The Limits of Theoretical Disagreements in Jurisprudence
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- Published: 14 October 2020
- volume 35 , pages 117–142 ( 2022 )
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- Adam Dyrda ORCID: orcid.org/0000-0002-3032-8221 1 &
- Tomasz Gizbert-Studnicki 2
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This paper discusses the “positivistic” idea of the limits of law in various contexts: the conceptual problem of the “limits of law”, the limits of legal interpretation and the limits of theoretical disagreements in jurisprudence. In the latter case, we briefly show how contemporary “reflective” or “critical” positivist theories approach the possibility and limits of disagreements over the “grounds” of law. In what follows, we argue that these theories, which argue for a form of an “institutional” limit for admissible “legal” reasons as built upon theories of basic concepts or normative theories of interpretation, are themselves actually underdetermined by “legal culture” or, so to speak, a “folk theory of law”. In the final section, we outline how a folk theory of law constrains both conceptual and interpretive enterprises in jurisprudence.
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1 Limits of law
The question “what are the limits of law?” is ambiguous. The first basic interpretation of the question pertains to political philosophy and refers to the scope of legal regulations. It is understood as a question regarding the scope of legal regulations that is morally justified. Does the law have moral legitimacy to regulate all spheres of social life or should there be certain spheres of life that should be exempt from legal regulations? This is a normative matter since the answer must be based on considerations pertaining to the issues of individual freedom, collective values, etc. As such, this matter belongs to both political and moral philosophy.
A second interpretation of the question refers to the practical ability of law to effectively regulate certain fields. Are there any areas of social life in which the law is not able to effectively influence human behaviour and in which, therefore, any attempted regulations prove to be ineffective? The answer to this question must be based on sociological and psychological knowledge related to human motivation and regularities in the decision-making process. Such knowledge should be empirically justified. The question of the limits of law in this meaning pertains to the spheres of sociology and psychology of law.
A third interpretation refers to the scope of legal authority and/or legal power. This relates to the idea that law provides limitations for authorities and lawmakers; the idea of the rule of law along with the requirement that legal decisions should not be arbitrary. As stressed in many approaches to law [e.g., Kantian; see [ 24 : 55–58]], the main problem of the limits of law is that not all coercion in the name of law can be justifiable [ 56 : 8; see also 8 : 15].
A fourth interpretation of the question concerning the limits of law is related to law’s stability. As Tuori puts it, “if there is something immutable in the law, this something imposes limits on the mutable elements, and, consequently, on the competence of the legislator” [ 56 : 18]. Seen from this perspective, the immutable elements of law were stressed by various theories of law. Natural law theories determined the immutable and universal borderlines of the lawgiver’s will. Although, in general, legal positivism focused rather on the mutable and, thus, the contingent nature of laws and legal orders, particular positivist theories provided us with certain universal and immutable characteristics of law and the nature of law. For Kelsen, such a universal element was embedded in the structure of legal cognition, in the invariant formal structure of the law and the basic concepts determining this structure, including the concept of Grundnorm [ 56 : 21]. Hartian positivists referred to the invariant structure of all mature municipal legal systems as the system of first- and second-order rules, which accounted for the contingent evolving character of law.
In its fifth and most interesting meaning for us today the question of the limits of law is understood as a general question of delimitation or demarcation [ 29 , 39 ]. Are there boundaries between law and morality or other social norms? Can law be defined or identified without recourse to morality? The fundamental divide within legal philosophy is organised around this kind of questions. The founder of contemporary legal positivism, H.L.A. Hart, famously argued that law and morality are different but related phenomena [ 20 ]. Adherents of various versions of natural law argue that law should be understood as a branch of morality. The core thesis of contemporary legal positivism is that law is a matter of social facts alone [see, for example, 52 ]. This thesis is denied by natural lawyers who argue that law is a matter of both social and moral facts. An even wider domain of legally relevant reasons is invoked by legal realists or critical legal theorists. Footnote 1 This thesis, in turn, is questioned by legal positivists whose arguments are related to a “limits of law” thesis or “limited domain of law” thesis. The first thesis claims that “there is a test which distinguishes what is law from what is not” [ 39 : 842]. The second claims that “in most advanced legal systems [there is] a substantial quantity of otherwise valid social norms, or otherwise valid sources of decision, that law refuses to accept” [ 48 : 1915].
But even if one accepts the positivistic stance, the problem of demarcation does not disappear. Positivism is in the first instance a theory of legal validity. Rules are legally valid if they satisfy the criteria set out in the system’s rule of recognition. The rule of recognition is a social rule determined solely by certain social facts [ 2 ]. The controversial matter within the positivistic camp is whether the criteria of legal validity set out by the rule of recognition must be purely descriptive as hard positivists claim or whether those criteria may appeal to morality as soft positivists claim. Irrespective of this controversy, two other issues arise.
The first is that legal positivism as a conceptual theory of legal validity does not develop any specific theory of legal interpretation. Assuming that legal positivism is true, we are able, based on the criteria set out by the rule of recognition of a specific legal system, to determine the set of valid legal rules. But this does not yet determine how those rules should be interpreted and applied. Here a new question of delimitation or demarcation arises. Is legal interpretation always morally neutral or does it necessarily involve an appeal to morality? Raz, the most important adherent of hard legal positivism, claims on the one hand that for conceptual reasons, the criteria of legal validity that are set out in the systemic rule of recognition cannot refer to morality while, on the other hand, he claims that legal interpretation frequently involves moral elements. He famously distinguished “reasoning about the law” and “reasoning in accordance with (or according to) the law”. Footnote 2 The outcome of the former is the conclusion identifying valid legal rules; the conclusion of the latter is a resolution of a practical legal question that has arisen before the law applying agency. The reasoning about the law does not involve any moral components while the reasoning in accordance with the law, in most cases, does involve recourse to morality. At first glance, this does not contradict the main tenet of legal positivism, as legal positivism is a theory of legal validity and not a theory of legal interpretation and the application of law. Legal positivism does not tell judges how to decide cases. But does this mean that legal positivism may totally ignore the problem of interpretation and as such does not impose any constraints on interpreters? We return to this question later.
The second problem for traditional positivism is that it cannot account for the phenomenon of genuine theoretical disagreements in legal practice. Even though the system of “positive” law is mostly conventionally established by means of human decisions, in any system there still may arise disagreements with respect to “the grounds of law” or, so to speak, with respect to admissible reasons justifying certain “legal” outputs (propositions about one’s rights or obligations). Following Dworkin, by “grounds of law” we mean the ultimate facts (social. moral or other) that make legal propositions true [ 8 : 5]. Footnote 3 Lawyers, judges, parties to the dispute or even academics may disagree about what is the correct theory of legal validity (what counts as a ground of law. Theoretical meta-interpretive disagreements may analogously arise about what determines the correct theory of legal interpretation. These kinds of disagreements are, however, held within a certain sphere of underlying agreement with respect to what counts as an admissible argument. Thus, one may speak of the “limits of theoretical disagreements”. Since the intuition pertaining to the limits of law appears to be a major premise for legal positivists, it is no surprise that after recognising such disagreements as a serious challenge to a traditional positivist picture of law, new “reflective” legal positivists decided to accommodate them within the positivist vision of law. Thus, the idea that “law has its limits” has been superseded by the idea that there are certain, mostly institutional limits imposed on the reasonable discussions about what law is and how we should interpret it.
Since the problem of the limits of interpretation appears more tangible from a practitioner’s perspective, we elaborate on that first. Then, in the third section, we turn to the more general problem of the limits of theoretical disagreements.
2 Limits of Legal Interpretation
What are the limits of legal interpretation? Let us assume for the purpose of discussion that a specific rule has been assessed based on the rule of recognition as a valid legal rule. The question arises whether this rule is applicable to a specific case under consideration. To answer this question, the rule must be interpreted. The interpretation of law sometimes consists of complex reasoning in which recourse is made to various reasons. It appears beyond any doubt that the scope of reasons that may be involved in this reasoning is limited. Not all possible reasons may be invoked as legal reasons, the use of which is permissible in the interpretation of law. We have here in mind justificatory reasons and not motivational reasons. We are interested in a normative question of how legal rules should be interpreted and not in a psychological question regarding what motivates judges and other legal officers to interpret legal rules in a particular way.
But why is the limiting of interpretative reasons necessary? If there were no limits to legal interpretation, then the use of any reasons would be allowed. Therefore, there would be no limits for judicial discretion, and judicial decisions would be fully unpredictable. This would mean that law is not able to fulfil its major function of the protection of expectations. Thus, the idea of limits of interpretation appears to be essentially related to the idea of rule of law.
This point is made quite explicit from a slightly different perspective by Raz. Let us imagine a purely discretionary system in which judges have no duty to apply any pre-existing rules or precedents, but they are subject to a single instruction: they should make the decision they think best on the basis of all valid reasons [ 41 : 138]. Pursuant to Raz, such a purely discretionary system cannot be called “law” as such a system would not have a guiding function for citizens and, therefore, no expectations as to the judge’s decision would be possible. Law must necessarily consist of rules the courts are bound to apply regardless of the view of their merit [ 41 : 138]. The judicial duty to apply pre-existing rules is crucial for any legal system; citizens look to those rules for guidance and they expect them to be reinforced by judges.
We consider the protection of expectations the most important function ascribed to law by the folk theory of law. Footnote 4 It is our view, one which we have defended elsewhere [ 11 , 12 , 15 ] and to which we will return to in the second part of this paper, that each legal theory strives to rationally reconstruct the folk theory of law composed of certain truisms or platitudes that are generally accepted by the folk. Law is a social artifact constituted by collective beliefs. In the absence of such beliefs (perceived as platitudes about law), law does not exist. Therefore, no legal theory and no theory of legal interpretation can ignore commonly accepted beliefs although it may be a matter of controversy which beliefs are commonly accepted and which of them are platitudinous.
Therefore, the protection of expectations is the basic function of law and must be considered by each legal theory even if such a theory declares its descriptive nature as legal positivism does. Of course, this value must sometimes be balanced against other values such as justice, efficacy, etc., with respect to a particular case, but it must be always taken into account in resolving cases.
If that is true, the scope of admissible reasons in legal interpretation must be somehow restricted. If all thinkable justificatory reasons were admissible, then there would be no protection of expectations. The wording of legal rules would not restrict judicial decisions and any decisions based on any reasons whatsoever would be possible.
One further matter must be explained. What we have in mind are admissible or permissible reasons and not prevailing or decisive reasons. We need to discriminate between such reasons that are admissible for justification of an interpretative decision -admissible reasons- and such reasons that are excluded or prohibited -inadmissible reasons. Among admissible reasons, there might be such that for a given case they are not applicable or are even wrong and, therefore, must be eliminated in favour of other reasons. In any case, such reasons must be argued against, defeated and rejected and cannot be simply ignored. The rejection of reasons that are inadmissible does not require counter-argumentation; they should be simply ignored.
We shall call reasons that are admissible in the interpretation of law “legal reasons”. The claim that justificatory reasons in the interpretation of law must belong to the set of legal reasons does not imply any specific borderline between law and morality. Legal reasons in the meaning defined above may belong to various areas; they may be semantic, economic, moral or prudential among other reasons. We claim only that the scope of legal reasons is restricted in the sense that not all conceivable reasons belong to the set of legal reasons. Footnote 5 Therefore, the question of the limits of legal interpretation cannot be identified with the question of demarcation between law and morality; moral reasons may appear on both sides of the demarcation line.
The interpretation of law is notoriously controversial. So called “hard cases” frequently arise. For the sake of brevity, let us adopt a simple model of interpretation. This model assumes that legal interpretation is guided by rules of interpretation. Obviously, this does not mean that judges and other legal officials always follow the rules in the heuresis of interpretation, but only that they refer to rules of interpretation when justifying their decisions. In the model elaborated by Wróblewski, two levels of rules were distinguished [ 61 : 74; 62 : 91]. At the first level, a distinction is made between linguistic, systematic and functional or teleological rules. The second-level rules resolve conflicts between those first-level rules. The role of the rules of interpretation is to determine the admissible reasons for interpretative decision.
In each legal culture, several normative theories or doctrines of interpretation exist [ 60 : 143; 62 : 61–72]. A normative theory of interpretation is composed of a certain number of first-level and second-level rules of interpretation which provide, in principle, a solution for every interpretative problem. As it appears, there are two types of controversy between various normative theories of interpretation. The first relates to the very legitimacy of certain first-level rules. For example, textualists deny the legitimacy of teleological rules or even the legitimacy of rules referring to the intention of the legislator [ 47 : 16]. The legitimacy of such rules and, therefore, interpretative reasons based on such rules is denied in abstracto. They simply should never be applied. The second type of controversy relates to the priority of specific first-order rules. If there is a conflict between, for example, a linguistic rule and a teleological rule, which should have priority?
The first type of controversy is characteristic of common law legal culture (at least for American). Most discussions between supporters of conflicting views are of an axiological nature and relate directly to the legitimacy of first-level rules, not to ways of resolving conflicts between those rules. At stake is the existence or absence of the proper axiological justification of various first-level rules. Rules that are considered in abstracto as lacking in axiological justification should be abandoned. The consequence of such an approach is that no conflict between various rules would arise. For example, purposive rules are rejected in abstracto by adherents of formalism while rules referring to the intention of a drafter of the constitution are rejected by supporters of the original meaning rule. The proponents of the respective positions maintain that certain rules should never be applied. For this reason, a formalist, for example, would find no conflict between the purposive rule and the plain meaning rule because the former would not be considered. If this is the case, there is no need to introduce the theoretical construction of second-level rules of interpretation.
The second type of controversy is common in continental legal cultures. In those cultures, the general legitimacy of various types of first-level rule (linguistic, systematic, teleological) is not denied. For example, no one denies the rule that the prescribed legal definition of a word should be followed or that if the same word or phrase occurs more than once in the same legal text, the same meaning should be ascribed to each occurrence. Similarly, the rules that the structure of a legal text should be considered in the process of interpretation, or that a statute should be interpreted in accordance with its purpose, are not challenged. Difficulties occur when the application of one first-level rule leads to the ascription of different meaning to the same statute compared with the application of another rule. In such a situation, the first-level rules remain in conflict. The existence of such a conflict cannot be identified in abstracto . For example, there is no logical inconsistency between the first-level rules of linguistic and teleological interpretation. They simply indicate different facts or circumstances as reasons for an interpretative decision. A conflict between such reasons only develops in concreto. The application of a rule of linguistic interpretation—that the plain meaning of the legal text should be followed—may in concreto be in conflict with the application of a rule of teleological interpretation and requires that the interpretation should accomplish the purpose of the statute. If such a conflict arises, it should be resolved by the application of second-level rules of interpretation [ 16 ] that determine (i) the sequence in which the first-level rules are to be applied and (ii) the priority relation between them in case of conflict.
The problem with second-level rules is twofold. First, there are no second-level rules that would be unconditionally and generally accepted. Second, even individual judges do not apply second-level rules in a consistent manner. For example, a judge might sometimes give priority to the rules of teleological interpretation and sometimes to the plain meaning rule. Usually, the justification of such a decision does not refer to any particular “ready-made” second-level rule. Such a reference is not ordinarily deemed to be a sufficient reason for an interpretative decision due to the highly controversial nature of second-level rules, since various normative theories of interpretation adopt different second-level rules. A proper justification requires direct reference to the values underlying the conflicting first-level rules.
Apparently, even if the first-level rules are conventionally accepted tools of legal interpretation, there is no such conventional acceptance with respect to normative theories of interpretation that provide us with the second-order rules of interpretation. This leaves us with an inevitable disagreement over: (i) which theories are in general admissible in the interpretive discourse and (ii) which theories among these are particularly well suited to the interpretive tasks at hand in any given case. This is the problem with meta-interpretive theoretical disagreements. One may ask what the limits are regarding this and other kinds of theoretical disagreement in law. We turn to this question now.
3 Limits of Theoretical Disagreements
The question of the limits of law or its interpretation is thus a question of which kinds of reason are admissible in legal discourse—either in general or in the context of the application and interpretation of law. Schauer rightly identifies the problem of the limits of law as one of the essential problems of general jurisprudence [ 48 ]. Schauer analyses the “limited domain thesis”, namely:
the proposition that there are in most advanced legal systems a substantial quantity of otherwise valid social norms, or otherwise valid sources of decision, that law refuses to accept. If law is a limited decisional domain, arguments permissible in other and larger domains become impermissible in law. [ 48 : 1914–15]
Schauer does not take the question about the limited domain of law to be a merely conceptual question. He also opposes narrowing the idea of such a domain to the domain of norms and arguments. He writes that “the limited domain hypothesis is about the full range of decisional inputs, and not just about norms, rules, or arguments” [ 48 : 1917]. This approach appears to be correct,for in our terms “decisional inputs” are simply “reasons”. Note, however, that one may have many reasons to see something as a legal norm, obligation, duty, etc. There are many kinds of reasons that may be embedded in legal practitioners’ “webs of belief”. Some of these reasons are conceptual, some are empirical or factual and some are descriptive whereas some are normative. The basic question law is supposed to resolve is practical—what one ought to do—and the decision about concrete legal obligation may be justified by reference to such reasons. In that context, the idea that law is a limited domain allows for the restriction of the scope of considerations and related reasons that will influence “legal” judgments and decisions.
With all-things-considered decision making as the baseline, the limited domain hypothesis posits that an appreciably large number of considerations that might be available in all-things-considered decisional domains are unavailable to law. [ 48 : 1930]
This idea appears to be closely related to an old idea that the main function of rules in general is to exclude time-consuming deliberation and provide subjects with clear directives as to how they ought to behave [ 41 : 59]. Nonetheless, Schauer recognises that the differentiation between law and non-law—or to use his words, “the differentiation of legal from other decisional domains”—need not only pertain to the differentiation of decisional sources . As such, he recognises that apart from the conceptual differentiation between various legal and non-legal kinds of sources, there might be a kind of procedural differentiation pertaining to the decision - making mechanisms. Footnote 6
Another means of differentiation appears to square with the general idea that identifying sources of law and interpreting them are two separate things. However, both means of differentiation—the differentiation of sources and the differentiation of procedures applied to these sources —are rooted in the very same idea. A judge, who, to use James’s phrase, “given previous law and a novel case […] twist[s] them into fresh law” [ 23 : 116; cf. 57 : 126] may justify his/her decision only by reference to reasons that are recognised as “legal reasons” in either a source-based or procedure-based sense. One may differentiate between conceptual legal reasons, related inter alia to identifying and validating legal sources , and other types of procedural reason aimed at dealing with established sources. Interpretive reasons espoused with the idea of two types of rules of interpretation of law referred to above are a good example.
A serious challenge to the “limited domain thesis” in both versions, whether conceptual, as related to sources, or procedural, as related to the process of interpretation, is that there is no general agreement between legal scholars and legal practitioners as to the scope of admissible reasons. It is one thing to agree that law must have boundaries of some sort; it is quite another to agree what these boundaries are. The answer to this question is a matter of philosophic-institutional controversy. Such controversies may arise everywhere in any jurisdiction, since they have a common root: a folk “theory” of law that comprises of various types of platitudes about law and institutions; we return to this issue below. The folk intuition that law has limits has always been a central platitude underlying any positivist approach to law even though it contradicted another trivial idea, namely that law is an essentially discursive, argumentative and thus agonistic practice [ 36 ].
Dworkin referred also mostly to the intuition that law has limits when he elaborated on the idea of “theoretical disagreement” in law. His distinction between empirical and theoretical disagreements serves nowadays as a basic departure point for many general jurisprudential enterprises. “Empirical” disputes arise when judges agree on the grounds of law but disagree over whether those grounds are satisfied in a specific case. Footnote 7 However, one may worder how such grounds are selected and justified in the first place. Dworkin famously argued that “theoretical” disagreements regarding the proper selection of the “grounds of law” Footnote 8 are a central feature of a legal practice [ 8 , cf. 27 : 1220]. Theoretical disagreements are commonly treated as a real phenomenon—only their scope is questioned. Hartian positivists used to argue that as a conceptual matter such disagreements were not to be considered relevant to the understanding of the nature of law, which was supposed to be thoroughly conventional [ 51 ]), or they argued that the number of such disagreements was insignificant. They appear only in the narrow minority of cases, in the highest courts—as Leiter puts it, on “the pinnacle of the pyramid”. Leiter claims that “theoretical disagreements about law represent only a miniscule fraction of all judgments rendered about law, since most judgments about law involve agreement, not disagreement” [ 27 : 1226]. However, such a thesis is more an empirical thesis than a conceptual one.
Moreover, a distinction has been introduced between various types of theoretical disagreement. D. Smith argues that one should differentiate between theoretical disagreements about shallower grounds of law and theoretical disagreements about deeper grounds of law [ 53 : 461–462). The shallower type of disagreement concern either (i) the criteria for ascertaining the sources of law in a given legal system or (ii) the ways in which these sources determine legal decisions; the deeper type of disagreements concern either (iii) what determines the very sources of law or (iv) what determines the ways in which sources of law determine legal decisions. Note that types (i) and (iii) are disagreements over the concept of law, or at least different “legislative theories” or theories of legal validity, whereas (ii) and (iv) are meta-interpretive disagreements over methods of interpretation.
Only recently have positivists agreed that the phenomenon of theoretical disagreement poses a serious challenge to the traditional positivist picture of law [ 11 , 17 , 18 , 51 , 52 , 53 ]. Dworkin’s claim that theoretical disagreements are the most important feature of legal practice is the consequence of his holistic and pragmatic approach [ 9 : 160]. The central role that such disagreements play is also related to their philosophic-practical dimension. Footnote 9 The Dworkinean approach to disagreements is, however, somehow paradoxical, as the mere existence of such disagreements, which are for him genuine disagreements, may suggest that law has no limits, or at least the limits of law are as widely sketched as the reach of these disagreements. To restrict the scope of the law, Dworkin reaches for specific interpretive methods. This position may be understood as paradoxical. One cannot take theoretical disagreements seriously (which amounts to taking disagreeing parties as epistemic peer s, that is as equally reasonable parties who use equally good arguments) and simultaneously argue for one right position in every disagreement. That is what Dworkin does by introducing his interpretive theory and simultaneously demoting legal positivism as an unreliable theory of law [cf. 10 , 11 ]).
Contemporary legal positivists try to accommodate the phenomenon of theoretical disagreements by showing that the positivist institutional scaffolding may play the role of a frame of reference to such disagreements. All these considerations aim to deal with the phenomenon within certain limits and without arguing for one right position in these disagreements. Such versions of legal positivism appear to take a “meta-theoretical” step. They do not urge one conceptual theory of legal sources or one right interpretive stance. Rather, they try to reflectively posit this inevitably agonistic legal element [ 37 ] within the structure of institutional reality.
“Reflective versions of positivism” still conceive law’s existence as dependent on the consistent practice of officials. However, they approach that practice differently than classical Hartian positivism. On the one hand, such theories are more abstract and inclusive than Hartian positivism on the “subject-level”, which pertains mainly to the identification of the content of the concept of law. Footnote 10 On the other hand, such theories that try to “take theoretical disagreements seriously” must embrace a meta-theoretical perspective, taking a stance on the status of the argument between different legal theories, or concepts of law. Thus, “reflective legal positivism” operates at two levels: the subject level of understanding and explaining the coherent practice of officials and the meta-theoretical level of discussing the controversy between different, also non-positivist, subject-level theories. The crucial question is whether positivist theories that make such a move up the theoretical ladder do not betray their basic subject-level assumptions. Obviously, the proponents of this approach must decline, at least tacitly, the distinction between theory and meta-theory; this is what makes their theories “holistic” and, thus, similar in some extent to Dworkin’s approach. However, they remain positivist, as they focus on limiting the scope of theoretical disagreements by reference to a refurbished positivist “social thesis”.
Three examples of such recent “reflective positivist theories” come to mind. Since we do not have space here to discuss them thoroughly, we limit ourselves to the presentation of their most important features. The first is Shapiro’s theory of planning, which sees the legal system as a wide complicated social plan, the realisation of which is a joint commitment of planners and agents. The second is Golanski’s institutional account of theoretical disagreements as disagreements held within the “institutional structure of law”. The third is Tuori’s “critical legal positivism”. Let us elaborate on them briefly.
In Shapiro’s view, “theoretical disagreements” are understood as disagreements between various interpretive methodologies. Plans determine the structure for many types of social interactions, but they do not determine them completely. Rather, plans are sometimes more general and sometimes more detailed and specific. Moreover, plans do not necessarily determine legal outcomes. An important element of this theory is the relation between various interpretive methodologies and the way one should choose between them. At this point, Shapiro’s positivism makes a “meta-theoretical step”. Plans allow for a certain distribution of trust between agents. Planners who trust more in the reflective abilities of agents leave them more discretion and allow them to apply more demanding interpretive methodologies (like, for example, the Dworkinian one). Where, however, the scope of trust is limited, the plans are more detailed, and the interpretive methodology should be less reflective and less demanding. It appears that, in Shapiro’s view, the right way to resolve any theoretical disagreement—which is understood as a disagreement between interpretive methodologies—is to analyse the institutional structure of plans to see the actual division of trust within the system [ 52 : 313].
The second theory by Golanski is a “legal” specification of Searle’s institutional theory. It claims that there are two ways of understanding “theoretical disagreement”. According to the narrow view, the disagreement is about which methodology of interpretation should be applied to legal materials in particular circumstances (originalism, evolutionism, intentionalism, consequentialism, etc.). This may be consistent with Shapiro’s approach. According to the wide view pursued by Dworkin, theoretical disagreements are understood as disagreements over the soundest interpretation of a certain aspect of legal practice [ 8 : 87; cf. 17 : 24]. Golanski claims that contemporary institutional philosophy has produced analytic tools that allow us to differentiate between various types of theoretical disagreement, most of which do not have moral character. This is precisely that differentiation which makes this theory “positivistic”.
Golanski argues that:
[a]n understanding of the logic of institutional power and authority shows that ‘theoretical’ disputes in law are, in the first instance, best understood as controversies over the standards for determining whether the existing legal materials are sufficiently directed at the present circumstances, and whether they provide a solution to the new matter with sufficient exactness. [ 18 : 229–230]
Although these kinds of disagreement relate to the relation of fit between existing legal materials and new contexts or situations, they are not necessarily moral disagreements because disagreeing parties do not necessarily aim at the moral justification of that relation [ 18 : 264]. As such, they belong to the (i) and (iii) types of disagreement described above.
Note that both theories provide a test for the “limits of theoretical disagreements in law”. Such a test could be interpreted as a test determining which theories of law and legal interpretation are admissible in legal discourse as in the case of Golanski’s theory, or which shall have priority in certain contexts as in the case of Shapiro’s theory. Note, however, that both theories appear to assume that there might be a set of various theories admissible in legal discourse—the set that would be delimited by institutional designers’ plans and arrangements.
The (Razian) thesis of the “limits of law”, namely that “there is a test which distinguishes what is law from what is not”, is now superseded by a “limit of theoretical disagreement” thesis according to which “there is a test which distinguishes what is an admissible legal theory or legal argument from what is not”. Even though this test works mostly with respect to meta-interpretive disagreements, namely disagreements related to the methods of interpretation, it may also be used to demarcate the acceptable general theories of law, i.e., of legal validity or of legal sources , from unacceptable ones.
Finally, the third theory we want to refer to is “critical legal positivism” developed by Tuori. This theory provides us with a more general explanation of the admissibility of certain types of reasons in legal discourse. Tuori argues that law should be understood as a multi - layered phenomenon where social practices are combined with normative thought [ 56 ]. Footnote 11 In this view, law is not exhausted by concrete legal materials such as, for example statutes, regulations and court decisions, but includes “sub-surface” layers: legal culture and deep structures of the law . Tuori’s reflection grows from the identification of the well-known problems with traditional forms of legal positivism:
[T]raditional positivism has to abandon either the strict separation between the ‘Is’ of empirical social facts and the legal ‘Ought’ (Hart) or presuppose at the top of the hierarchically-structured posited legal order a non-positive, hypothetical norm (Kelsen). [ 56 : 27]
Tuori argues that any alternative to traditional forms of legal positivism “should be capable of providing a solution which does not include the assumption of universal and immutable normative principles ” (Tuori, id.) If we stick to the idea that modern law is “positive”, then this very idea “entails that the substantive limits of modern law, as well as the yardsticks for its legitimacy, have to be found within the positive law” [ 56 : 28; cf. 35 ]. What is most important here is that the theory must embrace “the possibility of an immanent normative criticism of positive law” [ 56 : 28]. Footnote 12 Tuori’s critical version of positivism makes relevant the division between the descriptive social and normative layers of law by “emphasising the constant interaction between the law as a symbolic normative phenomenon and the legal practices producing and reproducing this phenomenon”; this eventually leads to a dialectical revision of the positivist dogma, namely the separation (or separability) thesis. However, the main reason we take Tuori’s theory to be a theory about the positivist limits of theoretical disagreements is best captured by the following quotation:
Immanent criticism cannot expand to a fundamental criticism of the law. By ‘fundamental criticism’ I refer to criticism which is suspicious of the justifiability of all law and which tends to renounce every form of legal regulation of society. This kind of criticism is possible only from outside the law, as autonomous criticism which draws its grounds upon somewhere else than upon the positive law itself. Fundamental criticism is not possible as immanent criticism for the simple reason that immanent criticism, despite its critical nature, also contributes to the reproduction of its object: it sustains the law both as a normative order and as specific legal practices. [ 56 : 29]
One can see that in this dialectical and critical version of legal positivism, there must be a “postivistically” or “institutionally” imposed framework for theoretical disagreements as various forms of criticism may appear with respect to applied concepts and interpretive methods. However, the criticism that “critical legal positivism” has in mind cannot be of a “fundamental” kind. Tuori argues that there are limits for such a criticism, which are determined by legal culture and law’s deep structure. Footnote 13 Furthermore, an essential element of this structure appears to be a conviction that law is an institutionalised, “positivised” practice.
All these “reflective” positivist theories rely on certain important shared intuitions about law’s relation to morality, law’s positivity, and its “institutional” character as well as some general characteristics of legal culture . Hence, we would like to briefly discuss the general way in which various legal theories are admitted into legal discourse.
4 Folk Limitations of Law and Legal Disagreements
One assumes that any serious or genuine theoretical disagreement is a reasonable philosophical peer disagreement about what counts as law or about what methods of interpretation are both acceptable and most suitable either in general or in specific institutional circumstances. However, the question arises of what makes various traditional positivist and non-positivist positions equally admissible in the discourse. Our answer is that various theories may only occupy a legitimate position in theoretical disagreements if they deal with the same or equal evidence by means of shared general scientific methodological standards. Footnote 14 It is a fact that an evidential and prudential equality exists between traditional legal positivists and non-positivists, and is recognised by both sides as epistemic peers. In the case of the dispute between positivists and non-positivists, there is only partial agreement over several sources of law. Positivists accept social sources as sufficient evidence; Dworkineans consider these insufficient. Moreover, positivists deem improper any additional theoretical evidence that their opponents invoke. Nonetheless, this does not preclude all parties from engaging into a reasonable discussion.
This suggests that to recognise the limits of theoretical disagreements, one first scrutinises the way in which they arise. There must be something all theorists share as a start. In our opinion, all significant general legal theories are products of analyses of the concept of law and as such are dependent upon shared folk theories of law. Raz expressed this idea in the following way:
The notion of law as designating a type of social institution is not, however, part of the scholarly apparatus of any learned discipline. It is not a concept introduced by academics to help with explaining some social phenomena. Rather it is a concept entrenched in our society’s self-understanding. It is a common concept in our society and one which is not a preserve of any specialized discipline […]. It occupies a central role in our understanding of society, our own as well other societies. In large measure what we study when we study the nature of law is the nature of our self-understanding […]. It is part of our self-consciousness of the way we conceive and understand our society […]. That consciousness is part of what we study when we inquire into the nature of law. [ 43 : 31]
There is no doubt that the traditional positivistic thesis of the “limits of law” discussed above represents a platitude that people living in municipal legal systems generally share. For example, Raz explicitly states that the claim that “law has limits” is “truistic” [ 40 ]. There are also other kinds of platitudes pertaining to other features of a legal system. In his magisterial book, Hart wrote: “The starting point for this clarificatory task is the widespread common knowledge of the salient features of a modern municipal legal system which… I attribute to any educated man” [ 20 : 239–240].
Thus, it appears that this traditional form of legal positivism relies on platitudes about law. Folk intuitions embedded in platitudes constitute the common “understanding” of law and provide an ultimate criterion for determining limits of the concept of law. It would follow that folk theory “genetically” delimits the scope of possible theories of law.
Tuori even provides an elaborate description of how “positivist” theories of law depend on such shared “understanding”:
The positivity of modern law corresponds—so I venture to maintain—to how a typical (continental European) lawyer conceives of the law. (…) [This] formalistic narrative corresponds to the average self-understanding of (continental European) lawyers, although they may only rarely feel a need to make it explicit. Rather, it constitutes a part of what—following Pierre Bourdieu—can be termed their habitus; it is this very habitus that enables them to act as lawyers, as agents in specific legal practices. [ 56 : 7]
And then he admits that,
[t]he account of the law attributed here to the typical lawyer represents a kind of spontaneous positivism. Positivistic legal theory can be understood as the reflexive level of this spontaneous positivism: positivistic theory has given an explicit and systematic expression to the self-understanding of the typical lawyer. [id.]
What is worth stressing is that even early representatives of conceptual legal dogmatism such as Puchta or Savigny argued that positive law was not yet exhausted by legislative sources. In this view, sources of positive law also included legal convictions of the people and the so-called scientific or lawyers’ law; the people’s legal convictions amounting to “the Volksgeist” stood as a more fundamental layer than legislation and the lawyers’ law [ 58 ; via 56 : 152]. Most of this layer was filled with rather practical knowledge. What is however important is that,
in modern society, knowledge about the legal culture can in principle be expressed discursively, transformed from practical into discursive knowledge. This is what is done by legal scholars within theoretical legal dogmatics or by judges when justifying the decisions in hard cases. Conforming to the reflexivity of modern culture, the borderline between practical and discursive knowledge in the consciousness of legal actors is blurred. Yet in exploring the multi-layered nature of modern law, it is important not to confuse the legal culture with its surface level discursive expressions. [ 56 : 163]
The point is, however, that legal professionals have internalised these elements as part of their practical consciousness; they usually employ them in legal practices in at least a partly unconscious way. Thus, as Tuori notes any suggestion that there is a deeper structure of the law underlying the legal culture may be surprising for them [ 56 : 184]. However, he also observes that:
the reflexivity of modern culture makes it possible to transform even practical knowledge about the deep structure into a discursive shape. This is attested to by the legal philosophical literature aiming at reconstructing the deep structure. But knowledge about the deep structure of the law constitutes in the consciousness of legal actors the most fundamental, deepest sedimented layer, whose excavation and discursive formulation is a more demanding task than the articulation of the legal culture. In this respect, the law’s deep structure comes close to what the Freudian psychoanalytical theory, at the level of individuals, calls the subconscious. [ 56 : 184]
This reflectivity squares with the idea of “internal criticism” discussed above. As far as the same practices may receive different but competing discursive articulations, we may speak of genuine theoretical disagreements in legal discourse.
However, one is not forced to accept Tuori’s methodological approach, which relies on critical post-Marxist and post-Freudian trends in philosophy. What is referred to here as a “subconscious” level of shared understanding squares with what is referred to by analytic philosophers under the name of “folk theory”, “ordinary conception”, or “shared/common beliefs” [ 22 , 30 , 31 ]. Thus, Tuori’s point may be reformulated as a claim that what determines legal culture, along with all conceptual and normative arguments, is a folk theory of law. At the beginning of Legality , Shapiro provides the following description of this methodological approach relying on Jackson’s conception of the method of conceptual analysis:
Conceptual analysis can easily be thought of as a kind of detective work. Imagine that someone is murdered. The detective will first look for evidence at the crime scene, collecting as many clues as she can. She will study those clues hoping that the evidence, coupled with her knowledge of the world and human psychology, will help eliminate many of the suspects and lead her to the identity of the killer. In conceptual analysis, the philosopher also collects clues and uses the process of elimination for a specific purpose, namely to elucidate the identity of the entity that falls under the concept in question. The major difference between the philosopher and the police detective is that the evidence that the latter collects and analyses concerns true states of affairs whereas the former is primarily interested in truistic ones. [ 52 : 13]
As suggested above, the folk theory in general would be embedded in ordinary common sense. It need not be specified fully and explicitly, and indeed it usually is not. Any discursive theory of an object or phenomena referred to in folk consciousness would be construed by means of conceptual analysis of folk beliefs. Such an analysis is an armchair attempt to locate the meaning of the terms used in the folk theory in the terms of another by means of testing intuition against possible cases; therefore, it is an exercise in a form of translation or paraphrasing. It is an attempt to locate the meaning of terms of folk theory in terms of a more sophisticated special theory rooted in a metaphysically privileged vocabulary (cf. 22 ).
Shapiro provides a preliminary list of platitudes of the folk theory of law:
The philosophical clues, in other words, are not merely true, but self- evidently so. The key to conceptual analysis, then, is the gathering of truisms about a given entity [ 52 : 13].
Furthermore, regarding law, he continues:
[…] In assembling a list of truisms about law, the legal philosopher must include truisms about basic legal institutions (“All legal systems have judges,” “Courts interpret the law,” “One of the functions of courts is to resolve disputes,” “Every legal system has institutions for changing the law”); legal norms (“Some laws are rules,” “Some laws impose obligations,” “Laws can apply to those who created them,” “Laws are always members of legal systems”); legal authority (“Legal authority is conferred by legal rules,” “Legal authorities have the power to obligate even when their judgments are wrong,” “In every legal system, some person or institution has supreme authority to make certain laws”); motivation (“Simply knowing that the law requires one to act in a certain way does not motivate one to act in that way,” “It is possible to obey the law even though one does not think that one is morally obligated to do so,” “One can be a legal official even though one is alienated from one’s job”); objectivity (“There are right answers to some legal questions,” “Courts sometimes make mistakes when interpreting the law,” “Some people know more about the law than others”) and so on. [ 52 : 15]
Note that, in a sense, these platitudes might relate to other generally shared claims about law associated to the general requirements of the rule of law. Footnote 15 There is a widespread general agreement between legal theorists and laypeople that law should be general, non-retroactive, prospective, not vague, stable, etc. In a recent paper, Raz argues that any theory of the rule of law is an “ideal theory of law’s virtues”. However, he stresses:
There is no agreement about what it is: This lack of agreement is common to important normative institutions and principles, like freedom of speech. The lack of agreement is often a source of strength–people unite in supporting such institutions and principles in spite of diverse views about their nature. But should we not try to establish which of the views is correct? Often more than one is correct, the disagreement is illusory, an illusion resulting from the fact that the term ‘the rule of law’ is used to designate somewhat different ideals. There is no point in verbal disputes about which ideals deserve to be called the RoL [rule of law]. However, it may also be important to distinguish the different ideals, as they are likely to differ in at least some of their implications. [ 44 : 1]
Raz is right in saying that there are disagreements over the theoretical articulations of these values and requirements. But the reasonability of any disagreement over these ideals would be dependent upon rooting these theories in common-sense beliefs about law’s institutionalised and authoritative mode of operation and its ability to guide human conduct. The limits of theoretical disagreements in jurisprudence are fixed by the same shared set of truisms of folk theory that delimit the scope of disagreements over law’s internal virtues. Different ideals may be associated with them and articulated in a theory. But, contrary to Raz, this does not mean that disagreement is illusory for it is still rooted in a shared practical yet not-articulated understanding of law and its functions. That is what makes this disagreement reasonable even though there is no unique correct answer in the discussed matter. This caveat is important for our purposes for this is exactly why, even in the case of accepting a positivist theory of law that declares indifference with respect to admissible theories of legal interpretation, there are obvious limits to legal interpretation and theoretical disagreement circumscribed by that shared understanding (which is, in turn, essentially related to a general and vague idea of the rule of law).
5 Artefactual Concept of Law and Its Analysis
It is worth remarking that there are two roles that a conceptual analysis may play: modest or immodest. As Himma, following Jackson [ 22 ] notes:
The goal is either to understand certain features of the world as they are defined and articulated through our conceptual practices or to understand those features as they actually are independent of the practices that enable us to describe them. [ 21 : 208]
Immodest conceptual analysis provides us with an insight into what the world is like independent of our linguistic practices and conceptual frameworks. It is an analysis of the content of our concept that yields truth about the essential characteristics of the referent [ 21 : 208]. As a result, analysing the way we talk about, use and apply our concepts will yield knowledge not merely of those concepts themselves but also of what the world is like, i.e., of the reality those concepts attempt to conceptualize [ 28 , cf. 6 : 488].
However, the modest conceptual analysis is “the elucidation of the possible situations covered by the words we use to ask our questions” [ 22 : 33]. It gives us an insight into what the world is like as defined by the ordinary understandings that underlie our linguistic and other relevant social practices; it illuminates our concepts—our thoughts and speech—not the referent we might have intended to understand. It does not pretend to give us access to mind-independent reality. The subject matter of our inquiry is the folk theory of items, covered by the concept to be analysed. The purpose of the analysis is to answer the question of how we comprehend the world, not the question of what the world is actually like. As such, this type of analysis will only deliver an understanding of our concepts and will be “ethnographically relative” [ 28 ]. As “an exercise in sophisticated conceptual ethnography” and “glorified lexicography”, such analyses cannot provide what some legal theorists are explicitly after, i.e., a description of the nature of law, of its essential properties.
This distinction has been applied to analyse the methodological approaches of most prominent representatives of general jurisprudence. For example, Himma argued that Dworkin deploys an immodest conceptual analysis whereas positivism deploys a modest conceptual analysis [ 21 ]. Farell suggested that Hart’s positivism deploys modest conceptual analysis [ 14 : 1006; cf. 19 : 577). Meanwhile, Leiter and Langlinais argued that most post-Hartian analytical jurisprudence (Hart, Raz, etc.) deploys immodest conceptual analysis [ 26 : 671-689]; this position appears to also be accepted by Sciaraffa [ 49 ]. It is unclear, however, whether Shapiro [ 52 ] deploys analysis in modest or immodest form. Footnote 16
All these examples show that a reference to a folk theory of law, platitudes about what law is, serve as the best available evidence for legal philosophers. The question is, however, to what extent the results of an analysis (discursive articulations in Tuori’s terms) are really representative of a part of institutional reality and to what extent they merely reveal a discursive thought about something non-existent or fictious. In what follows, we argue that the solution would depend on the selected, metaphysically privileged picture implied by the selected target vocabulary in the conceptual analysis. As we have suggested, reflective positivist theories rely on some version of institutional ontology, which in turn relies on some idea that places law and related concepts within the domain of “artefactuality” (artefact kinds). The target vocabulary of institutional ontology thus implies some sort of realism with respect to artefact kinds.
The main problem we try to deal with in the final part of the paper is thus the problem of how the idea of law as an artefact–institutional concept squares with the thesis that theoretical disagreements have limits. If the main problem we deal with is the problem of determining “a test which distinguishes what is an admissible legal theory or legal argument from what is not”, then we must be able to defend the view that there might be many equally good discursive articulations of folk’s platitudes, such as, for example, analyses and theories of the very same abstract institutional artefact , namely “law” and related practices. Our suggestion is that within certain limits provided by a folk theory of law, any analysis of an artefact concept such as the concept of law will be immodest in the sense that it would capture some essential characteristic of law and would thus square with the realist approach to artefact kinds. Footnote 17 In other words, any analysis of the folk concept of law would yield some immodest results, since it is a folk theory of law that serves as a legitimate point of departure in legal theorising. In connection to this, a couple issues arise.
One interesting issue is a certain type of paradox related to legal theorising. This “paradox of legal theorising” would be a theoretical analogue of so called “paradox of analysis” indicated 75 years ago by Langford [ 25 ]. According to Langford, an analysis of certain supposedly analytical sentences can be either correct or informative, but it cannot be both. In the same vein, legal theories cannot be both trivial and informative since if they are trivial, they do not develop but merely repeat all the truisms about law, particularly the folk theory of law, and if they are informative, then they are inherently controversial because they treat some of the truisms as false, or, at least, reinterpret them in a nonstandard way, as any discursive, coherent theoretical articulation would do. The question is, thus, how can a theory of law or legal interpretation be both informative and true?
Our sketchy way to answer this paradox is to argue that it might not be the very same proposition that must be true and informative. Thus, one may argue that legal theories refer to true folk propositions, the content of which is most probably not fully determined and provide detailed “reconstructions” of these propositions given a certain metaphysical framework. In this light, the problem of the limits of theoretical disagreements would be a problem of the underdetermination of a theory by folk evidence. Disagreeing theorists would refer to the same evidence, but they would analyse and interpret it differently. Footnote 18 To vindicate the phenomenon of rational theoretical disagreement in law, one must assume that there is some truth of the matter that counts. The common content of the concept might be minimal, however. That is why we think it necessary to accept some kind of minimalist essentialism along the lines of, for example, Elder [ 13 ] within an artefactual theory of law and along the lines of Burazin [ 2 , 3 ], Crowe [ 5 ] or Banaś [ 1 ]).
Moreover, we assume that any theory that treats law (or a system of law as a kind of mind-independent institution must treat law as an artifact. Footnote 19 According to the artifactual theory of law:
legal systems are artifacts because they are created by authors (as a rule collective ones) having a particular intention to create the institutional artifact ‘legal system’ based on the authors’ substantive and substantively correct concept of what the legal system is under the condition that this intention be largely successfully realised. The intention required here is, of course, not an individual intention or a sum of individual intentions but the result of collective intentionality. By being institutional by nature, institutional artifacts differ from ‘ordinary’ artifacts (such as chairs, hammers or clocks) in that they are rule-based and require collective recognition (acceptance). [ 2 : 68; cf. 3 : 112–135]
This kind of theory relies on a “function-concept of an artifact” where the general intention required to successfully create an artifact is the intention to make a thing that corresponds to a list of salient functional features that systematically complies with the concept of that thing [ 5 : 741]. X is a social institutional artefact of kind K (e.g., law) if (a) members of a social group have in mind a function-concept of K that includes both its characteristic function and a range of other salient features, and (b) the item in question is collectively accepted as largely complying with that concept [ 5 : 741], it follows that any given social group must have an appropriate concept of K to create a social artefact of the kind K. Footnote 20 Such a pre-conception underlying a given practice, i.e., a folk theory developed around an artifact, may consist of both descriptive and normative beliefs about it.
What we want to argue for squares with a suggestion made by Williams [ 59 ] in his discussion of the essential determination of artefactual functions. He suggests that any practical claim about the “goodness” of an artefact, e.g., “a good law”, invokes the problem of evaluation within theoretical disagreements about that artefact. Williams notes:
[T]he meaning of a phrase of the form ‘a good x’ has to be taken as a whole; and its meaning is partly determined by what fills the place of ‘x’. Can we go further than this and say that in phrases of this form, the meaning of the whole is essentially determined by the meaning of what takes the place of “x”? […] In many cases, it looks as though we might take this further step. For if we consider functional descriptions of artefacts, such as ‘clock’ or ‘tin opener’, or again descriptions of human beings which refer to their roles or jobs or skilled activities, such as ‘gardener’ or ‘general’ or ‘cricketer’ it does seem that if one understands these expressions (at least in the strong sense that one understands what a tin opener is, for instance, or what a general does), then one has understanding, within limits, of what a good thing of that sort is. [ 59 : 45]
The practical discourse consists mostly of such evaluative claims. Legal education is partly about learning what counts as a “good” legal argument and what does not. The idea of law being an artifactual type must, therefore, be supplemented with the idea of at least a partly “institutionalised” legal culture (education, etc.) based on a more fundamental “understanding” of law that provides limits for various kinds of arguments, including evaluative ones, related to law. What vindicates the theoretical evaluative discourse about law is a shared understanding of what a good law is. Our suggestion in this context is that there must be a specific foundational folk theory which would amount to a set of platitudes necessary for a group to share collective intentions and beliefs that are able to successfully create an institutional artefact of a certain kind K in the first place. Such platitudes would be mostly of the functional kind, that is, pertaining to an idea, however vague, of what functions law is supposed to fulfil and, thus, included in the commonly shared platitudes about law’s virtues. Footnote 21 This set of platitudes embedded in a common understanding of law could not be false in that it would be true that any instance of law should possess certain characteristics to perform its essential functions. The inevitable link between normative intuitions about law and the content of the concept of law cannot be denied. Footnote 22 Such platitudes would obviously be supplemented by other sets of platitudes, some of which could be false. For example, people used to hold a distorted view on a God-related authority of law. However, this foundational, essential and interlinked set of platitudes—both normative and descriptive must be shared across legal cultures and jurisdictions otherwise such an enterprise as general jurisprudence would not be possible. So, one should distinguish between a general folk theory that comprises generally shared platitudes about law that cannot be false and that play the role of a necessary reference point for any theory of law and a possible remaining part of folk theory that would be culturally relative and contingent, and thus vindicating particular jurisprudential efforts.
In conclusion, we want to draw attention to the fact that traditional legal positivism, with its main thesis about the limits of law, appears to be the simplest articulation of a set of general platitudes about law—legal positivism as a theory of “obvious law” [ 3 ]. Legal positivism does not account for an “all-considered judgement”, but it has a certain epistemic virtue in that it allows us to determine law’s sources by specific assumed standards. As such, it is an “obvious” input, a conceptual premise, in any reasoning according to law or the application of law. However, if the outputs are counter-intuitive, Moore suggests that we should turn to morally determined theories, or moral reasons, to achieve an “all-things-considered safety-valve judgment”. Thus, non-source-based reasons serve as a “safety-valve” in the system and as such they are also “admissible”.
Theories that argue for such a “safety-valve” simply stress and develop further certain normative platitudes of the folk theory of law. This group of theories includes the “reflective” versions of legal positivism referred to above.
In any case of a discursive articulation of an idea of law, its interpretation, etc., there must be something to begin with. The truism of law’s limits is explained by legal positivism by means of the theory of a determining role of legal practice: traditional positivism with respect to the sources of law and institutional scaffolding: reflective positivism with respect to theoretical disagreements. Positivist theories are, however, quite minimalistic in those explanations. This minimalistic character is manifested in the claim that the rule of recognition reflects some kind of “common meaning” or “use” of the word ‘law’ [ 37 : 316]. In their complicated practice, officials are simply eager to count something as law, and since law is mind-independent only in the weak sense most of them cannot be wrong in doing so. Such an attitude may be plausible from an historical point of view as many lawyers and officials believe that in the majority of legal cases, the answer to the question “what is law?” is not a difficult one. Thus, the general intuition that most cases are “easy cases” is reflected in the positivist theory—the theory of the “obvious law” [ 33 : 446; cf. 15 : 327].
One will, however, always remember that folk theory reflected in common institutional practices of both officials and lay people may be articulated in various ways. Foundational folk theory, related to the general beliefs about rule of law, is a necessary reference point for a legal philosopher. Certain platitudes must be accepted by anyone who wants to theorise about law. Theoretical disagreements arise due to underdetermination of theories by the same platitudes. Theories that ignore the foundational platitudes of law are not theories of law. They do not participate in a reasonable theoretical disagreement about law. They are the theories of a different objects.
F. Schauer writes: “To these assembled theorists, schools, and perspectives, and thus to much of the pragmatic and instrumentalist core of twentieth-century American legal thought, legal cognition is largely unbounded, and so the basic motivation behind the concept of the rule of recognition turns out to be empirically false” [ 48 : 1927].
This Razian distinction can be framed in an even simpler way as a distinction between law and legal reasoning, where the decisions produced in the process of reasoning are never fully determined by law alone [ 42 ; 48 : 1949].
This formulation does not determine ultimately whether these “grounds” have to exist previously and independently of the application of any legal interpretive method (as at some point the reading of Dworkin’s early work Taking Rights Seriously [ 7 ] might suggest) or whether the existence and content of these “grounds” are always partially dependent on certain interpretive activities (for even at “pre-interpretive stage” where such grounds are identified and where the minimum of interpretation is invoked, as later Dworkin suggests [ 8 ]).
Raz denies that law has any central function [ 43 ]. Postema argues that Raz’s theory implies that law has a central function of supplying a framework of practical reasoning designed to unify public political judgement and coordinate social interaction [ 38 : 80]. We think that such a function (or a cluster of functions) is strictly connected with the idea of protection of expectations (and as such related to general requirements of the rule of law).
In the case of Dworkin’s interpretive theory, we might say that the scope of legal reasons is vast (judge Hercules is supposed to not exclude any of them a limine ). Nonetheless, some conceivable reasons are excluded, such as reasons related to certain policies , as long as they are not somehow implicated in questions about rights [ 8 , cf. 45 : 1230].
“The domain of legal sources might be coextensive with the domain of social sources, for example, but the legal system could still use those sources differently” [ 48 : 1932]. Further, Schauer develops the idea in the following way: “Because applying different procedures to the same inputs would produce different results for some decisions—insofar as the array of results produced by the same sources with one procedure would be noncongruent with the array produced by another procedure—legal procedures would make a difference even if legal sources were not different” [id.].
Empirical disputes arise when judges agree on the grounds of law but disagree over whether those grounds are satisfied in a particular case [ 8 : 5].
Theoretical disagreements are about the grounds of law and revolve over such questions as: what facts have to obtain in order for X to be law; what makes legal propositions true [ 8 : 5].
Recall his famous statement: “Any practical legal argument, no matter how detailed and limited, assumes the kind of abstract foundation jurisprudence offers, and when rival foundations compete, a legal argument assumes one and rejects others. So, any judge’s opinion is itself a piece of legal philosophy even when the philosophy is hidden, and the visible argument is dominated by citation and lists of facts. Jurisprudence is the general part of the adjudication silent prologue to any decision at law” [ 8 : 90].
The subject-level differences are the differences between the theories of the same kind addressing similar questions and problems like, for example, the question of the grounds of law as related to law’s sources .
The thesis that law is a multi-layered phenomenon has been discussed by many scholars, including J. Wróblewski. However, Tuori is inspired by the views of Ewald and Habermas [ 56 : xiii].
“If we can define the limits and the criteria of validity of the law from within its positivity, we have demonstrated the possibility of an immanent legal criticism which employs inter-subjectively acceptable substantive criteria. […] In Kelsen’s view, a substantive normative criticism would require a moral position outside the law” [ 56 : 28].
“We can perform the task of determining the law’s limits while respecting the positivity of modern law if we understand it as a multi-layered phenomenon where the surface level of the discursively formulated legal order—of regulations, court decisions and scholarly standpoints—is sustained by the legal culture and the law’s deep structure […] [T]he deeper layers of the law create the possibility for legal practices and the surface-level normative material these produce. But at the same time, the sub-surface levels of the legal culture and the deep structure also impose limitations on this material. Limitation is the inseparable obverse side of constitution” [ 56 : 217].
We take this requirement to be very general indeed, to the extent it allows for far reaching methodological debates over proper method in general jurisprudence.
The striking variety of truisms invoked by Shapiro is discussed by Chiassoni [ 4 : 154].
For a well-argued critical view on conducting Canberra-style analysis in positivistic context see Spaak [ 54 ].
That this will yield further limitations with respect to the concept of legal interpretation and the idea of theoretical disagreements.
Another option is that theorists, in fact, refer to different but equally sustainable platitudes. However, the question is whether legal theorists could refer to a totally different body of evidence and still speak about the same thing. We doubt that. Another possibility is that there are in fact manifold concepts of law (pluralism)—these are concepts of law that may not have any common content. This view is usually related to some anti-essentialist theses (such as Tamanaha’s [ 55 ]). In such cases, there is evidential equality—parity between theorists and their concepts—but, is there really any disagreement? We would rather say that parties would speak one past another (as in the Dworkinian scenario of them being “semantically stung” [ 8 : 44]).
We mean here mind-independence in the weak sense. An object is mind independent in the weak sense if its existence does not depend on the beliefs of any particular person but depends on shared collective beliefs.
Artifactual theory of law draws on Searle’s account of institutions [ 50 ].
We think here of the implicit awareness of the function of the kind as having a certain status—perhaps knowledge of the “success conditions”, i.e., the conditions pertaining to a particular type of thing that may count as an artifact; people should be generally aware of those conditions—somebody who intends to create a K but produces the wrong kind of thing to be K ends up with something that is not K.
Raz famously argues against conceptual dependence between the concept of law and the ideal of the rule of law: “Clearly, the extent to which generality, clarity, prospectivity, etc. are essential to the law is minimal and is consistent with gross violations of the rule of law. But are not considerations of the kind mentioned sufficient to establish that there is necessarily at least some moral value in every legal system? I think not. The rule of law is essentially a negative value (…) conformity to it does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself” [ 41 : 224]. However, it seems that Raz has to agree that it is impossible to imagine a system of law where none of the intuitive requirements of the rule of law were implemented, at least to a minimal extent (for plausible arguments on that behalf see Oberdiek and Patterson [ 34 ], Marmor [ 32 ] and Rijpkema [ 46 ]).
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This paper is the result of a collaboration between the participants of grants awarded by the National Science Centre of Poland (no. 2016/21/D/HS5/03839; no. 2018/30/M/HS5/00254) and the Polish National Agency for Academic Exchange (no. PPN/BEK/2018/1/00030). The authors want to thank two anonymous referees appointed by the Journal for helpful comments and criticism of the original draft of the paper.
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Jagiellonian Centre for Law, Language and Philosophy, Jagiellonian University in Kraków, Kraków, Poland
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Dyrda, A., Gizbert-Studnicki, T. The Limits of Theoretical Disagreements in Jurisprudence. Int J Semiot Law 35 , 117–142 (2022). https://doi.org/10.1007/s11196-020-09795-6
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24 Sociological Jurisprudence and The Spirit of The Common Law
Noga Morag-Levine is Professor of Law and the George Roumell Faculty Scholar at Michigan State University.
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This chapter explores the work and influence of Roscoe Pound who offered sociological jurisprudence in response to transatlantic-inspired threats to the future of the common law. At issue was the rise of social science as an alternative, civil-law-affiliated, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. Within this context, Pound selectively drew on European social legal theory with the goal of saving the common law from itself. The project consisted of two primary proposals for reform, one focused on the universities, the other on the courts. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence forged a socio-legal paradigm that together with lowering the barriers separating law from society also ensured that law would continue to exist as a distinct field of inquiry in the universities and beyond. Where the courts were concerned, sociological jurisprudence answered pressures for radical curtailment of judicial review with a narrow, formalist, construction of the deficiency at the core of the Lochner Court’s reasoning. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy. Largely hidden going forward has been the extent to which the constitutional battle lines of the early twentieth century were drawn between rival, common law- and civil-law-based paradigms of administrative governance.
In the midst of the constitutional tumults of the Lochner era, Roscoe Pound published two essays in the legal periodical Green Bag offering his interpretation of the legal crisis of the time and outlining a course of response. The first was titled ‘The Spirit of the Common Law’, the second ‘The Need of a Sociological Jurisprudence’, and together they summed up the key precepts of the project that would launch Pound’s career during the decade preceding the First World War and forge the lens through which early twentieth-century American legal history would come to be viewed going forward. 1
‘The Spirit of the Common Law’ began and ended with an ode to the centuries-long resilience of common law institutions against competition from rival systems, key to which was the common law’s ability to adapt in response to the changing demands of the time. The current age required such an adaptation, Pound argued, in this instance through diminished emphasis on the rights of individuals relative to those of society at large. Notwithstanding this call for reform, the article concluded with the prediction that ‘this same obstinate individualism of the common law, which makes it fit so ill in many a modern niche, may yet prove a necessary bulwark against an exaggerated and enfeebling collectivism’. 2 Whereas legal history was the starting and ending point in the ‘Spirit of the Common Law’, in ‘The Need of a Sociological Jurisprudence’ Pound called for a new model of legal research that—putting Blackstone’s commentaries as well as historical legal science behind—aimed at ‘scientific apprehension of the relations of law to society and of the needs and interests and opinions of society of to-day’. 3
Like these two essays, most of Pound’s writing during this period exhibits tensions and contradictions, so that it is possible, at different times, to read his project as aimed at divergent objectives: one directed at the preservation of common law institutions and principles in the face of growing public disrespect, and the other geared towards the promotion of legal reforms in the service of progressive principles of social justice. It was as the latter, for the most part, that sociological jurisprudence came to be understood, beginning with Pound’s progressive contemporaries. Within this story, sociological jurisprudence is credited with at least three fundamental contributions to legal scholarship and American judicial politics. The first, and most important, is the displacement of legal formalism and its attendant laissez-faire constitutionalism. The second, in part a product of the Brandeis Brief, is the belief in the transformative potential of properly motivated and informed courts and hence litigation as tool of social change. And the third is the understanding, transmitted from Pound through the Legal Realists to Law and Society scholars, of the gap between the ‘law in the books’ and the ‘law in action’ as the definitive research agenda fusing law and social science. 4
Notwithstanding these accolades, the meaning and significance of sociological jurisprudence’s actual contribution have long been subject to debate, beginning with Pound himself who by 1921 termed the approach the ‘fashion of the time’ and added that it was possible to ‘overrate’ its value. 5 Karl Llewellyn reached much the same conclusion, though for different reasons, when in 1930 he said of sociological jurisprudence that it ‘remains bare of most that is significant in sociology’, leaving one ‘embarrassed by the constant indeterminacy of the level of [its] discourse’. 6 Multiple later writers variously expressed the view that sociological jurisprudence achieved its status, despite, or perhaps because of its meagre content. 7 Perhaps most importantly, a growing body of scholarship has questioned the accuracy of the formalist narrative that sociological jurisprudence helped superimpose on the Lochner era. 8
Making better sense of sociological jurisprudence requires, at the start, greater emphasis on the source and meaning of Pound’s anxiety over the future of the common law in America: the rising influence of continental legal and administrative ideas during an era of growing transatlantic exchange. 9 Primary in this connection was the threat that the legal profession, legal education, and common law institutions as such confronted from German-educated social reformers and social scientists bent on replicating continental legislative and administrative models in the United States. Longstanding tensions within the American polity between common law and civil law-based conceptions of regulatory authority subsequently came to a head in pitted controversies over codification, the creation of boards and commissions, and judicial review of social legislation. The fundamental question on the table was the future of judicial supremacy over both administration and legislation within the American constitutional order. Within this context, Roscoe Pound selectively drew on European social legal theory with the goal of saving the common law from itself.
Pound himself was explicit on the inspiration that his sociological jurisprudence derived from contemporary continental theoretical developments, most importantly Rudolf von Jhering’s biting critique of the German historical school’s ‘Jurisprudence of Conceptions’. 10 Likewise, subsequent writings on sociological jurisprudence have often highlighted the various ways in which Pound kept step with Jhering.
This chapter, by contrast, finds the difference between core aspects of Jhering’s and Pound’s intellectual projects more instructive on the meaning of sociological jurisprudence: Jhering thought of law—meaning private Roman law—as the product of force and the end result of a struggle between self-serving interests. Law, in other words, was devoid of a priori value or entitlement to respect from the state. Pound, by contrast, held profound admiration for the common law tradition and saw it as based in deep-seated historical custom, rather than force. Pound, who changed his mind on so much else, never wavered on this point. The history of Roman Law, for Jhering, served to unmask the materialist interests behind ostensibly neutral legal rights, and hence destabilize them, whereas it was with the opposite goal, that of preserving and strengthening the common law, that Pound examined its history.
What sociological jurisprudence offered in addition—though Pound was less explicit on this—was an answer to the challenge that growing competition from social sciences presented to the legal profession and the law schools. The turn to sociological jurisprudence meant in practice an injection of social-scientific content into legal pedagogy and legal research, a move whose benefits included both the preparation of law graduates for the new demands of legislative and administrative work and the bringing of better resources and reputation to American law schools, many of which still lagged behind other departments in the larger university environment. Created in the process was a socio-legal paradigm that both rescued law from the danger of insular irrelevance and ensured its continued existence as an academic discipline apart from the social sciences. Transported into legal historical research, this paradigm has had the dual effect of both lowering the barriers separating law from society and countering an alternative unified model where law and society might have existed as an integrated, barrier-free field. 11
II. American Law and Politics in the Shadow of Germany
Beginning with a trickle in the mid-1870s and reaching a flood by the 1890s, American students headed to Germany for post-graduate education, often in economics. The experience, during a time of growing German revolt against laissez faire and a newly unified German state, shaped the world-view of these young intellectuals who, upon their return to America, left the marks of their German encounter across a broad spectrum of social-political endeavours. 12 This was a development with potentially portentous implications for the future of legal education, legal profession, and common law institutions—most importantly judicial supremacy.
A. Legal Science and Social Science
By contrast with the situation in continental Europe, where law served as a pillar of university training going back to medieval Bologna, legal education was a new and uncertain entrant into American universities during the nineteenth century. Whether under the auspices of the English Inns of Court, or apprenticeship with members of the bar, the education of common lawyers was long the purview of the legal profession and its more practically oriented mindset. This tradition presented a dual challenge before the effort, starting in Harvard at 1816, to introduce common law teaching and scholarship into American universities. One was the need to persuade aspiring lawyers, and the legal bar more generally, of the professional benefits of university legal education. The other, somewhat in tension with the former, followed from the pressure to establish the law as a theoretical and scientific discipline equal to those around which American universities were building their standing during the second half of the nineteenth century.
Within this context, and consistent with the larger pattern of German academic influence, American law schools looked to the jurisprudential theories broadly known in Germany during the nineteenth century as legal science ( Rechtswissenschaft ). As Christopher Columbus Langdell, who as dean of Harvard Law School led this movement, would later explain, if law was to become a respectable academic discipline, it was essential to establish that ‘law is a science’, since ‘If law be not a science, a university will consult its own dignity in declining to teach it.’ 13 A legal-scientific approach to law provided the means for elevating the status of American law schools to a position comparable to that ‘occupied by the law faculties in the universities of continental Europe’. 14
The theories falling under the broad umbrella of German legal science were varied and complex but revolved around the understanding of law as a formal, systemic, and autonomous enterprise. Known as pandectism (after the German term for Justinian’s Corpus Juris ), this system was built from private law concepts and principles drawn from historical Roman law sources. With these principles identified, legal history completed its purpose, and the subsequent development of the law depended on a rational process of deductive extrapolation. The organization of law, as Georg Friedrich Puchta, the most influential scholar associated with this approach during the second half of the nineteenth century described it, could be likened to a pyramid in which higher-order abstract principles dictated more concrete sub-principles and applications. Seen through this lens, law was a closed, self-contained system that functioned in isolation of the political and social world. The legitimacy of a legal rule depended instead upon its ‘systematic correctness and logical truth’. 15
In the hands of Langdell and other classical legal scholars, legal science meant a common law-based method in which court cases, rather than the writings of Roman law scholars, served as the texts out of which abstract principles of law were to be extracted. The pedagogical practice that followed from this, known as the ‘case method’, was directed at the discovery of the principles hidden within judicial opinions via a ‘Socratic’ dialogue between students and their professors. In the process, legal science consequently transformed from a deductive method, based in Roman law texts, to an inductive process geared at the extraction of legal principles from appellate judicial decisions. 16
By the 1870s, when American legal education first embarked on this project, deductive legal science was subject to growing criticism in Germany, with Rudolf Jhering leading the charge. A pandectist during his early career, Jhering later experienced a profound change of heart. In a complete turnaround, upending the legal-theoretical premises of his time, Jhering provocatively wrote in 1866:
The desire for logic that turns jurisprudence into legal mathematics is an error and arises from misunderstanding of law. Life does not exist for the sake of concepts but concepts for the sake of life. It is not logic that is entitled to exist but what is claimed by life, by social relations, by the sense of justice—and logical necessity, or logical impossibility, is immaterial. 17
With this statement Jhering launched a new legal movement later known as the ‘Jurisprudence of Interests’ ( Intressenjurisprudenz ), defined in opposition to the ‘Jurisprudence of Conceptions’ ( Begriffsjurisprudenz ), a term that came to serve for Jhering as a derogatory reference to the abstract aspirations of German legal science.
Jhering’s ideas first entered American legal discourse through the writings of Oliver Wendell Holmes. Holmes’s famous aphorism, ‘The life of the law has not been logic: it has been experience’, and his warning against treating the legal process ‘as if it contained only the axioms and corollaries of a book of mathematics’, read like a near-paraphrase of Jhering’s words above. 18 Whereas Jhering directed his critique at the conceptual methods of German legal science, Holmes’s target, it has long been understood, was Christopher Columbus Langdell, the man who as the first Dean of Harvard Law School set out to organize American legal education along legal-scientific lines. 19
While the treatment of law as a self-contained scientific enterprise—that was therefore insulated from other academic disciplines—was a defining element of Langdellian legal pedagogy, by the 1880s the trend in Germany and elsewhere in Europe was towards increased integration between the teaching of law and the social sciences, economics most importantly. 20 Following this lead, in a speech he delivered before law students in Boston University in 1897, later famously published as ‘The Path of the Law’, Holmes bemoaned ‘The present divorce between the schools of political economy and law’, and encouraged ‘every lawyer to seek an understanding of economics’ so as to better understand the ‘ends sought to be attained and the reasons for desiring them’. He likewise blamed the emphasis on ‘analogy, discrimination, and deduction’ within legal education for blinding lawyers to the fact that ‘they were taking sides upon debatable and often burning questions’. 21
B. German Administration as a Threat to Legal Hegemony and the Common Law
The legal profession dominated most aspects of American public life during the nineteenth century, as Tocqueville famously observed, but German academic influences threatened the hegemony of American lawyers in this respect. In Germany the primary academic degree leading to careers in all branches of the state bureaucracy and politics was Staatswissenschaft (meaning state or political science). Generally understood as training in administration and rooted in cameralist sciences, Staatswissenschaft was inherently interdisciplinary (in today’s terminology) in its approach, linking economics, statistics, and law. The emphasis, within this approach, was on the role of legal and political institutions in the satisfaction of human needs. 22 During the height of the German-American university connection, Staatswissenschaft closely aligned with emergent critiques of laissez faire economics, under the leadership of what came to be known as the German Historical School. Motivated by the growing urgency of social inequalities, labour disputes, urban dislocation, and related consequences of rapid industrialization, the German historical school promoted social reform based in empirical understanding of the origins and scope of the crisis.
In the United States, the impact of the Staatswissenschaft tradition was evident, among other ways, in the creation of new political science departments geared at the education of future civil servants. The emphasis within these programs was on comparative study of institutions, administrative primarily, with the ultimate goal of adapting European models to the United States. As Frank Goodnow, the first president of the American Political Science Association, wrote in 1893 in the preface to a book on Comparative Administrative Law , the knowledge to address ‘Our modern complex social conditions’ could ‘be obtained only by study, and by comparison of our own with foreign administrative methods.’ 23 Explaining the rationale behind the teaching of administration as a specialized subject under the umbrella of political science, Woodrow Wilson identified the need to adapt scientific theories of administration ‘developed by German and French professors’ so that they can help in solving ‘our own problems of administration in town, city, county, State, and nation’. 24 That the proper models to be followed were continental, rather than English, was an often explicit message.
Graduate training in political science and administration emerged in this context as an alternative to law for those seeking a career in public service, whether as legislators or administrators. In lieu of traditional common law training, new forms of expertise came to be seen as the requisite for climbing up the government career ladder, whether in the administrative or the legislative branch. Well beyond the threat it posed to the professional interests of lawyers and legal educators, the growing influence of the new social scientific and legal theories arriving from Europe cast a serious shadow over the future of core common law principles of judicial supremacy.
In Germany and elsewhere on the continent, the existence of legislative prerogative and administrative discretion were long-recognized elements of police, or the regulatory authority of the state. Within this framework, administrative and policy sciences informed the exercise of regulatory discretion with new forms of expertise, together with the encouragement of greater state intervention in economic relations relative to an earlier era of laissez faire. In the continental context there existed as a consequence inherent compatibility between the new social scientific turn and the core premises of public law. Within the American common law world, by contrast, the emergence of new social-scientific claims for legislative and administrative expertise presented a far-deeper challenge.
The community of social scientists who sought to build new administrative institutions under a German-inspired vision of the social state, or ‘liberal positivism’ in Michael Lacey’s terms, imported into American administrative discourse a view of sociology and related social sciences as an alternative legal paradigm. 25 What social science offered, over traditional legal learning, were tools for establishing ‘a new system of governance’ founded on ‘the existence of reliable ways of publicly monitoring the actual effects of incentives in achieving social purposes’. 26 For this reason, as the sociologist Lester Ward put it in 1893, ‘Before progressive legislation can become a success, every legislature must become, as it were, a polytechnic school, a laboratory of philosophical research into the laws of society and of human nature.’ 27
The consequence was unprecedented escalation of longstanding tensions between progressive proponents of the German administrative paradigm and defenders of court-centred, common law-based governance. Though these tensions had been part of American life from the start, the emergence of Germany, rather than England, as a viable administrative model presented the common law with a qualitatively different threat. The argument from the common law side variously insisted on judicial supremacy as a core element of the American constitutional order. Where administrative law was concerned, the claim, most closely associated with the writings of the English V. A. Dicey, posited an inherent discordancy between continental administrative law and common law principles of the rule of law. On the constitutional side, the view that made its way from the writings of Thomas Cooley to Justice Fields’ dissent in the Slaughterhouse Cases , and Christopher Tiedeman’s influential treatise on the police power, read the Constitution to require that judges be given a veto over the circumstances justifying legislative interventions through the police power. The countervailing argument, put forth by various continental-inspired progressives, viewed administrative law as compatible with the constitution and expected judges to uphold the legislative facts underpinning social legislation under a presumption of constitutionality.
The Supreme Court first ruled on the all-important question of the constitutionality of work-hour limits in 1898 when it upheld hour restrictions for miners and smelters in Holden v. Hardy , a case that progressives celebrated as an ultimate victory for the presumptive constitutionality of social legislation. By 1905, Lochner v. New York would turn things around. In the wake of the case, built-up anger against the courts fuelled a growing list of initiatives aimed at controlling the exercise of judicial powers including proposals aimed at the recall of judges, and constitutional amendments that would have curtailed judicial review.
III. Roscoe Pound and Sociological Jurisprudence
Pound first attempted a systematic analysis of the meaning of and reasons behind the surrounding legal crisis in a speech he delivered in 1906 before the American Bar Association under the title ‘The Causes of Popular Dissatisfaction with the Administration of Justice’. A more accurate title, more faithful to the fear evident at the heart of the speech, might have substituted ‘Judicial Review’, or ‘Supremacy of Law’, for the more antiseptic ‘Administration of Justice’. ‘Dissatisfaction with the administration of justice is as old as law’, Pound conceded in the opening sentence of his speech. What distinguished the crisis at hand was its direct and powerful challenge to ‘the common law doctrine of supremacy of law’ and the traditional subordination of administration to ‘common law liabilities and judicial review’. ‘Courts are distrusted, and executive boards and commissions with summary and plenary powers’ have largely been freed ‘from judicial review’. 28 The core problem, in other words, was the growing presence of continental-styled institutions of administrative law in the United States. From this problem definition, Pound then looked to German social theories of law as means of regaining popular trust in the courts. At the same time, Pound offered sociological jurisprudence as an answer to the legal-professional and legal-academic dislocations the German university connection has helped bring about.
A. Sociological Jurisprudence and the Law Schools
It was from his post as Dean of the University of Nebraska Law College, an appointment he held between 1903 and 1907, that Pound launched the sociological jurisprudence project. Made part of the University in 1891, the Nebraska Law College was a relative newcomer and a stepchild of sorts on a campus whose mission and funding prioritized agriculture, the natural sciences, and the ‘useful’ arts. 29 Throughout his time as Dean in Nebraska, Pound was concerned with the financial resources of the Law College and its seemingly inferior status within the land grant institution.
Pound devoted much of his 1903 inaugural speech as dean to the need for law schools to update their curriculum, moving beyond the traditional ‘dogmatic instruction’ typical of the ‘large and older schools’, meaning Harvard. The reforms he envisioned at that point consisted of the addition of ‘collateral studies’, specifically history of law, jurisprudence, philosophy, and roman Law. In justification he offered, in part, the rationale that lawyers had to acquire a broader store of knowledge if they were to protect their traditional role as legislators. 30 The implicit reference was to the threat the social sciences posed in this respect, but notably Pound’s list of suggested courses excluded any drawn from new policy sciences. Likewise absent from the speech was any attempt to link legal curricular reform with the surrounding political and legal crisis.
The first time Pound articulated such a connection was in 1905 in an article he published in the Columbia Law Review under the title ‘Do We Need a Philosophy of Law?’ The problem, as Pound framed it, was rapidly declining support for the common law, meaning judicial supremacy, in the face of overly individualist doctrines and repeated judicial invalidation of labour laws. The fault was not with the judges, Pound was careful to point out, since the decisions ‘[a]s the law stands . . . were rightly determined’. 31 The source of the problem was the excessive individualism of the law itself and the need for it to ‘hold a more even balance between individualism and socialism’. 32 The correct answer to the problem was not to be found, however, in the recall of judges or packing the courts. ‘To my mind’, Pound offered instead, ‘the remedy is in our law schools. It is in training the rising generation of lawyers in a social, political and legal philosophy abreast of our time.’ 33 He ended the article with a rhetorical question: ‘[M]ust not a philosophy of law founded on a sound knowledge of the elements of the social and political science of to-day form part—and a necessary part—of the equipment of the trained lawyer?’ 34
Once again, in the ‘Need of a Sociological Jurisprudence’, Pound attributed the law’s weakening ‘hold upon the American people’ to ‘the manner in which law is taught and expounded’. 35 Here, for the first time, Pound directed his pedagogical criticism at ‘legal science’ and the ‘sterility’ it imparted to legal thought, though the exact contribution of legal science to the surrounding legal crisis was left unspecified. Pound’s prescription was for law instructors to engage, in a critical fashion, with the legal and political controversies of the time. Contrary to the view that law existed as a politically neutral science, and should be taught as such, Pound called upon law professors to bring into the classroom, in tandem with their teaching of doctrine, perspectives drawn from contemporary political, economics, and sociological theories, even if that meant taking issue with governing legal authorities on the ‘nature of justice and rights’. 36
However, in contrast to Holmes’s argument in the ‘Path of the Law’ and the emergent continental practice on which it drew, Pound opposed the addition of separate social science courses, such as economics, to the curriculum. To him the proper method for introducing law students to social ideas and critiques was through ‘concrete legal problems’ and ‘actual decisions’, rather than ‘abstract courses’. 37 This approach ensured that lawyers, rather than social scientists, would stay in charge and that legal doctrine would remain the central pillar of legal education.
Pound made no secret of the synergy between his sociological jurisprudence and the interests of the legal academy. At least twice in ‘The Need of a Sociological Jurisprudence’ he alluded to this point. The first was when he warned that absent pedagogical adaptation, lawyers risked ‘giving up their legitimate hegemony in legislation and politics to engineers and naturalists and economists’. 38 The second such instance pertained to legal research, rather than teaching, and the ability of social science to funnel more money into the law schools and hence their capacity to compete for resources within the larger university. Whereas ‘Research of almost every other sort has been endowed’ and ‘Laboratories are set up to investigate every other human interest’, the law schools have been left behind, there being ‘no endowments for juridical research’. 39 To change this it was necessary for the law schools to produce more socially relevant, and hence fundable, research, such as the production of statistics on the operation of judicial administration. ‘Law teachers ought to be making clear to the public what law is and why law is and what law does and why it does it’, Pound wrote. 40
In 1910, his project by then well under way, Pound famously crystallized the research agenda of sociological jurisprudence as bridging the gap between the ‘law in the books’ and ‘law in action’. Here again, similar to his preferred approach to legal pedagogy, Pound made legal expertise essential to carrying out the requisite research. Pound’s message to the lawyers was to make use of the lessons of economics, sociology, and philosophy, and ‘cease to assume that jurisprudence is self-sufficient’. At the same time, and of at least equal importance, however, Pound’s message to the rival ambitions of the social scientists, as Christopher Tomlins put it, was that the task of aligning the law in the books with the law in action was ‘work that only lawyers could do’. 41
B. Jhering, Pound, and Legal History
In choosing ‘The Spirit of the Common Law’ as the title of his 1905 article, Pound gestured to Jhering, whose early scholarly reputation was based on an ambitious, multi-volume project: ‘The Spirit of Roman Law through the Stages of its Development’ ( Der Geist des römischen Rechts auf den Stufen seiner Entwicklung ). In keeping with the precepts of the research tradition to which he belonged at the time, the project was geared towards the discovery of the constitutive universal principles of Roman law, a plan that Jhering ultimately left unfinished after he lost faith in pandectism. 42 Already in Der Geist , however, and in departure from leading pandectists such as Puchta, Jhering had argued for the separation of the methodology of legal science from the substance of classical Roman law. Jurists, he wrote, had to face the fact that ‘the times of Ulpian and Paulus are gone forever and will not return despite all efforts. To wish to retrieve them one would have to forget that every age should be an original, and not the copy of another.’ 43 The spirit of the law as such transcended substantive doctrines, rooted in the differing circumstances of each age and different stages of the law’s development.
Echoing Jhering, Pound organized his own article around the possibility of decoupling historical substantive principles, most importantly a priori commitment to the rights of individuals, from the spirit of the common law as such by asking: ‘Is this common law respect for the individual inherent and fundamental? Does it represent a sixteenth and seventeenth century color, then acquired, or is it deeper-seated and intrinsic?’ 44 It was a question to which the article ended up giving two, ultimately contradictory, answers. One encouraged lawyers to ‘hold a more even balance between individualism and collectivism’ and warned against mistaking ‘seventeenth century dogmas, in which temporary phases of its individualist bent were formulated, for fundamental tenets of the common law’. 45 The other, a page later and 180 degrees apart, disputed the current economical and sociological view of individualism as a ‘relic of the past’ and offered that the ‘obstinate conservatism’ of the lawyers, ‘may yet save for us a valuable—nay an indispensable—element in our institutions’. 46
Pound’s ambivalence regarding the implications of Jhering’s early work for common law history was all the more acute when it came to the positivist and instrumentalist legal theories of Jhering’s later life, as developed in his two most influential books: The Struggle for Law ( Der Kampf um’s Recht ) (1872) and The Purpose of Law , better known in English as Law as a Means to an End ( Der Zweck im Recht ) (vol. I, 1877; vol. II 1883). The origins of law, as Jhering came to see it, were rooted in the ability of the powerful to monopolize force on behalf of selfish interests, making the survival of law forever contingent on the state’s willingness to back it up with force. It was, as such, the prerogative of the state, ‘the only source of law’, to determine which interests are deserving of protection and, where necessary, sacrifice law so as to protect the collective life. The key insight to be derived from the understanding of law as purpose grounded in force was that rather than an end in itself, law existed as a ‘means to an end, the final end being the existence of society’. 47
In his ‘Law in Books and Law in Action’, Pound, sounding very much like the later Jhering, said of the ‘history of juristic thought’ that ‘it tells us nothing unless we know the social forces that lay behind it’. 48 Elsewhere, however, Pound was open regarding his discomfort with key aspects of Jhering’s approach. In ‘The Scope and Purpose of Sociological Jurisprudence’, published in 1912, Pound openly distanced himself from Jhering’s view of legal history and the purpose of law. ‘[I]t must be conceded’, Pound wrote there, ‘that Jhering ignores an important element in the development of law.’ Contrary to Jhering’s reading of law as the product of force, ‘Legal history shows clearly enough that ideals of justice and of morals have been controlling factors in all periods of growth.’ 49 The abdication of law in favour of administration was the danger lurking when we equate law with welfare of society.
If Jhering’s work nonetheless held ‘enduring value for sociological jurisprudence’, Pound argued, it was due to its thorough debunking of the formalist methodology of conceptual jurisprudence and the lessons to be derived regarding the similar methodological deficiencies responsible for the laissez-faire orientation of the courts. ‘The jurists of whom Jhering made fun, translated to a heaven of juristic conceptions . . . have their counterpart in American judges who insist upon a legal theory of equality of rights and liberty of contract in the face of notorious social and economic facts.’ The lesson to be taken from the ‘conception of law as a means towards social ends’, in marked dilution of Jhering’s subordination of law to life, was a requirement that jurists ‘keep in touch with life’. 50 For Pound, at the end of the day, law, meaning common law, was not a means, but an end.
C. Sociological Jurisprudence and the Invention of Formalism
In posing sociological jurisprudence as antithetical to formalism Pound built on a foundation that Holmes, in various earlier writings, had left in place. Holmes’s most important, though arguably unintended, contribution in this respect was the following words in his legendary, if ambiguous, Lochner dissent: ‘General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise.’ 51 Standing alone, these words appear to suggest that the Court’s majority was guilty of the same fault Holmes’s earlier critique attributed to Langdell—blind belief in logic to the exclusion of judicial intuitions and other elements of social experience as a determinant of legal reasoning. Holmes’s warning on the limits of deduction from ‘general propositions’ was, however, seemingly not intended as a critique of Justice Peckham’s opinion in the case, as Thomas Grey has noted. Instead, as is evident when read in the context of the entire paragraph, the statement served to qualify Holmes’s own, earlier declaration that ‘a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire’. 52 The qualification served to acknowledge that notwithstanding the constitution’s neutrality on the choice among economic theories, there could be other grounds, such as personal liberty, for viewing freedom of contract as a protected constitutional right. But this qualification aside, Holmes, as he emphasized later on, believed that his own earlier proposition was indeed capable of shedding significant light on the source of the majority’s error. In other words, contrary to the meaning and significance it acquired over time, Holmes’s language in Lochner on the limits of deductive reasoning amounted to a tangential cautionary note directed at readers of his own argument. 53
Holmes’s actual complaint against the majority was instead over its failure to defer to the judgment of the democratically elected New York legislature under the circumstances at hand. In his view, a correct reading of the 14th Amendment required the Court to uphold legislation except where ‘a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law’. Applying this test to the bakers law, Holmes concluded that the fact that ‘A reasonable man might think it a proper measure on the score of health’ sufficed to establish the constitutionality of the law. 54 Where the majority fell short, in other words, was in its insistence that it was independently entitled to evaluate the pertinent facts. Nevertheless, it is as a statement expressing the opposite sentiment, meaning criticism of the Court’s insulation from facts, that Holmes’s dissent and through it the entire decision would come to be read through the lens of Pound’s sociological jurisprudence.
The process began with the inclusion of the following words in Pound’s 1908 article, ‘Mechanical Jurisprudence’: ‘The manner in which the Fourteenth Amendment is applied affords a striking instance of the workings to-day of a jurisprudence of conceptions . . . The conception of freedom of contract is made the basis of a logical deduction.’ 55 He followed up with a flurry of writings and speeches delivered in the decade following Lochner in which he tied the legal and constitutional crisis at hand to the unwillingness or inability of judges to give up on ‘predetermined conceptions’ and engage with the fact. 56
Pound’s reading of Holmes’s dissent may well have been mistaken, as discussed above. Furthermore, contemporary progressive critiques of Lochner had little to do with conceptualism or deductive logic. As Ernst Freund put it in 1910 in reference to recent labour cases, including Lochner , ‘No other construction can be placed upon these decisions than that the courts assume the power to look into the question of fact.’ 57 Notwithstanding, the formalist problem definition soon took hold, partially thanks to the success of the National Consumers League (NCL) litigation strategy in Muller v. Oregon , famously known thereafter as the Brandeis Brief.
The brief, which the NCL submitted in that case, departed from the prevailing practice by stressing socio-medical evidence on the health risks associated with long work hours for women laundry workers, evidence aimed at establishing the constitutionality of an Oregon statute that limited women’s work hours in that industry. When the Supreme Court upheld the Oregon statute less than three years after Lochner , the credit went to the Brief. The success of the remedy that the Brandeis Brief administered retrospectively confirmed the view that the initial deficiency in the Lochner Court’s reasoning was its formalist insulation from real-world facts. But contrary to the narrative that soon took hold, it was not formalist conservative judges but progressive defenders of social legislation who long sought to exclude proof regarding the alleged health and other benefits of legislation from judicial review. The progressive perspective on social legislation was that it was entitled to a presumption of constitutionality, independent of any scientific proof of underlying injury to health or any other predetermined rationale. The exclusion of extra-legal evidence fit with that agenda, whereas it was inconsistent with the conservative view regarding the subordination of social and economic legislation to rigorous judicial oversight. The conventional historiography on the Brandeis Brief has seemingly gotten this story turned on its head. 58
Though Pound’s sociological jurisprudence seemingly had little if anything to do with the Brandeis Brief at the start, its role in the subsequent transformation of the Brief’s meaning was profound. To begin with, there existed a surface similarity between the sociological call for empirical investigations of the actual workings of law, bridging the gap between ‘the law in the books and the law in action’, in Pound’s famous phrase, and the Brandeis Brief’s introduction of medical and social scientific evidence into the courts. 59 Pound himself contributed in this regard when, in 1912, he offered the Brief as evidence of ‘a new tendency to take more account of the social facts involved in the application of legal rules’. 60 For a long time afterward, the Brandeis Brief stood as ‘the first example of sociological jurisprudence in action, the instantiation of Pound’s call for informing legal judgment with the data of the social sciences’. 61 That the Brandeis Brief began as a concession on the part of progressives to conservative insistence on judicial scrutiny largely disappeared from legal history.
The speed and thoroughness with which sociological jurisprudence’s formalist problem definition took hold followed from the degree to which many progressives, particularly the lawyers among them, shared Pound’s discomfort with proposals for radical reforms of the courts. 62 Providing a key example, Louis Brandeis told a gathering of the Chicago Bar Association in 1916: ‘What we need is not to displace the courts, but to make them efficient instruments of justice; not to displace the lawyer, but to fit him for his official or judicial task.’ 63 What formalism offered progressives such as Brandeis was a compromise formula aimed at improving, rather than abandoning, the oversight function of courts. In the United States it would take until close to the end of the century for the formalist thesis to be subject to serious doubt. Well before that, and probably not by chance, foreign critics of the Lochner Court’s attitude towards social legislation saw nothing formalist in the constitutional doctrines of the era, with the ‘instruments of judicial supremacy’, and the ‘humble stature of legislation in common law America’ instead taking the blame. 64
In Germany, the perceived connection between formalism, or legal science, and laissez-faire followed from the former’s contribution to the creation of an ostensibly autonomous sphere of private law, a sphere with which the state’s public law institutions were not to interfere. The sole function of the state, as Puchta saw it, was ‘the preservation of a lawful order of freedom that stood above all party interest’. In denigrating Puchta’s school of thought as conceptualist, or formalist, Jhering and the broader movement with which he was associated sought to unmask the law’s politically neutral pretences. It was not conceptual hair-splitting, but a battle, at times violent, between competing political interests that gave rise to law, and it was as such in reference to the interests of society at large that the utility of economic rights such as freedom of contract ought to be judged. Delivered in Germany against the backdrop of a rising tide of socialism, this critique carried a transformative, even subversive, bite. Transposed via sociological jurisprudence into turn-of-the-twentieth-century American progressive politics, anti-formalism, leaving its continental radical connotations behind, transformed into an instrument of liberal legalism.
Borrowing from contemporary German legal theory, Pound turned in the early twentieth century to the ‘new creed’ of sociological jurisprudence as an antidote to transatlantic-inspired threats to the long-term survival of the common law. 65 Most directly at issue was the rise of social science as an alternative, civil-law-affiliated, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. To all of these, sociological jurisprudence offered essentially the same corrective—a more empirical, fact-sensitive approach to law, whether in legal research and pedagogy or the adjudication of constitutional disputes. Pound outlined the precepts of this project in a long list of articles and planned its culmination with a future book.
Rather quickly, however, Pound appeared to have lost interest in this ambitious agenda. The promised book on sociological jurisprudence never materialized. Instead, borrowing from his 1906 essay, Pound published a book titled The Spirit of the Common Law in 1921. Sociological jurisprudence received only a cursory, and ultimately sceptical, treatment, coupled with a warning against a reductionist economic approach to legal history devoid of recognition of the all-important role of logic and analogy in law. 66
Pound’s change of heart seemingly responded to the worry that in the hands of the emergent Realist movement, a theory he thought of as offering a lifeline to the common law was at risk of co-optation in the service of the administrative state whose ascendance Pound intended his sociological jurisprudence to forestall. Notwithstanding Pound’s desertion, the project lived on with the legal realists, and later the Law and Society movement, each in turn offering their own versions of court-centred models of interdisciplinary legal inquiry.
Late-nineteenth-century German social science and attendant theories of the state posited an integrated field linking legal, political, social, and economic theories. Within this model the social science disciplines, rather than the law, emerged as the proper academic homes for research on constitutional, legislative, administrative, and related public law subjects. Countering this challenge, the various ‘law and . . .’ versions of socio-legal analysis collectively offered a formula that, while opening the law-schools’ doors to empirical social-scientific perspectives, also protected the status of law as a separate and distinct ‘juridical sphere’. Consistent with this, the treatment of legal development as a phenomenon related to but still different in kind from political and social history became the mark of American legal historical research going forward. 67
Equally important was the impact of sociological jurisprudence on legal history’s construction of the Lochner era: the implantation of the erroneous formalist conception of the Court, a conception that long survived sociological jurisprudence itself, at least in its original formulation. Largely hidden as a consequence was the extent to which the constitutional battle lines of the early twentieth century were drawn between rival, common law- and civil-law-based paradigms of administrative governance, a point that Pound understood well. The ease with which formalist constructions of the Lochner Court took hold—even as the Lochner justices themselves insisted on reviewing the underlying legislative facts—is difficult to explain, other than through the widely shared common-law sensibilities of progressive-era lawyers, well beyond Pound. In this, sociological jurisprudence seemingly offers legal historians one more lesson on the ways in which historical narratives that are consonant with the values of legal elites are liable to gain purchase, facts, or no facts.
Neil Duxbury , ‘ Jhering’s Philosophy of Authority ’ ( 2007 ) 27 Oxford Journal of Legal Studies 38
Thomas C. Grey , Formalism and Pragmatism in American Law (Brill, 2014 )
N. E. H. Hull , Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (University of Chicago Press, 1998 )
Laura Kalman , Legal Realism at Yale, 1927–1960 (University of North Carolina Press, 1986 )
William P. LaPiana , Logic and Experience: The Origin of Modern American Legal Education (Oxford University Press, 1994 )
Roscoe Pound , The Spirit of the Common Law ( Marshall Jones , 1921 )
David M. Rabban , Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge University Press, 2013 )
William G. Ross , A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton University Press, 1994 )
Brian Z. Tamanaha , Beyond the Formalist-Realist Divide (Princeton University Press, 2009 )
Christopher Tomlins , ‘ Framing the Field of Law’s Disciplinary Encounters: A Historical Narrative ’ ( 2000 ) 34 Law and Society Review 911
David Wigdor , Roscoe Pound, Philosopher of Law (Greenwood, 1974 )
John Fabian Witt , Patriots and Cosmopolitans (Harvard University Press, 2007 )
Roscoe Pound , ‘The Spirit of the Common Law’ (1906) 18 The Green Bag 17 ff ; Roscoe Pound , ‘The Need of a Sociological Jurisprudence’ (1907) 19 The Green Bag 607 ff .
Pound (n. 1 ) ‘The Spirit of the Common Law’, 25 ff.
Pound (n. 1 ) ‘The Need of a Sociological Jurisprudence’, 610 ff.
See Edwin W. Patterson , ‘Some Reflections on Sociological Jurisprudence’ (1958) 44 Virginia L.R. 395 ff .; Susan S. Silbey , ‘Law and Society Movement’, in Herbert M. Kritzer (ed.), Legal Systems of the World (2002) 860 ff .
Pound (n. 1 ) ‘The Spirit of the Common Law’, 10 ff; Silbey (n. 4 ) 860 ff.
Karl Llewellyn , ‘A Realistic Jurisprudence—The Next Step’ (1930) 30 Columbia L.R. 435 ff .
William P. LaPiana , Logic and Experience (1994) 156 ff .
E.g., Brian Tamanaha , Beyond the Formalist-Realist Divide (2010) ; David M. Rabban , Law’s History (2013) 472 ff .
Daniel Rodgers , Atlantic Crossings: Social Politics in a Progressive Age (1998) .
Roscoe Pound , ‘Mechanical Jurisprudence’ (1908) 8 Columbia L.R. 610 ff .
Christopher Tomlins , ‘Foreword: “Law as . . .” II, History as Interface for the Interdisciplinary Study of Law’ (2014) 4 University of California Irvine L.R. 1 ff .
Rodgers (n. 9 ) 77 ff.
Christopher C. Langdell , ‘Teaching Law as a Science’ (1887) 21 American L.R. 123 ff .
Franz Wieacker , A History of Private Law in Europe with Particular Reference to Germany (1995) 317 ff .
Josef Redlich , The Common Law and the Case Method in American University Law Schools (1914) 15 ff .
Translated and cited in Peter Stein , The Character and Influence of the Roman Civil Law (1988) 37 ff .
Oliver Wendell Holmes , The Common Law (1881) 1 ff .
‘Book Notices’ (1880) 14 American L.R. 232 ff (reviewing Christopher C. Langdell, A Selection of Cases on the Law of Contracts ).
Max Rümelin , trans. M. Magdalena Schoch , ‘Developments in Legal Theory and Teaching during my Lifetime’, in M. Magdalena Schoch (ed.), The Jurisprudence of Interests (1948) 26 ff .; Charles Gide , ‘The Economic Schools and the Teaching of Political Economy in France’ (1890) 5 Political Science Quarterly 603 ff .
Oliver Wendell Holmes , ‘The Path of the Law’ (1897) 10 Harvard L.R. 465, 468 ff .
Erik Grimmer-Solem , The Rise of Historical Economics and Social Reform in Germany 1864–1894 (2003) 42 ff .
Frank J. Goodnow , Comparative Administrative Law I (1893) iv ff .
Woodrow Wilson , ‘Three Essays on Administration’, in Papers of Woodrow Wilson vol. 5 (1885) 49 , 52 as cited and discussed in Robert Adcock , Liberalism and the Emergence of American Political Science: A Transatlantic Tale (2014) 215 ff .
Michael J. Lacey , ‘The World of the Bureaus: Government and the Positivist Project in the Late Nineteenth Century’, in Michael J. Lacey , M. O. Furner (eds.), The State and Social Investigation in Britain and the United States (1993) 150 ff .
Ibid ., 152 ff.
Lester Frank Ward , Dynamic Sociology (2nd edn., 1897) 37 ff .
Roscoe Pound , ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 14 The American Lawyer 445 ff .
Robert E. Knoll , Prairie University: A History of the University of Nebraska (1995) 1 ff .
Roscoe Pound , The Evolution of Legal Education: An Inaugural Lecture (1903) 14 ff .
Roscoe Pound , ‘Do We Need a New Philosophy of Law?’ (1905) 5 Columbia L.R. 345 ff .
Ibid ., 352 ff.
Ibid ., 353 ff.
Pound, (n. 1 ) ‘The Need of a Sociological Jurisprudence’ .
Ibid ., 611 ff.
Ibid ., 612 ff.
Ibid ., 608 ff.
Christopher Tomlins , ‘How Autonomous Is Law?’ (2007) 3 Annual Review of Law and Social Science 61 ff .
Hasso Hofmann , ‘From Jhering to Radbruch: On the Logic of Traditional Legal Concepts to the Social Theories of Law to the Renewal of Legal Idealism’, in Damiano Canale , Paolo Grossi , Hasso Hofmann (eds.), A History of the Philosophy of Law in the Civil Law World, 1600–1900 (2005) 302 ff .
Mathias Reimann , ‘ Nineteenth Century German Legal Science ’ (1990) 31 Boston College L.R. 862 , citing and translating R. von Jhering , 1 Vom Geist des Römischen Rechts aufden verschiedenen Stufen seiner Entwicklung (9th edn., 1907) 47 ff .
Pound (n. 1 ) ‘The Spirit of the Common Law’ 22 ff.
Ibid ., 24 ff.
Ibid ., 25 ff.
Neil Duxbury , ‘Jhering’s Philosophy of Authority’ (2007) 27 Oxford Journal of Legal Studies 38 ff .
Roscoe Pound , ‘Law in Books and Law in Action’ (1910) 44 American L.R. 34 ff .
Roscoe Pound , ‘The Scope and Purpose of Sociological Jurisprudence II’ (1911) 25 Harvard L.R. 145 ff .
Ibid ., 146 ff.
Lochner v. New York (1905) 198 US 76 (Holmes J, dissenting).
Lochner v. New York (1905) 198 U.S. 75.
Thomas C. Grey , Formalism and Pragmatism in American Law (2014) 139 ff.
Lochner v. New York (1905) 198 U.S. 76.
Pound (n. 10 ) 615 ff.
Roscoe Pound , ‘Liberty of Contract’ (1908) 18 Yale L.J. 462 ff .
Ernst Freund , ‘Constitutional Labor Legislation’ (1910) 4 Illinois L.R. 620 , as quoted and discussed in Brian Z. Tamanaha , Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2010) 36 ff .
See generally Noga Morag-Levine , ‘Facts, Formalism, and the Brandeis Brief: The Origins of a Myth’ (2013) University of Illinois L.R. 59 ff .
Roscoe Pound , ‘Law in the Books and Law in Action’ (1910) 44 American L.R. 22 ff .
Roscoe Pound , ‘The Scope and Purpose of Sociological Jurisprudence’ (1912) 25 Harvard L.R. 513 ff .
William Wiecek , The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998) 195 ff .
William G. Ross , A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (1994) 15 ff .
Louis D. Brandeis , ‘The Living Law’ (1916) 10 Illinois L.R. 468 ff .
Jacco Bomhoff , Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (2013) 54 ff .
Roscoe Pound , ‘The Scope and Purpose of Sociological Jurisprudence’ (1911) 24 Harvard L.R. 594 ff .
Pound (n. 5 ) 10 ff.
Catherine L. Fisk and Robert W. Gordon , Foreword: ‘ “Law as . . .”: Theory and Method in Legal History’ (2011) University of California Irvine L.R. 519 ff .
Daryl Thompson provided excellent editorial assistance in the preparation of this manuscript. I likewise thank for their comments Malcolm Feeley, Nicola Giocoli, Jonathan Levine, Chris Tomlins, and participants in the Tel Aviv University workshop on chapters in this handbook.
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Sociological jurisprudence is one of the most important schools of legal thought in the twentieth century. Its major proponent in the United States was roscoe pound (1870–1964), a prolific writer who was dean of the Harvard Law School from 1916 to 1936. A number of other legal educators and judges also contributed in varying degrees to the theory or practice of sociological jurisprudence. They included five former members of the Supreme Court—oliver wendell holmes, louis d. brandeis, Harlan Fiske Stone , benjamin n. cardozo, and felix frankfurter. Even though the doctrines of these jurists were anything but uniform, they shared a number of important attitudes and ideas.
The movement for a sociological jurisprudence emerged during the Progressive era. Pound interpreted it as the "movement for pragmatism as a philosophy of law," the purpose of which was to facilitate legal reform and social progress. Although legal change should take place under the leadership of lawyers, the agenda of sociological jurisprudence did not focus on changes in legal institutions. Rather, it stressed reform of prevailing conceptions of the study, interpretation, and application of law.
This emphasis reflected a particular diagnosis of the ills of the American legal system at the outset of the twentieth century. These problems included judicial hostility to laws designed to protect workers, which courts often construed narrowly or held unconstitutional. Decisions of the Supreme Court applying the doctrine of substantive due process are a classic example of the tendency. The advocates of sociological jurisprudence assailed this judicial response to social legislation, which they attributed to several factors. One was the isolation of the study of law from the social sciences. This condition allegedly fostered an ignorance of social realities and needs that contributed to unjust decisions. "Unless we know the facts on which legislators may have acted," Justice Brandeis pointed out in burns baking co. v. bryan (1924), "we cannot properly decide whether they were … unreasonable, arbitrary, or capricious. Knowledge is essential to understanding; and understanding should precede judging."
Pound maintained that another factor contributing to judicial decisions that obstructed social progress was mechanical jurisprudence, or the rigid deduction of decisions from established principles without regard to their practical effects. He argued that this kind of syllogistic reasoning not only obscured judges' wide range of choice in selecting premises but also contributed to their intolerance of laws limiting freedom of contract. The very different attitude of Justice Holmes was one reason why advocates of sociological jurisprudence held him in such high esteem.
These criticisms were the basis of the characteristic reform objectives of sociological jurisprudence. A fundamental goal was the development of a better factual understanding of the practical effects of legal precepts and institutions. Cardozo proposed a Ministry of Justice which would study and observe the "law in action." In "The Living Law" Brandeis recommended "broader education … continued by lawyer and judge throughout life: study of economics and sociology and politics which embody the facts and present the problems of today." This idea strongly conditioned the unorthodox brandeis brief in muller v. oregon (1908), an approach that Brandeis and other lawyers such as Felix Frankfurter used in a number of subsequent cases. Only two of the 113 pages of this brief presented the traditional kind of legal argument, while the rest consisted largely of factual evidence of the bad effects on women of excessive hours of work. Brandeis argued that these data showed that the Oregon law, which limited women's working hours to ten per day, was a reasonable limitation of freedom of contract. His argument favorably impressed the Justices, who unanimously upheld the law.
The prescription for abandoning "mechanical jurisprudence" was a more pragmatic approach to judicial decision making. No one expressed this idea better than Cardozo, who insisted that law is a means to the end of " social welfare " or "social justice." He argued that judges should interpret general constitutional limitations to serve this end. The changing meaning of the word "liberty" in the due process clauses of the Fifth and fourteenth amendments is an example. (See incorporation doctrine.) Similar beliefs conditioned Frankfurter's suggestion that constitutional law "in its relation to social legislation, is … but applied politics, using the word in its noble sense."
These ideas reflected a justifiable dissatisfaction with the content of American constitutional law earlier in this century. The adequacy of the sociological jurists' diagnosis of and reforms for these evils is another matter. To begin with, they tended to exaggerate the causal significance of "mechanical jurisprudence" and judicial ignorance of social needs. Neither of these factors ordinarily influence the actual decisions of the Justices or their choice of premises as much as their policy preferences or attitudes. Furthermore, conservative Justices might (and did) use Cardozo's "method of sociology" for their own purposes. "Social welfare" and "social justice" are subject, after all, to a multitude of interpretations. In some cases a majority of the Justices invalidated laws defended by a "Brandeis brief." The extent to which that technique influenced them to uphold other laws is uncertain, but its impact may have been corroborative rather than decisive. The use of social science evidence in brown v. board of education (1954) illustrates this tendency. Finally, social scientists often disagree about the interpretation of the facts or their implications for public policy.
To say this is not to imply that the value of sociological jurisprudence was negligible. Its greatest contribution to constitutional law was that it served as a positive force for upholding social legislation. If its efficacy in this regard was limited, at least it provided support for judges inclined to hold such legislation constitutional. Moreover, knowledge of the actual effects of legal precepts and institutions is essential for informed evaluations of them. The call of sociological jurisprudence for studies of these effects was, thus, a step in the right direction.
Wilfrid E. Rumble (1986)
Brandeis, Louis D. 1916 The Living Law. Address before the Chicago Bar Association, January 3, 1916.
Cahill, Fred V. 1952 Judicial Legislation. New York : Ronald Press.
Rosen, Paul L. 1972 The Supreme Court and Social Science. Urbana: University of Illinois Press.
Rumble, Wilfrid E. 1968 American Legal Realism. Ithaca, N.Y.: Cornell University Press.
White, G. Edward 1978 Patterns of American Legal Thought. Indianapolis: Bobbs-Merrill.
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What is a thesis statement.
Your thesis statement is one of the most important parts of your paper. It expresses your main argument succinctly and explains why your argument is historically significant. Think of your thesis as a promise you make to your reader about what your paper will argue. Then, spend the rest of your paper–each body paragraph–fulfilling that promise.
Your thesis should be between one and three sentences long and is placed at the end of your introduction. Just because the thesis comes towards the beginning of your paper does not mean you can write it first and then forget about it. View your thesis as a work in progress while you write your paper. Once you are satisfied with the overall argument your paper makes, go back to your thesis and see if it captures what you have argued. If it does not, then revise it. Crafting a good thesis is one of the most challenging parts of the writing process, so do not expect to perfect it on the first few tries. Successful writers revise their thesis statements again and again.
A successful thesis statement:
- makes an historical argument
- takes a position that requires defending
- is historically specific
- is focused and precise
- answers the question, “so what?”
How to write a thesis statement:
Suppose you are taking an early American history class and your professor has distributed the following essay prompt:
“Historians have debated the American Revolution’s effect on women. Some argue that the Revolution had a positive effect because it increased women’s authority in the family. Others argue that it had a negative effect because it excluded women from politics. Still others argue that the Revolution changed very little for women, as they remained ensconced in the home. Write a paper in which you pose your own answer to the question of whether the American Revolution had a positive, negative, or limited effect on women.”
Using this prompt, we will look at both weak and strong thesis statements to see how successful thesis statements work.
While this thesis does take a position, it is problematic because it simply restates the prompt. It needs to be more specific about how the Revolution had a limited effect on women and why it mattered that women remained in the home.
Revised Thesis: The Revolution wrought little political change in the lives of women because they did not gain the right to vote or run for office. Instead, women remained firmly in the home, just as they had before the war, making their day-to-day lives look much the same.
This revision is an improvement over the first attempt because it states what standards the writer is using to measure change (the right to vote and run for office) and it shows why women remaining in the home serves as evidence of limited change (because their day-to-day lives looked the same before and after the war). However, it still relies too heavily on the information given in the prompt, simply saying that women remained in the home. It needs to make an argument about some element of the war’s limited effect on women. This thesis requires further revision.
Strong Thesis: While the Revolution presented women unprecedented opportunities to participate in protest movements and manage their family’s farms and businesses, it ultimately did not offer lasting political change, excluding women from the right to vote and serve in office.
Few would argue with the idea that war brings upheaval. Your thesis needs to be debatable: it needs to make a claim against which someone could argue. Your job throughout the paper is to provide evidence in support of your own case. Here is a revised version:
Strong Thesis: The Revolution caused particular upheaval in the lives of women. With men away at war, women took on full responsibility for running households, farms, and businesses. As a result of their increased involvement during the war, many women were reluctant to give up their new-found responsibilities after the fighting ended.
Sexism is a vague word that can mean different things in different times and places. In order to answer the question and make a compelling argument, this thesis needs to explain exactly what attitudes toward women were in early America, and how those attitudes negatively affected women in the Revolutionary period.
Strong Thesis: The Revolution had a negative impact on women because of the belief that women lacked the rational faculties of men. In a nation that was to be guided by reasonable republican citizens, women were imagined to have no place in politics and were thus firmly relegated to the home.
This thesis addresses too large of a topic for an undergraduate paper. The terms “social,” “political,” and “economic” are too broad and vague for the writer to analyze them thoroughly in a limited number of pages. The thesis might focus on one of those concepts, or it might narrow the emphasis to some specific features of social, political, and economic change.
Strong Thesis: The Revolution paved the way for important political changes for women. As “Republican Mothers,” women contributed to the polity by raising future citizens and nurturing virtuous husbands. Consequently, women played a far more important role in the new nation’s politics than they had under British rule.
This thesis is off to a strong start, but it needs to go one step further by telling the reader why changes in these three areas mattered. How did the lives of women improve because of developments in education, law, and economics? What were women able to do with these advantages? Obviously the rest of the paper will answer these questions, but the thesis statement needs to give some indication of why these particular changes mattered.
Strong Thesis: The Revolution had a positive impact on women because it ushered in improvements in female education, legal standing, and economic opportunity. Progress in these three areas gave women the tools they needed to carve out lives beyond the home, laying the foundation for the cohesive feminist movement that would emerge in the mid-nineteenth century.
When revising your thesis, check it against the following guidelines:
- Does my thesis make an historical argument?
- Does my thesis take a position that requires defending?
- Is my thesis historically specific?
- Is my thesis focused and precise?
- Does my thesis answer the question, “so what?”
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Jurisprudencia Sociológica en el Derecho Procesal Americano
Nota: se analiza también jurisprudencia sociológica en el derecho de los Estados Unidos de América, pero en inglés, en esta entrada (Sociological Jurisprudence) .
Una visión de que las leyes y los procesos legales solo pueden entenderse como parte de la sociedad en general. La jurisprudencia sociológica tuvo su origen en el trabajo de quienes argumentaban que el derecho forma parte de la tradición histórica de una sociedad. Esta perspectiva sugería la necesidad de comparar sistemas legales, un objetivo al que las ciencias sociales se prestaban fácilmente. Entre los que proporcionan la base para la jurisprudencia sociológica estaba el realista legal Roscoe Pound. Pound consideraba que la visión tradicional de la ley era demasiado “mecánica”. Más bien, debería considerarse que la ley refleja las necesidades sociales contemporáneas. La ley es proporcionar un conjunto de reglas, establecidas a través de procesos aceptados, dedicadas a la resolución de disputas entre los diversos intereses de la sociedad. La ley, por lo tanto, no es principios abstractos, sino reglas que se aplican a través de un sistema legal que posee suficiente discreción para maximizar la posibilidad de resolución de conflictos. Esta orientación enfatizó las “realidades” de la ley, pero también instó fuertemente a la investigación sociológica empírica (USA).
- Teoría del Derecho Natural
- Teoría del Derecho Divino
- Paloma Durán y Lalaguna: Notas de Teoría del Derecho. Castelló de la Plana. Publicaciones de la Universidad Jaume I. 1997
- Ignacio Ara Pinilla: Introducción a la Teoría del Derecho
- Brian H Bix: Diccionario de teoría jurídica. Instituto de Investigaciones Jurídicas. UNAM, 2009
- Mª. José Falcón y Tella: Lecciones de Teoría del Derecho. Madrid. Servicio de Publicaciones. Facultad de Derecho. Universidad Complutense de Madrid. 4ª edición revisada, 2009
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