Philosophical Foundations of the Common Law: Social Not Metaphysical

Abstract

This paper examines the implications and merits of the view of analytical jurisprudence as self-standing as against H.L.A. Hart’s purportedly more even-handed vision of the relative contributions of sociology and analytical philosophy to the project of theorising law. The paper raises questions not only about the still controversial intellectual imperialism of analytical, internal jurisprudence but also about the more widely accepted view that internal and external approaches to legal theory may be separated from one another. On closer inspection, the internal/external distinction appears highly problematic. Sociological legal theorists accept that they are bound to attend to the distinctive qualities of law as a social practice – its doctrinal system, its institutional structure, its methods of reasoning and so on. Hence the sociological approach clearly takes seriously the ‘internal’ logic of law. What distinguishes the sociological approach is not so much a strict sociological methodology but rather a general commitment to theorising law as a social phenomenon. This commitment brings with it a focus upon the historical development of legal orders and their interaction with their social, cultural, political and economic context. Hence it is argued that analytical or normative jurisprudence can itself not dispense with these insights: that it makes no sense, to put it in Kelsen’s terms, to try to ‘discover the specific principles of a sphere of meaning’ independently of the socio-historical context in which that sphere exists. Hence, as Cotterrell puts it, ‘the enterprise of sociological interpretation of legal ideas is not a desirable supplement but an essential means of legal understanding.’