Bringing the Outside In

Abstract

Newcomers to jurisprudence are invariably struck, and are sometimes depressed, by the way in which legal theories do not meet squarely on a shared battleground, but appear to slip past each other in covert manner. Each theory seems to address issues which are slightly different from those addressed by its rivals. Some students conclude that there is no genuine disagreement at all: the whole debate comes to seem phoney and trumped up. Others are tempted by the bland view that the seemingly warring factions may in fact be fellow labourers in a field of knowledge where insights are cumulative rather than mutually incompatible. These common responses are erroneous. Philosophies of law fail to meet each other squarely not because they have no genuine disagreements but because they have so many. Philosophy is a self-reflective discipline; the question of the nature of philosophy is itself a central philosophical question, and that fact alone is sufficient to generate a high degree of complexity in the debate. Theories disagree as much about the nature of legal theory as about the nature of law, and the self-reflective dispute cannot be neatly insulated from the substantive enquiry. Differing views about the nature of legal theory will manifest themselves at every turn: in the interpretation of classic texts; in decisions about the parameters of enquiry; and in the type of perspective that informs the inquiry. A growing appreciation of the complexity of the debate has led to increasing dissatisfaction with the traditional categories beloved of textbook writers. Distinctions between 'natural law' and 'legal positivism', or between 'analytical' and 'normative' jurisprudence, provide a misleading framework for the discussion of much of the literature. It is of course true that the categories do not matter in themselves: sooner rather than later we have to study the writings of particular theorists and grapple with their subtle and multi-layered positions. Yet broad categories retain an importance that it would be wrong to underestimate. We do not require a course of literary theory to be aware of how far the positions that we find in the texts that we read reflect the expectations with which we approached those texts. It follows from this that an inappropriate framework may be confirmed rather than corrected when we embark on more detailed study. It is precisely because broad categorial frameworks have this self-entrenching quality that we must, from time to time, seek to challenge them. This should not be done in an iconoclastic spirit, nor should it be accompanied by the empty