The anti-democratic origins of analytical jurisprudence

Abstract

ABSTRACT In this article, I address general jurisprudence's ‘dirty little secret' or its apparent tension with normative conceptions of democracy. I argue that this tension is not coincidental, but a historical byproduct of an anti–democratic vision of the public and its epistemic competence amongst key figures in the history of analytical jurisprudence. I turn to John Dewey to trace this history, and elaborate on Dewey's critique of John Austin and Henry Maine, and their shared attempt to discount the normative value and conceptual possibility of popular sovereignty via their insistence on the public's epistemic limitations. I argue that the anti–democratic components of their thought resurface in HLA Hart's jurisprudence and note specifically that Hart's hierarchical model of legal normativity, and his focus on officials as the locus of law's validity and normativity, reproduce features of Austin and Maine's accounts of law rooted in their respective critiques of popular democracy. I conclude by suggesting how Dewey's early critique of Austin and Maine can inform Lon Fuller's insistence on the public’s constitutive role in legal legitimation and validity, and may pave the way for a jurisprudence better attuned to the demands of democratic societies.