Scholars of the Law: English Jurisprudence from Blackstone to Hart.

• Author: Duxbury, Neil

By Richard A. Cosgrove. New York: New York University Press. 1996. Pp. x, 262. $45.

INTRODUCTION

As with exercise, there are people who are passionate about jurisprudence, people who dislike it, and people who believe in its value without actually engaging in it. Certainly in the United Kingdom, distinguishing the latter two categories of people can be difficult. Admitting a dislike of jurisprudence is a rather unlearned thing to do, which is perhaps why such admissions can seem rather striking.(1) For those who speak in defense of jurisprudence. however, the rarity of such admissions poses a problem. "Jurisprudence," Dicey asserted, "is a word which stinks in the nostrils of the practicing barrister."(2) The legal practitioner of the late-nineteenth century, according to Buckland, was "never more than tolerant" of jurisprudence, and even toleration was exceptional, "the more usual attitude being one of disgust and scarcely veiled contempt."(3) In the latest edition of Lloyd's Introduction to Jurisprudence -- perhaps the most popular of British jurisprudence textbooks -- the editors state that "[w]hen the first edition of this book appeared in 1959[,] jurisprudence was still something of a `dirty word.'"(4) Patrick Atiyah has more recently bemoaned "the general aversion to theory"(5) that seems to pervade the English legal system. No doubt a considerable amount of truth resides in all of these claims. Yet it is difficult to take issue with them for the simple reason that they report rather than support a particular outlook. Rarely in the United Kingdom does anybody confess a thorough disdain either for jurisprudence or, more generally, for theory -- even though such disdain is apparently very much alive and, as the quotations above suggest, plenty of commentators are willing to tell tales on the philistines. How are those who care about jurisprudence to rebut such philistinism if hardly anyone is owning up to it? Criticism, we know, can be very difficult to negotiate when it takes the form of hearsay.

Things seem very different in the United States. Here, law professors are remarkably willing to identify themselves with theories, movements, and schools, and to identify others similarly. People set themselves up as proponents of critical legal studies and law and economics, as feminists, pragmatists, postmodernists, liberals, and communitarians. British academic lawyers who do this sort of thing usually end up working in the United States, Canada, or Australia. Labeling -- and, especially, being labeled -- is something with which British legal academics are not at all comfortable. This aversion to being labelled is perhaps the cause of the difficulty suggested above. It seems unlikely that, even in the United States. many academics would wish to go on record as Paul Carrington did some years ago when he spoke out against critical legal studies.(6) Such reluctance is, in the United Kingdom, still more intense: never mind that one does not wish to be seen to be opposed to critical legal theory, economic analysis, or whatever; one generally does not wish to be seen to be opposed to any theory. And so it is that we have the hearsay and the tale-telling: there are people out there who, while disinclined to admit as much, bear antipathy toward jurisprudence. Who? Sorry, no names.

So jurisprudence in the United Kingdom has enemies behind closed doors. So what? The problem is that jurisprudence has traditionally occupied -- and still does occupy -- a major place within the law curriculum.(7) A survey published in 1974 reported that jurisprudence was a compulsory course of study in twenty-one out of the twenty-eight respondent university law schools.(8) A decade later, a follow-up survey reported that the course was compulsory in thirty-two of the fifty-six respondent institutions.(9) The most recent survey reports that thirty-two out of the sixty-four respondent law schools teach a compulsory jurisprudence course.(10) In half of Britain's law schools, then, most students have no choice but to study jurisprudence.(11) This requirement sits uneasily with various other recent developments in British legal education. The past two decades have seen a notable increase in the number of theoretically oriented courses on offer in British law schools -- courses such as criminology, sociology of law, law and medical ethics, law and economics, and regulation. The proliferation of such courses is considered by some (even by some legal theorists) to weaken the case for retaining jurisprudence as a compulsory subject.(12) A significant number of law schools, furthermore, are in the process of moving -- or have already moved -- toward an American-style modular curriculum. Part of the rationale for doing this is to facilitate greater student choice. Yet, especially during their first two years of study, most law students enjoy remarkably little choice. Indeed, their range of choice will be diminished still further once European Community Law becomes one of the core LL.B. modules.(13) When law schools emphasize the ability of students to choose the content of their law degree and offer an increasing number of theory-based courses, retaining compulsory jurisprudence seems ever more contestable.(14) Small wonder, then, that those who champion the study of jurisprudence should sometimes seem defensive when responding to criticisms of their enterprise.

While the precarious position of jurisprudence as a compulsory subject in large part explains this defensiveness, it can be attributed also to the fact that opponents of the subject -- with the possible exception of students -- rarely make a point of identifying themselves as such. What is interesting is that the manner in which jurisprudence tends to be defended is rather influenced by the fact that its detractors generally go unnamed. Although those who defend jurisprudence dearly wish, in one way or another, to justify their subject, it is rarely ever clear to whom these justifications are being directed. So while we have, in the United Kingdom, a venerable tradition of writing in the cause of jurisprudence, such writing seldom seems to have a clear target. The message is invariably the same: jurisprudence -- again, like exercise -- is beneficial if sometimes difficult. When the standard textbooks deliver this message -- which sometimes they do(15) -- the intended audience is obvious. In other contexts, however, one wonders to whom the proselytizers purport to speak. Defenses of jurisprudence tend, if anything, to read like efforts to preach to the converted -- which is perhaps not surprising, given that these converts are often more openly critical of their subject than is anyone else. Indeed, there runs throughout English jurisprudential writing a marked tendency to express doubt about the nature and purpose of one's enterprise and to worry about the adequacy and effectiveness of one's endeavors.(16) It is as if those of us who, in one way or another, engage in jurisprudence spend a considerable portion of our professional lives talking to, and fretting among, ourselves.

COSGROVE'S STORY

In Scholars of the Law, Richard Cosgrove(17) tells a story that, though different from the one outlined above, has a similar conclusion. Today, Cosgrove believes, English jurisprudence is introspective -- a discipline, indeed, in conversation with itself. However, it was not always thus. There was a time when jurists were, to steal Stefan Collini's term, public moralists-men of letters who wrote about matters of public interest and whose "writing was not hermetic, technical, clandestine,"(18) but addressed to a general educated audience.(19) Cosgrove, himself an historian, purports to tell this story for fellow historians.(20) He wishes "to introduce historians to those jurists whose names are usually well known, but whose place in the intellectual history of modern jurisprudence is rarely understood" (pp. 17-18) and "to contribute to the reunion of legal theory with intellectual history in order that historians may understand better the place of jurisprudence in academic legal culture and in the more general concerns of society" (p. 19). Cosgrove's decision to write a book principally for historians perhaps explains why significant portions of Scholars of the Law read like routine surveys of relevant literature -- surveys that do not always appear to bear a direct relationship to the story he sets out to tell. Although wishing to give historians a helping hand, to provide them with some basic information about English jurisprudence, Cosgrove seems rather wary of those who, in one way or another, actually do jurisprudence. Legal philosophers, Cosgrove believes, probably with justification, are apt to neglect historical context.(21) Thus it is that we have a book by an historian for historians that just happens to be about jurisprudence.

Yet Scholars of the Law is a book with which, I imagine, few historians are likely to be satisfied. Cosgrove presents a very simple story in a very simple fashion. Indeed, the story that he presents is rather too simple It is a story that relies on nostalgia and that is not especially well contextualized. Furthermore, Cosgrove tells his story in a somewhat judgmental fashion. It is a story about heroes and villains, successes and failures, even fame and obscurity. Legal philosophers are, in general, judged not so much by the quality of their ideas as by the shelf life of their writings, by their...