Natural way to virtue?
Introduction to Jurisprudence and Legal Theory
This collaborative work by members of the London School of Economics law department sets out to provide an introduction to “mainstream” jurisprudence and an exploration of some specific topics and less well-trodden paths of jurisprudential thought and debate.
The book is divided into two sections. Section one, taking up slightly more than one third of the volume, covers natural law theory, analytical jurisprudence/ legal positivism, American realism and Ronald Dworkin’s theory of “law as integrity”. Section two presents, in ten separate chapters, a panoply of issues such as punishment, disobedience, the analysis of rights, justice and legal reasoning, feminist legal theory and economic analysis of law, and the thought-provoking work of contemporary legal theorists such as Niklas Luhmann, Michel Foucault and Jacques Derrida.
The order of chapters makes the book a suitable companion for a taught course, but most chapters can also be read as self-contained introductions to the areas they cover. In each chapter, most space is taken up by longish excerpts from the writings of prominent theorists, which are preceded by some brief background information, and loosely strung together by further explanatory notes.
The book gets off to a rather bumpy start with a general introduction focusing on a fictitious case (whose fictional nature can easily escape the less attentive reader) taken from some of Lon Fuller’s early writings. The subsequent exposition of natural law theory demonstrates par excellence the pitfalls of the book’s structure. The introductory pages setting out the history of natural law ideas are informative but superficial in their discussion. The excerpts are either too long or too short - and to make things worse, the overlong quotations are taken from ancient Greek, Roman and medieval works from which any stylistic appeal they may have possessed for their original readers has been thoroughly exorcised by the passage of time and the vicissitudes of translation.
I sincerely hope that none of my students will ever endeavour, with Richard Nobles and David Schiff, to “just state a few of these key ideas extracted from our brief history ” in terms reminiscent of passages such as “Law is a value, and like all values, one can and should strive to achieve it. Not to do so is barely worthy of the title of this virtue, law. Law is implicated in the common good...” or “judgement is inherently a moral exercise that will, over the long time-span, achieve its natural purpose, which is the moral purpose, to do that which is right and good”. The problem is not so much that this is wrong - it is merely somewhat woolly and inaccurate - but that a more inelegant expression of natural law ideas could hardly be contrived.
Things brighten up considerably when the authors hit positivism. There is a fine chapter by Nicola Lacey on analytical jurisprudence and H. L. A. Hart, full of well-selected quotes and interesting discussion. It is followed by an excellent chapter by Schiff on Hans Kelsen, which can be recommended as one of the best English-language introductions to Kelsen’s work. And James Penner’s three chapters on Dworkin and the reception of his work in the wider jurisprudential community are sound, readable and well rounded.
It is in its second part, though, that the book really comes into its own. Here is where it makes an original and important contribution to a crowded textbook market and offers accessible and high-quality introductions into fields that other compendiums of jurisprudence often neglect. Perhaps my favourite is the chapter on feminist legal theory by Emily Jackson and Lacey (this, incidentally, is the chapter from which - the reader is informed - three pages had to be removed at the last minute because the critically presented author refused consent to their reproduction, inviting sad reflections on the narrow-mindedness of some of those striving for the advancement of knowledge). In terms of readability, it has strong competition from Penner’s chapter on punishment and from Robert Reiner’s chapter on justice. And I am delighted that finally a sustained and successful effort has been made to present and explain the work of the person who is surely the most inspiring contemporary (though already late) German writer on jurisprudence, Niklas Luhmann, to an English-speaking student audience.
For those who want a “fat” textbook that contains materials as well as explanation, this book ought to be first choice. Whether students are better off with it than with a thinner textbook that does not purport to be either comprehensive or neutral but offers a personal “restatement” of jurisprudential ideas in an effort to whet students’ appetites for, and help their understanding of, the original texts is a matter for debate.
Any compilation of “texts and materials” on jurisprudence by a number of different people comes with two distinct disadvantages. First, there is no “author’s voice”, which makes it more, rather than less, difficult for students to engage with the works presented, and second, the very inclusion of a range of excerpts from the original texts might stifle rather than tickle the students’ curiosity for the quoted works themselves, which would be a pity because jurisprudence cannot be studied “second-hand”. That said, provided students do not heed the editors’ misguided “Health warning on reading and further reading” in the preface, which is meant to extend to the original texts, this textbook can be warmly recommended.
Antje Pedain is assistant lecturer in law, University of Cambridge.
Introduction to Jurisprudence and Legal Theory: Commentary and Materials. First edition
Editor - James Penner, David Schiff and Richard Nobles
ISBN - 0 406 94678 7
Publisher - LexisNexis Butterworths Tolley
Price - £29.95
Pages - 1,171