'Why Jurisprudence Is Not Legal Philosophy' by Roger Cotterrell in (2014) 5(1)
Jurisprudence seeks to
describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals.
'Law as Language' by Marianne Constable in (2014) 1(1)
Critical Analysis of Law proposes
understanding law as language. Doing so offers an alternative both to jurisprudential accounts of law as a system of rules and to sociological accounts of law as effective (or ineffective) social power. Part II shows how approaching law as language takes doctrine and legal texts seriously, as speech acts of claiming that do things, rather than as nounlike rules or their application. Such an approach recognizes that legal actions or events of claiming are “imperfect” in a grammatical sense: practical knowledge of law is incomplete, continual and interruptible, while legal acts occur more and less well under particular conditions. Understanding law this way, part III shows, also enables one to critique narrow approaches to law as “policy” or as exclusively a problem-solving tool or instrument. The paper not only argues that law may be thought of as language then. It ultimately suggests another law: that we are creatures of language.
Constable argues
Jurisprudence, legal history, and other humanistic disciplines have over the centuries of- fered a range of insights into the perennial questions of what to do or how best to live, how we know, and who we are. In so doing, philosophy (Plato), rhetoric (Vico), and social theory (Montesquieu), as well as history and literature, have often questioned the justice of law. That they have done so suggests that law has been taken — or has offered itself — as a site of justice or at least as a site in which issues of justice can be addressed.
Today, as professional law schools turn increasingly to economics and the empiri- cal social sciences to deal with social problems that they would solve through what they call “policy,” the relation of law as policy-making to traditional humanistic accounts of justice and how it is addressed becomes an issue, even as the relevance of the humanities and of humanistic studies to professional legal study is brought into question. The rise of law and economics, combined with the marginalization of critical studies and even social theory in professional law schools in the U.S., means that law seeks to become ever more “rational,” while sociolegal research becomes increasingly bound to the methodological requirements and outcomes of statistical empirical research. Policy-makers today address questions about what to do through problem-solving approaches that rely on economic and statistical methods and frameworks and tacitly foreclose particular sorts of answers — and even questions.
Some legal scholars still turn explicitly to humanities over social sciences to improve law in a particular way. They sometimes suggest that law “needs” the humanities, that the humanities are the conscience of law, that the humanities can make law — or that humanists can teach law to be — more honest and good. The humanities are not a religion, though. Humanists are not moralists, priests, nor even judges to be turned to for guidance, absolution, or pronouncements of justice. So what do the humanities offer law?
This paper proposes that if we continue insisting on “the humanities” (itself a question), then the humanities can be said to be characterized by a sensitivity to language, broadly understood, in readings (or interpretations or analyses) of texts and images and other cultural and historical artifacts. The attention paid to language in basic legal education itself suggests that law already belongs in the domain of the humanities. Thinking about law as language need not be identified with a particular field nor even with a set of approaches dubbed “law and humanities,” however. Furthermore, that humanists interpret does not mean that they do not make arguments. Indeed, the argument pursued here is that modern law is fundamentally a matter of language and that there are some things one cannot understand about law if one does not understand language — and the limits of speech.
This argument challenges the claims of legal philosophers and social scientists that law is fundamentally a matter of coercion or of social power. The point that law is a matter of language is not a return to the privileging of doctrine, however. It also goes beyond simply claiming that to engage in the practice of U.S. or Canadian law at this time, one must have some facility in reading, writing, and speaking the English language. It emphasizes in part what legal practitioners certainly know: that words do a lot of different things that are generally described philosophically as “speech acts.” Practitioners develop, to varying degrees, the skills required to carry out legal acts which, to be successful, must fulfill particular conditions. Legal practitioners also know, as well as humanists, that language, however beloved or despised, is always susceptible to going wrong. As practitioners of language, practitioners of law must become adept at using words and at judging what words say. The imperfections of law correspond at least in part to the imperfections of language. Words promise truth. They ostensibly show us the world as it is. Words can be misspoken, misheard, and misunderstood, though. Words can be inappropriate or misappropriated, deceptive, inaccurate, or wrong, even downright dangerous. So too can law and legal claims.
The first section (part II) shows how law corresponds with various aspects of language. One distinguishes particular utterances or speech acts from practical knowledge of language. Such knowledge is, in a grammatical sense, “imperfect.” The imperfect names the incomplete, continuous, ongoing, routine, habitual, interruptible aspect of action, as in, “She is running every day, except when it rains” or “We were speaking English when we made the agreement.” The “perfect” refers to a completed act: “She ran” or “It rained” or “We spoke” or “We agreed.” As in language, so too in law, one can distinguish perfected or completed legal acts or events from an “imperfect” or ongoing tradition of background practical knowledge.
The second section (part III) shows how the language of modern law reveals in- sights into who we—as problem-solvers—are and what we know, as well as into what we do. Attending to law as language, the paper concludes, may provide entry into fresh ques- tions about the nature of modern law and justice, an issue that far too many contempo- rary philosophers and scholars of law take for granted.
