General Jurisprudence: A 25th Anniversary Essay

Abstract

Law is a parochial business whose character and content depends on local institutions, events, and understandings. Thus it is that the most learned scholar of English law can be an ignoramus about Estonian law, let alone the law of remote societies or ancient times. To call law parochial may sound like a complaint. It is not-law would be of less value were it not firmly rooted in the societies it serves. But it does raise the question of how far we can hope for a theory of law. Particular facts can be explained; but to have a theory is to have an explanation at some level of generality. It is one thing to theorize doctrines within a legal system, to develop the branches of special jurisprudence; but how far can we work out a general jurisprudence, a theory of law as such, that will apply to contracts and to constitutions, and in Estonia as much as in England? Not every project that calls itself a 'general theory' is intelligible. Back when political scientists aspired to general theories of politics, Alasdair MacIntyre mocked them with a parable about an eccentric quest for the general theory of holes.1 It was a needed warning; but in law things are not yet that dire. Modern jurisprudence does not advance a unified theory of everything that is properly called 'law', including the law of England, the moral law, de Morgan's laws, and Boyle's law.2 All the same, it does aspire to great generality, and there is the question of how even that can be done. One answer was offered by Aristotle, who said that in addition to 'particular law', i.e. 'that which each community lays down and applies to its own members', there is also 'universal law', the principles of natural justice rationally binding on everyone apart from any local terms of association.3 That is the germ of the