The Concept of a Lawyer's Jurisprudence

Abstract

This article is intended to supplement another article, but it is hoped that it may be capable of standing on its own legs. The other article referred to is that entitled “The Concept of a Philosophical Jurisprudence,” by Professor Michael Oakeshott, which appeared in the now extinct journal “Politica” in September and December 1938. The point in that article at which the present article may be appended occurs on p. 350 in the December number (Vol. III, No. 14), where Professor Oakeshott distinguishes two inseparable stages in the process of philosophical inquiry. “First, there is the identification, the mere designation of the subject of enquiry. If we are to determine the meaning of the concept ‘law,’ we must know how to apply the word ‘law.’ And this is to be learnt only by a critical examination of the ways in which the word is ordinarily used. But such an examination leaves us with merely the definition of a word, leaves us merely with the identification of a thing. We have that one thing clearly before us, but we have nothing else; we have the text, but its full meaning is still to seek.” The exploration of this full meaning, of the “context” in which the thing law stands as “text,” is for Professor Oakeshott the second stage in the inquiry which ends with the establishment of a philosophical concept of law—and he has offered guidance of the greatest value to all explorers. This article, however, will be concerned only with the method of obtaining the “text” from which that exploration may begin. It is suggested that it is a particular method of obtaining this “text” which constitutes the distinctive characteristic of a lawyer's jurisprudence.