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I think this helps illustrate the 'why' problem of analytic jurisprudence. 'Why', as in 'to what purpose', do we care about the conceptual boundaries of law.
[A thread on contemporary jurisprudence, by a judicial theorist] https://twitter.com/alanigolanski/status/1333788299719110658
[A thread on contemporary jurisprudence, by a judicial theorist] https://twitter.com/alanigolanski/status/1333788299719110658
Whether positivism is exclusive or inclusive (or if law is 'natural') seems largely irrelevant. The law keeps on functioning irrespective of our conclusion.
Mostly, when we think we are talking about analytic jurisprudence we are really discussing it for ancillary purposes
Mostly, when we think we are talking about analytic jurisprudence we are really discussing it for ancillary purposes
By this i mean that analytic jurisprudence has become largely disconnected from real world practice, legislating and judging. Most judges won't have heard of Hart since undergrad. Some may have read some Dworkin. Very few will have read beyond that. They are not the audience
By way of example: Dworkin has been cited 19 times by Australian courts. That's all courts, EVER. (Thanks @austlii)
And this illustrates the a problem. Let's say Theory X provides the 'correct' answer to 'what is law'. The unspoken premise is that this would matter - that legal actors would change their conduct accordingly; and that we can validly critique if they don't.
If these legal actors are not aware of Theory X, and yet still appear to be performing function, then either Theory X perfectly reflects practice or they are acting unlawfully and yet effectively.
In the former case, the description force of Theory X may be perfect but its normative impact is non-existent. If Theory X did not exist nothing would change.
In the latter case, the designation of 'law' would be proven to be meaningless- legal actors would be mistakenly applying 'not-law' but nothing would follow from this. The normative significance of the designation would be hollow.
The uncomfortable conclusion seems to be that analytic jurisprudence is irrelevant to contemporary legal actors.
And for non-legal actors? This is actually really interesting. In some ways it is more important to be able to distinguish between 'law' and 'lawiness' for the general population. We don't want ppl to have authority to define lawable. Sov-cits show why: https://theconversation.com/many-anti-lockdown-protesters-believe-the-government-is-illegitimate-their-legal-arguments-dont-stand-up-146668
But the inaccessibility of analytic jurisprudence is doubly significant here. Most ppl cannot access, let alone understand this esoteric field.
It is entirely disconnected from their existence.
It is entirely disconnected from their existence.
To be clear, I was delighted with @scottjshapiro podcast, and found it clear and accessible. (And I love the twitter banter led by @EtkinBasak and her crew)
But I am an insider. And even I am racked with self-doubt and imposter syndrome in discussing this stuff.
But I am an insider. And even I am racked with self-doubt and imposter syndrome in discussing this stuff.
So where do we land? Modern analytic jurisprudence appears inaccessible and irrelevant to both legal insiders and outsiders. Why do we continue to care?
To return to the retweet at the start of this thread, judges seem to be influenced by moral considerations irrespective of any prevailing jurisprudential theory. Does this theory matter?
And this is why I describe myself as a judicial theorist, not a jurisprude or legal philosopher. For me the key question is not 'what is law?', but 'why do we care about the answer to 'what is law'?'
I suspect mostly, we care because we are interested in the underlying issues of judicial method, judicial accountability, political power and the promotion of particular political ideals.
The jurisprudential language is used as a rhetorical tool to disguise the true purpose
The jurisprudential language is used as a rhetorical tool to disguise the true purpose
In fairness, I think this is mostly unconscious.
But if our real purpose is the proper role of courts, or the appropriate judicial decision-making methods, let's look at that directly. It may be that to understand those we need a theory of law. But it may be we do not
But if our real purpose is the proper role of courts, or the appropriate judicial decision-making methods, let's look at that directly. It may be that to understand those we need a theory of law. But it may be we do not
Indeed it may be that understanding these alleviates us of the need for a strict delineation of the concept of law. Or that it provides a derivative concept.
Full disclosure. This is where I landed. I started out trying to define the judicial function. I ended up with a working derivative theory of judicial method, judicial independence and accountability. All without having to provide a definitive answer to the question of law.
It was literally unnecessary. We can discuss all of these concepts directly, and are better off doing so.
(Check out my attempt to weave all these topics together here:
https://www.springer.com/gp/book/9789813291140)
(Check out my attempt to weave all these topics together here:
https://www.springer.com/gp/book/9789813291140)
Ultimately I think it is better to directly discuss the limits of the governance and dispute resolution functions of courts, than engage in an esoteric discussion on the nature of law (as fun as this may be)
So this is why I am a judicial theorist.
I suspect that one day I may write about jurisprudence more. But only if I can convince myself it matters. Until then, I am not a positivist (inclusive or otherwise) nor a natural lawyer.
I suspect that one day I may write about jurisprudence more. But only if I can convince myself it matters. Until then, I am not a positivist (inclusive or otherwise) nor a natural lawyer.
I can accept the label 'jurist', the binding nature of law, and the legimate role of morality and judicial evaluative choice. Its messy. It may involve paradox (thanks Fuller), but it is - hopefully- intellectually honest.
And that is the most important thing we can bring
And that is the most important thing we can bring
