Clio Unbound: Theories of Law between Discourse and Tradition

Abstract

This paper argues against two extreme attitudes to the history of a discipline: on the one hand, ignorance and dismissiveness; and on the other hand, canonisation. The ever-present challenge is to find a balance between these two extremes. The paper attempts to walk the middle way by offering an alternative history of theories of law. It does so by revealing the basic characteristics of theories of law that tend towards either the explanatory paradigm of discourse or of tradition. Discourse-oriented theories tend to give explanatory priority to autonomous systems or orders of already articulated rules or norms. They also tend to conceptualise behaviour from the first person ex ante perspective, and tend to require explicit deliberation, even at the level of social conventions. The political value behind these theories tends to be the imposition of social order from above and the constraint of the power of officials by the rule of law. Tradition-oriented theories tend to give explanatory priority to the long-term activities of persons interacting in certain distinct contexts (such as various kinds of communities and institutions). They tend to conceptualise behaviour as consisting of embodied, though not completely unreflective, learning, resulting in the formation of certain skills and propensities. They also tend to focus on the transmission of social knowledge via the involvement of persons in certain contexts of interaction. The political value behind these theories is that of responsiveness and attention to the needs of the disadvantaged. The paper does not set out to evaluate the strengths or weaknesses of either explanatory paradigm. Rather, the aim is to offer an alternative history of the discipline of jurisprudence, with the hope that it encourages the construction of other such histories, thereby opening up possibilities for finding new insights in the works of the past. If, as it is argued, the formation of a jurisprudential orientation is at least partly dependent on how a legal theorist understands the history of jurisprudence, then offering alternative ways of seeing that history also carries with it the potential for renewing the discipline.