WHY GENERAL JURISPRUDENCE IS INTERESTING.

AutorDickson, Julie
CargoEnsayo critico
  1. Introduction

    When Pau Luque, editor of this special issue of Critica devoted to legal philosophy, first approached me with the idea of writing a contribution for it, he strongly piqued my interest by mentioning his intention to explore whether general jurisprudence is philosophically interesting, and to do so using as a springboard into this topic, David Enoch's recent claim that it is not. (1) Pau very kindly offered me two options for my article: to discuss and critically engage with Enoch's views on this topic, or, alternatively, to discuss more generally my own views on the character, aims, and interestingness of general jurisprudence. Embracing those qualities of vacillation and contrariness for which academics are often known and justly lampooned, (2) I decided in the end to do neither in the sense of doing (a bit of) both: this article hence critically examines and contests some of Enoch's views, while offering and exploring aspects of my own views on the character, aims, and interestingness of legal philosophy.

    The discussion is structured as follows. In section 2, I begin by considering Enoch's case for answering the question "Is General Jurisprudence Interesting?" (Enoch 2015) in the negative. I then offer a critical analysis of the way in which he approaches this question and argues in favour of his conclusions. In section 3 I focus on, and seek to refute, Enoch's view that the sorts of questions often addressed by legal philosophers concerning the normativity of law are (relatively) lacking in philosophical interest. In so doing, I make a positive case for the view that questions concerning the normativity of law have generated particularly interesting conundrums, which themselves have given rise to further engaging puzzles concerning how various dualities inherent in law can be adequately understood.

    Section 4 argues in favour of understanding jurisprudential inquiry as having a broad remit, and seeks to emphasize the (overlooked by Enoch) deep and important relations of complementarity and continuity which exist between various sorts of questions addressed by legal philosophers. Section 5 continues and extends the discussion by presenting my own vision of what we should be doing, and how we should be doing it, when we engage in the philosophy of law.

  2. On Enoch's Approach to Establishing that General Jurisprudence Is Not Philosophically Interesting

    In, "Is General Jurisprudence Interesting?", David Enoch argues that it is not. Or rather, to render his thesis in terms of his self-proclaimed aims, he argues that general jurisprudence is not that philosophically interesting as compared with meta-ethics: more specifically, that questions concerning the character and status of the normativity of law, and the validity of legal norms, are "nowhere nearly as interesting" (Enoch 2015, p. 2) as analogous questions concerning the character and status of the normativity of morality, and the validity and reason-givingness of moral norms (Enoch 2015 passim).

    Enoch canvasses several reasons why, in his view, the normativity of morality generates significantly more interesting philosophical questions than the normativity of law. These include:

    (1) moral normativity is "full-blooded" in character, hence to explain moral normativity, philosophers must address issues such as how, if at all, moral norms can provide genuine reasons for action, be objective, motivate conduct (2015, sec. 3), whereas legal normativity is highly likely to be "formal normativity" (2015, pp. 7-8 and sec. 4) which--and an adequate explanatory account of which--"can be had for relatively cheap" (2015, p. 7) as it consists merely of criteria of correctness relative to a set of rules or norms devised by human beings and their social practices, such as whether the bishop may or may not be moved diagonally according to the rules of chess, or whether or not one ought to wear white after the United States' Labor Day holiday according to the norms of fashion, and hence does not raise interesting questions concerning genuine reasons for action, objectivity, or motivating and/or justifying conduct; (2015, sec. 4)

    (2) in the case of moral normativity, complex and intensely contested philosophical debates address genuine puzzles regarding whether moral facts and properties are response-dependent or response-independent, whereas in the case of legal norms, it is obvious and uncontroversial that the validity of legal norms is significantly response-dependent, so interesting philosophical debate on this matter is hence much thinner on the ground; (2015, sec. 6)

    (3) that meta-ethics makes a difference to, and hence has interesting implications for, first order normative ethics, whereas jurisprudence does not appear to have analogous first-order implications for the creation, development, and application of law, for example in matters regarding how judges should decide cases or in questions concerning the proper design and relative power of various legal institutions such as courts and legislatures. (2015, sec. 7)

    Enoch devotes most of his article to discussing reason (1) for the relative uninterestingness of general jurisprudence, and I follow suit, tackling this issue in some depth in sections 3 and 4 below. For the remainder of the present section, however, I seek to highlight some preliminary problems with the way in which Enoch approaches his discussion, problems which turn out to have important implications for the strength and cogency of the arguments he makes and the conclusions he seeks to establish.

    The problems begin in the introductory section of "Is General Jurisprudence Interesting?", when Enoch states that he does not think it necessary to offer a definition of "general jurisprudence" (2015, p. 3). In justifying this view, he makes the somewhat under-explained claim that: "Here as often elsewhere too, we know what we are talking about, and definitions are of little philosophical interest" (2015, p. 3). His point regarding definitions specifically may well be sound, and marks a point of firm agreement between Enoch and one leading proponent of general jurisprudence, namely H.L.A. Hart (Hart 2012, chap. 1; Hart 1983, Essay 1). However, Enoch's view that he need not linger over providing his readers with an adequately precise, determinate, and accurate characterisation or account of the target he has in mind is problematic in terms of the arguments he proceeds to offer. (3) For, far from us all knowing and agreeing upon what we are talking about, Enoch's narrow and somewhat peculiar view of what constitutes general jurisprudence, which emerges in the remainder of his article, seems, at least to me, to distort and misrepresent both the questions asked and the wide range of answers to those questions given by those working in this field.

    For example, at several points in "Is General Jurisprudence Interesting?", Enoch claims that "obviously, the wars over legal positivism" (2015, p. 1) are a centrally important part of general jurisprudence. He refers to contemporary general jurisprudence as being engaged in "the metaphysical project of which the wars over positivism are a major part" (2015, p. 31), and avers that:

    The controversy over legal positivism--how best to understand it, whether it's true, the distinction between different kinds thereof, and so on--is of course central to these discussions [of general jurisprudence], but does not exhaust them. (2015, p. 3) (4) Does not exhaust them? In my view, it is a significant mistake to hold that what sounds from Enoch's characterisation of it to be a sort of perpetual intra-mural jurisprudential ping-pong regarding what constitutes one school of thought to which some legal philosophers are alleged to belong, does, or should, form any significant part of legal philosophers' endeavours in attempting to understand the nature of law.

    I am far from alone in holding this view. Several important contemporary legal philosophers are highly sceptical of: (i) the usefulness of such jurisprudential labels in general, (ii) engaging in extended debates concerning what, and who, the labels properly refer to, and (iii) framing debates about the nature of law in terms of those positions which would allegedly be taken by those on one or other side of various dubious school-of-thought dividing lines. Neil MacCormick, for example, persistently criticised those who spend time and energy dividing the jurisprudential scene into "legal positivism" and "natural law", and who erroneously understand debates about the character of law in terms of who stands where in such a "two-way-divided universe of jurisprudence" (MacCormick 2007, p. 278), insisting that:

    In truth, such dichotomies [between legal positivism and natural law] are rarely revealing of any important truth. (2007, p. 278) It is better to reject the aforesaid dichotomy as based on a misleading account of the history of legal ideas than to trouble responding to the question: "Are you a positivist or a natural lawyer?" (2007, p. 279) Joseph Raz, often characterised by others as a "legal positivist", and then sub-characterised as a "hard" or "exclusive" legal positivist, has also persistently disavowed the usefulness and applicability of the label, and does not believe that framing jurisprudential debates in terms of it will yield insightful results:

    The harm is done by proceeding to make the division between "legal positivists" and "natural lawyers", so defined, the basic division in legal philosophy. (Raz 2003, p. 2) (5) Perhaps it is time not to refute legal positivism, but to forget the label and consider the views of various writers within that tradition on their own terms. (Raz 2007, p. 35) Other theorists, too, harbour doubts about the usefulness of the label "legal positivism", particularly in light of the many misunderstandings and over-extensions of it which feature in some jurisprudential literature. (6) Moreover, in many instances where...

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