Theorising Areas of Law

Abstract

This paper provides a general account of special jurisprudence, i.e. the part of jurisprudence that deals with theorising discrete “areas of law”. Section II starts with a few comments on the nature of theorisation itself. We claim that a theory is an at-tempt to provide an explanation of a phenomenon with the aim of understanding the phe-nomenon. We then outline three types of theoretical questions that are of relevance to us: ontological, empirical, and normative. Section III claims that “an area of law” is an inter-subjective social artefact that exists only because legal officials, practitioners, academics, and other actors, who constitute the “legal complex” in a given society, recognise it as such. We further claim that once an area of law is so recognised, it starts experiencing pressures to make it coherent in three distinct, but interrelated, ways. These are coherence-as-non-contradiction, coherence-as-consistency, and normative coherence. Over time, these coher-ence-seeking forces are likely to lend the area of law a distinct identity. Section IV deals with the three different approaches to special jurisprudence. It taxonomises the field based on whether the theoretical enterprise is ontological, empirical, or normative. Ontological theories aim to explain the nature of an area of law. They are usually concerned with its identity and its essential or defining features. Empirical theories are concerned with the actual functioning of legal actors and institutions. They tend to go beyond an exclusive focus on legal doctrine. Normative theories, we argue, may be detached or committed, ideal or non-ideal, universal or local, hypernormative, or interpretive. Ontological and normative theories usually deploy philosophical tools, whereas empirical theories use social science methods. Section V explores what it means to provide a theoretical foundation of an area of law, in terms of its ‘functions’ or ‘aims’. We argue that a foundational claim about an area of law in relation to its function or aim is a committed or detached normative theory. Section VI deals with two distinct methodological problems in special jurisprudence. The first of these is the “problem” of transparency—to what extent, if any, should a theoretical explanation of an area of law itself be accepted, at least by legal officials? We argue that official recognition is not a success condition for a theory. The second problem is the prob-lem of fit. Underfit occurs when the theoretical claim is insufficiently supported by the facts that inform the theoretical enterprise. Overfit is a problem when theoretical claims fail to sufficiently explain the available facts about legal practice (even after making allowances for the complexity, contingency, and multiplicity of factors that bring about such facts), and this failure cannot be explained by practical mistakes. Section VII concludes.