Roger Cotterrell, Queen Mary University of London
Has juristic theory, what Anglophone scholars call jurisprudence, caught up with the contemporary world? Does it engage fully with real-world socio-legal issues? Or does it mainly hide away in regions of conceptual abstraction that are hard to relate to the most pressing developments in law and society?
Under the still powerful influence of H.L.A. Hart’s The Concept of Law, published more than half a century ago, much jurisprudence still seeks ‘essential’ conceptual features of law, discoverable irrespective of time and place. This unending project of timeless abstraction, a search for philosophical truth, apparently needs no input from empirical social inquiries. Today, jurisprudence scholars (jurisprudes, as Karl Llewellyn called them) often appeal to what they understand as the discipline of philosophy to validate their inquiries. Typically, they label their work legal philosophy to claim this imprimatur. Meanwhile crises – with huge theoretical implications – burst all around law and attract empirical socio-legal inquiry.
Ecological change threatening climate collapse may be the most obvious such crisis. But it has little resonance in current philosophy of law. Recently, however, juristic theorists have tackled important new subjects: legal pluralism, transnational law, and the new fields, forms, and ambitions of international law. Some are keen to build legal theories of cultural diversity, and of the many kinds of identities and allegiances that feature in contemporary Western societies. But these are minority pursuits, outside the mainstream of current jurisprudence. Beyond legal positivism, some jurisprudes engage with moral and political philosophy – but hardly ever with social science. So, great changes in and around law which socio-legal scholars study pass mainstream jurisprudence unnoticed.
My forthcoming JLS article ‘A Socio-Legal Quest: From Jurisprudence to Sociology of Law and Back Again’ is not only a complaint against current jurisprudence’s lack of interest in social scientific research on law. It also aims to show that the situation was not always like this. Before Hart’s mid-20th century philosophical revolution in Anglophone jurisprudence, leading jurisprudes (especially but not only from continental Europe) actively engaged with the social and human sciences and history to analyse juristic practices, and their writings exerted influence in the Anglophone world. They showed a breadth of social imagination and curiosity that has disappeared from much jurisprudence scholarship today. And certainly, Anglophone jurisprudence was less parochial. It drew on very diverse foreign language sources, and not just to show the superiority of home-grown theoretical products.
Today, socio-legal studies (SLS) and juristic theory seem to inhabit unconnected worlds. Is this an inevitable situation? Should SLS just ignore contemporary mainstream jurisprudence as an intellectual backwater? I suggest not. Jurisprudence, if understood as an enterprise of practically oriented juristic speculation, has the potential to show law as a socially valuable idea taking various forms in different times and places. SLS needs legal theory to gain a view of the idea of law as realised in its diverse settings – to put this idea in broad perspective.
At the same time, contemporary jurisprudes should shed their philosophical distrust of empirical inquiry. Jurisprudence’s destiny is not to be philosophy (although it can use philosophical resources). Its task is to collect insights about law to aid jurists in their practical work. It is a craft enterprise whose worth comes only from its juristic relevance. It can draw theoretical ideas from any branch of knowledge that promises help. It is not social science, but as a value-oriented juristic enterprise jurisprudence should use the resources of SLS and social science to make its inquiries relevant in a rapidly changing socio-legal world.
Broadly, my article proposes that ultimately SLS cannot do without theory to arrange its empirical inquiries around an idea of law and link them to some overall sense of what can be hoped for from law as a social phenomenon. Correspondingly, contemporary jurisprudence scholarship should descend from the clouds of philosophical abstraction to assume again its proper place in offering theory to inform the real world of lawyers’ practice. It should provide a sense of law’s place, and its paths of development, in the face of socio-legal challenges. SLS and jurisprudence are different enterprises. But they can assist each other in important ways.