctrines. However, whatever the source of any particular
disagreement between believers, the unbeliever will commonly point out that
the wide range of opinions, even within a single religion, is a curious
characteristic of any system which claims to deliver ultimate truth.
Even those who believe in a god have to confront a
problem which has been recognized since at least the time of Plato (c.
429-347 BC). Does their god approve of what is good; or is what is good good
because their god approves of it? If the former, it follows that the quality
of goodness existed before their god approved of its manifestations; which
leads to the conclusion that the source of goodness, as distinct from its
recognition, lies outside the activities of their god. If the latter, then
(at least in the case of an allpowerful god) the quality of goodness is
arbitrary, in the sense that their god could have conferred his or her
approval differently in the first place and could change his or her mind at
any time subsequently. In relation to the second possibility, as Nigel
Warburton puts it:
‘A defender of morality as a system of God’s commands
might answer that God would never make murder morally praiseworthy because
God is good... But if by “good” is meant “morally good”... all that...
[this]... can
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mean is “God
approves of him- or herself’. This is hardly what believers mean when they
say “God is good”’. (Philosophy: The Basics,
3rd edn, 1999, p. 42.)
Those who find religious answers unsatisfactory may seek
purely rational answers to the moral questions. One of the most influential
examples of such answers is provided by the German philosopher Immanuel Kant
(17241804). In particular, Kant argues that the only thing which is
absolutely and unconditionally good is the good will, with all other things which
are conventionally regarded as being good (such as wealth and health) being
good only to the extent that they are used in the pursuit of good ends.
Clearly, this leads us to the question of how we can identify the good will.
Kant’s answer is that there is a pre-existing moral law, which humans, being
rational and possessed of free will, can identify by using their reason and
which they need to identify in order to know how they should exercise their
free will. Kant
‘takes the
existence of an ordinary moral consciousness for granted.... It is the moral
consciousness of this ordinary human nature which provides the philosopher
with an object for analysis.... The philosopher’s task is... to ask what
character our moral concepts and precepts must have to make morality as it is
possible.... Science is what it is, morality is what it is, and there’s an
end on’t.’ (Alasdair MacIntyre, A Short History
of Ethics, 2nd edn, 1998, p. 191.)
It is important to realize that, for Kant, the moral law
simply is, and our intellectual
endeavours merely lead us to its discovery. In other words, we do not create it.
These ideas lead
Kant to identify a universal moral law, which he proceeds to call the categorical imperative. This is categorical because it is unconditional or absolute,
rather than conditional or contingent, and is imperative
because it commands obedience. Despite the fact that the categorical
imperative is a single idea, Kant formulates it in two ways. One formulation
is that you should make the maxim of your action
such that it could be the maxim of a general action. In other words,
the maxim (or motive
or justification) on which you rely
must be such that everyone else could also rely on it; or, even more simply,
it must be capable of being universalized.
The other formulation is that people must be
treated as ends in themselves and not as mere means to ends.
Many people find
Kant’s ideas attractive because they make a rational framework available to
those who either have no religious belief, or at least regard whatever belief
they - and other people - may have, as being purely subjective. However,
Kant’s ideas are not unproblematic. Two points may usefully be made.
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First, Kant argues
that the moral quality of an act (or, in other words, whether an act is
performed with a good will) depends solely
on the maxim underlying it. So, for example, I act morally if I perform an
act of charity because I think I am under a duty to do so. On the other hand,
I act immorally if I act out of self-interest (for example, giving large sums
of money to charity in the hope of obtaining a knighthood), or even if I act
simply out of compassion (despite the fact that many other systems of
morality would rank compassion very highly).
Secondly, Kantian
morality may lead to results which offend many people’s intuitions. For
example, we have a duty to tell the truth, because social life would be
impossible if everybody considered themselves to be at liberty to tell lies
whenever it suited them to do so. Therefore, telling the truth is morally
good, even if- to take a standard example - it means telling a homicidal
maniac where he will find someone whom he wishes to kill. (The case of Rv Registrar-General ex parte Smith [1991] 2 All
ER 88, discussed at p. 63, provides a good example of a decision which would
have gone the other way if the court had been thinking along Kantian lines.)
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If you conclude that duty-based approaches are less than
wholly satisfactory, you may be tempted by consequentialist
alternatives, which hold that moral quality depends on consequences rather than duties. So, if we return to the homicidal maniac
example, the consequence of telling a lie as to the whereabouts of the
intended victim are better than the consequences of telling the truth, and
therefore, in that context at least, it is morally better to lie than to tell
the truth.
We will give more
detailed consideration to some aspects of consequentialism in Chapter 10, but
the general idea may be illustrated as follows. If a highway authority finds
itself with limited resources and many towns and villages needing by-passes
to be built, should it not prioritize those schemes which will provide the
greatest benefit? In other words, do not the consequences indicate the best
way for public money to be allocated? However, we must consider three
standard objections to consequentialism.
First, it may be
argued that at least some consequentialist conclusions are counter-intuitive
and must, therefore, be wrong. For example, consequentialism may be used to
justify scapegoating an innocent minority for the benefit of the majority.
(Seep. 164.)
Secondly, the
fact that the future is inevitably uncertain makes it impossible to identify
all the possible consequences of all possible acts in order to choose the one
with the most beneficial consequences.
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Thirdly,
consequentialism may require us to evaluate comparisons in ways which are
difficult or even impossible. For example, adapting the example of by-pass
building, the issue maybe whether even a single by-pass should be built.
Suppose experience shows that high-speed traffic on bypasses produces a relatively
small number of relatively serious accidents, while low-speed traffic in town
and village centres produces more, but less serious, accidents. Although, of
course, there will be many factors to take into account, consequentialism
requires us to say whether (taking some hypothetical figures) two fractured
skulls a year are better or worse than a hundred broken legs. (Admittedly,
those who analyse law in economic terms (see pp. 165-169) will try to
calculate the answer in terms of the cost of state benefits, lost working
days and so on. However, quite clearly, there are some consequences which
cannot be valued in purely financial terms.)
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One argument which rejects the possibility of moral
knowledge altogether is known as emotivism.
As the name suggests, the content of the argument is essentially that
statements that purport to be about morality are, when properly understood,
nothing more than statements of emotion. So, if I say abortion is wrong, all
I really mean is that I disapprove of it, while if I say it is right all I
really mean is that I approve of it. It is obvious, therefore, why emotivism
is sometimes called the boo-hurray theory.
Attractive though
emotivism may be to those who are perplexed by the difficulties flowing from
both duty-based and consequentialist arguments, it nevertheless also offends
some of our most basic intuitions. Is it really impossible to say, for
example, that human sacrifice, or genocide, is wrong? Can we really do no more
than express our personal disapproval?
A further common
objection to any argument that rejects the possibility of having knowledge of
morality, and therefore the possibility of making statements about morality,
is that the statement that we cannot make statements about morality is itself
a statement about morality. In other words, that statement is self-refuting.
However, there is an equally standard reply to this
objection, which is based on Bertrand Russell’s Theory
of Types. The argument may be summarized thus:
‘A principle must be accepted by which any expression
which refers to all of some type must
itself be regarded as being of a different and higher type than that to which
it refers. Thus there is a hierarchy of types and a rule that they cannot be
mixed.’ (J.C. Hicks, The Liar Paradox in Legal
Reasoning [1971] CLJ 275 atp. 279.)
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Whether you find
this convincing depends on whether you fall within that category of people
for whom ‘this procedure of proposing a new rule... appears... to be an ad hoc manoeuvre and therefore an evasion of the
problem rather than a fundamental solution of it’. (Ibid.)
Even if you are unwilling to embrace emotivism, you may
be tempted by relativism. The central idea
of relativism is that what is morally right and wrong depends on the society
in the context of which the question is being asked. So, for example,
monogamy may be right in a Judaeo-Christian society, but polygamy may be
right in other societies with other religious beliefs and values.
This approach is comforting to those who are unhappy with
the kind of cultural imperialism which leads those in a politically dominant
position to impose their values on others (or, if unable to do so through
lapse of time, at least to judge others by reference to their own values).
However, once again, the argument offends some of our most basic instincts.
Even if we have no real problem with polygamy, and even if we are willing to
stretch a point in order to accept that there are (or may have been)
societies in which human sacrifice need not be regarded as immoral, are we
really willing to say the same about genocide? Could Auschwitz and Belsen
ever be morally acceptable?
As we have seen, all the views we have considered are
open to significant objections. Nevertheless, most people find themselves
(perhaps more than anything else as a matter of temperament or background, or
both) inclined to favour one rather than the others, even though this means
having to live with substantial counter-arguments; and some people even
manage to do so with a striking degree of self-confidence. However, two final
points may usefully be made.
First, in purely academic terms, it is important to have
at least some grasp of the various possible arguments.
Secondly, many people accept that (whichever way their
personal inclinations may lead them) this is an area in which an element of
self-doubt is an integral part of any intelligent position. Those who are
inclined to accept this view may well recall Oliver Cromwell’s entreaty to
the General Assembly of the Church of Scotland: ‘I beseech you, in the bowels
of Christ, think it possible you may be mistaken’. (Letter of August 3, 1650.) (It is, of course, a
nice irony that his precise choice of words indicates how difficult it can be
to distance yourself from your own personal beliefs.) Alternatively, or additionally,
they may recall Tennyson’s view (see, In Memoriam,
xcv) that
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There lives more faith in honest doubt,
Believe me, than in
half the creeds
the spirit of which applies equally to the secular
context as to the religious one within which it was written. Or they may
simply be among those who find Procrustean beds even more uncomfortable than
inconsistency. (See p.
7.)
Finally, surely nobody would doubt that an absolute
conviction that you are right is no guarantee that you are so. As Oliver
Wendell Holmes puts it, ‘certitude is not the test of certainty. We have been
cocksure of many things that were not so’. (Natural
Law (1918) 32 Harv LR 40 at p. 40.) Doubting the possibility of
certainty anyway, he continues:
‘I do not see any rational ground... for being
dissatisfied unless we are assured... that the ultimates of a little creature
on this little earth are the last word on the unimaginable whole.’ (Op. cit., p. 43.)
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The discussion of the nature of legal theory which you
have just read, and any number of similar discussions which you may read
elsewhere, will leave many students saying ‘So what? How will all this help
me when I am a lawyer? ’. You may even pray in aid Cotterrell’s comment that
‘no-one could suggest that legal theory has at any time been necessary to
help the lawyer earn a living in everyday practice’. (The Politics of Jurisprudence, 1989, p. 223.)
But the key word here is necessary, for
there can be equally little doubt that cases do arise where practitioners
with a knowledge of legal theory are better equipped than those who lack it.
(See, in particular but by no means exclusively, the cases discussed in
Chapter 11, dealing with the relationship between law and morality.) Indeed,
it may even be argued that without a
knowledge of legal theory there is a sense in which you cannot credibly claim
to be a lawyer, as distinct from someone who knows some laws: ‘while legal
science is capable of being intelligently learnt, legal facts are capable
only of being committed to memory’. (T.E. Holland, The Elements of Jurisprudence, 13th edn, 1924,
p. 4.)
In similar vein, Holmes, having noted that the English
meaning of jurisprudence ‘is confined to
the broadest rules and most fundamental conceptions’, adds that ‘one mark of
a great lawyer is that he sees the application of the broadest rules’. He
proceeds to illustrate this basic truth with a practical anecdote.
‘There is a story of a Vermont justice of the peace before
whom a suit was
brought by one farmer against another for breaking a
churn. The justice
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took time to
consider, and then said that he had looked through the statutes and could
find nothing about churns, and gave judgment for the defendant.... If a man
goes into law it pays to be a master of it, and to be a master of it means to
look straight through all the dramatic incidents and to discern the true
basis [for predicting what the court will do if the matter ever comes before
it].’ (The Path of the Law (1897) 8 Harv
LR, pp. 474-5.)
Developing this point requires a return to the comment
which concluded Section 1.2, that the study of legal theory takes you beyond laws and into law.
Making the point more explicitly in relation to professional practice, the
value of a knowledge of legal theory lies in the fact that it provides a
principled overview of law as a whole, which enables practitioners to relate
a large number of individualized statements of legal doctrine to, and
evaluate them in the light of, each other. Practitioners with a knowledge of
legal theory will be able to construct arguments, and counter opposing
arguments, with more confidence, and with a greater likelihood of success,
than would otherwise be the case. As Holmes puts it:
‘The remoter and
more general aspects of the law are those which give it universal interest.
It is through them that you not only become a great master in your calling,
but connect your subject with the universe and catch an echo of the infinite,
a glimpse of its unfathomable process, a hint of the universal law.’ (Op. cit., p. 478.)
More polemically, if less poetically, members of the
critical legal studies movement (which is considered further in Chapter 9)
regard a knowledge of legal theory as being unequivocally essential to
practitioners. Thus Alan Thomson challenges the view (which he takes to be
prevalent among both students and practitioners), that legal theory is
marginal, and that the only thing which really matters, even for a radical
lawyer, is to be a good lawyer:
‘Critical legal theory must... make explicit the implicit
theory on which the existing legal rules, institutions and practices are
based, with the aim of showing that since that theory cannot support what it
claims it can, the world could be otherwise...’
and
‘critical legal theory attempts to reconnect law with
everyday political and moral argument, struggles and experiences, with all
their attendant incoherences, uncertainties and indeterminacies. Most
importantly, in rejecting a view of law as the expression of reason, critical
legal theorists reveal, in different ways, law as the expression and medium
of power.’
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(Foreword:
Critical Approaches to Law: Who Needs Legal Theory?, in Ian
Grigg-Spall and Paddy Ireland (eds), The
Critical Lawyers’ Handbook, 1992, pp. 2-3.)
Ronald Dworkin,
who is by no stretch of the imagination a member of the critical legal
studies movement, goes even further than Thomson, arguing that legal theory
and legal practice are, in fact, two aspects of a single, seamless, whole.
(Seepp. 129-130.)
Finally, however,
although it is easy to justify the study of legal theory by reference to the
demands of legal practice, it is not necessary to do so:
‘It is perfectly proper to regard and study the law
simply as a great anthropological document. It is proper to resort to it to
discover what ideals of society have been strong enough to reach that final
form of expression, or what have been the changes in dominant ideals from
century to century. It is proper to study it as an exercise in the morphology
and transformation of human ideas.’ (Oliver Wendell Holmes, Law in Science and Science in Law (1899) 12 Harv
LR p. 444.)
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1
Legal theory
involves a progression from the study of laws
to the study of law.
2
Differences of
terminology between legal theory, jurisprudence
and legal philosophy/philosophyoflaw are largely matters of personal taste.
3
The study of legal
theory involves the use of sources other than the law, including works on
philosophy and political theory.
4
All legal theories
must be seen in the context of the historical period and the culture within
which their authors were working, as well as within the context of the
questions which their authors were seeking to answer.
5
Legal theories are
classified in a variety of ways, but all classificatory schemes are only aids
to understanding and not substitutes for it.
6
There is no
universally accepted way of identifying what is morally right and what is
morally wrong, but two of the major approaches to these questions involve
theories that are either duty-based or consequence-based.
7
Legal theory can be
relevant to practitioners of law when it makes them think about the basis of
what they are doing. It also has its own intrinsic value as a branch of the
study of ideas.
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Cotterell, Roger, The
Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 1989
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Friedmann, W., Legal Theory,
5th edn, 1967
Hicks, J.C., The
Liar Paradox in Legal Reasoning [1971] CLJ 275
Holland, T.E., The Elements
of Jurisprudence, 13th edn, 1924
Holmes, Oliver Wendell, Law
in Science and Science in Law (1899) 12 Harv LR 443
Holmes, Oliver Wendell, Natural
Law (1918) 32 Harv LR 40
Holmes, Oliver Wendell, The
Path of the Law (1897) 8 Harv LR 457
MacIntyre, Alasdair, A Short
History of Ethics, 2nd edn, 1998
Sprigge, T.L.S., The
Rational Foundations of Ethics, 1990
Thomson, Alan, Foreword
in Grigg-Spall, Ian and Ireland, Paddy (eds) The
Critical Lawyers’ Handbook, 1992
Warburton, Nigel, Philosophy:
The Basics, 3rd edn, 1999
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