Monday, May 25, 2015

Jurisprudence and (Its) History

Just out in the Virginia Law Review is the symposium "Jurisprudence and (Its) History," which was held last September and sponsored by UVA's Program in Legal and Constitutional History and the Virginia Law Review. As the review's website explains:
The Jurisprudence and (Its) History Symposium featured seven invited speakers, who each present a paper, and seven commentators, who introduced each session with a comment on each paper.  Those papers and commentaries have been published in Volume 101, Issue 4 of the Virginia Law Review, and can be found here.

The term “jurisprudence” typically refers to the philosophy of law. So understood, its aspirations are broad and deep; its aim is not to master some particular area of legal doctrine but to understand the nature and purpose of law in general. For the past several decades, however, jurisprudence has come to describe the more specific practice of using the techniques of analytic philosophy to clarify the meaning of familiar legal concepts, such as “right,” “duty,” “authority,” or “law” itself.

One consequence of this narrowing of scholarly ambitions is that less attention has been paid to those legal philosophers from the past who have had different, and often broader, understandings of what philosophical inquiry into law properly entails. In part because of this neglect, today many law students, law teachers, and lawyers who are deeply interested in exploring the intellectual foundations of law have dismissed jurisprudence as an esoteric field of study whose practitioners are gripped by concerns remote from their own.

The aim of this symposium is to consider whether the boundaries of jurisprudence might be broadened, and its insights deepened, by looking to the history of jurisprudential thought. Some papers examine the work of past legal philosophers, others consider the role that the history of legal provisions – particularly constitutional ones – plays in legal theory, and still others take up directly the methodological question of whether or in what way philosophical thinking has been or should be, influenced by its own intellectual history.  What all of the papers share, however, is a common concern with how history bears on philosophical thinking about law.
The papers listed below are all available here.  An introduction, by Charles L. Barzun, University of Virginia School of Law, and Dan Priel, York University Osgoode Hall Law School, is also up on SSRN.
It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.

But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one — one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people have attached to law. Perhaps, then, philosophical and historical inquiries about law share the same ultimate scholarly goal and subject matter.

This essay serves as the Introduction to a symposium in the Virginia Law Review that explores just this possibility. Its purpose is both to highlight some of the themes common to the symposium’s essays and comments, and, more ambitiously, to suggest that these papers show how philosophers and historians of law might bring their respective disciplinary methods to bear in answering the same kind of question. In particular, both methods are useful for answering questions about what best explains the endurance or disappearance of an idea, theory, or set of concerns in legal thought or practice. Our claim is not that legal historians and philosophers of law should agree in the answers they give to such questions. They will and should often disagree. Rather, our goal is to show how scholars from the two disciplines may plausibly be seen as joining issue in a productive debate, rather than simply talking past one another.
Contents after the jump

Marx, Law, Ideology, Legal Positivism, by Brian Leiter

Intellectual History as Constitutional Theory, by Lawrence B. Solum

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers, by John Mikhail

Sovereignty and Subversion, by Alice Ristroph

Toward Classical Legal Positivism, by Dan Priel

The Path-Dependence of Legal Positivism, by Frederick Schauer

Jurisprudence, History, and the Institutional Quality of Law, by Nicola Lacey

Jurisprudence, the Sociable Science, by Gerald J. Postema

Jurisprudence and (Its) History, by Charles Barzun and Dan Priel

Philosophical Inquiry and Historical Practice: A Commentary on Leiter's "Marx, Law, Ideology, Legal Positivism,” by John Henry Schlegel

Intellectual History and Constitutional Decision Making: A Commentary on Solum's "Intellectual History as Constitutional Theory,” by G. Edward White

Unintended Implications: A Commentary on Mikhail's "The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers,” by Deborah Hellman

A Commentary on Ristroph’s “Sovereignty and Subversion,” by Mark C. Murphy

Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel's "Toward Classical Legal Positivism,” by Jeffrey A. Pojanowski

What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer's "The Path-Dependence of Legal Positivism,” by Steven Walt

Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey's "Jurisprudence, History, and the Institutional Quality of Law,”by Kimberly Kessler Ferzan

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