The Jurisprudence of Law's Form and Substance

Robert S. Summers

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138700321
• eBook ISBN:
  9781351792080
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2000:  Robert S. Summers is a distinguished legal theorist whose work has had significant influence in Europe as well as the United States. The study of form and substance in law, the theme of this collection, marks many of his most distinctive contributions to law and legal philosophy over four decades.

[1]
The New Analytical Jurists

I
Introduction

IT seems appropriate to introduce an article of this nature by I describing what it is to be a jurist.¹ A jurist is not a lawyer, although he may be and often is. A jurist is not a teacher of substantive law, although he may be, and usually is. Instead of drafting contracts or trying cases, instead of researching and teaching the elements of a crime or the theory of consideration, the jurist studies jurisprudence. Jurisprudence is concerned with the nature of law, its functions, the means by which it performs these functions, the limite of law, the relation of law to justice and morality, the modes by which law changes and develops, and more.²

Jurisprudence, like many other branches of phiiosophy, has its schools of thought, among which are the “historical,” the “sociological,” the “evaluative,” and the “analytical.”³ This scheme of classification is, in important ways, an unhappy one,⁴ but it has served to differentiate those jurists who are primarily interested in approaching the problems of jurisprudence historically, those primarily interested in approaching them sociologically, those concerned with the evaluative or normative side of these problems, and those whose interest in such problems is “analytical.”

Each of the foregoing general types of jurisprudential inquiry has its own distinctive history and its own hall of fame. Thus, Anglo-American⁵ analytical jurisprudence may be said to have started with Hobbes⁶ and to have achieved its zenith in’the nineteenth century in the works of the British jurist, John Austin,⁷ and his successors in the English-speaking world. But it is not the object of this article to trace the history of analytical jurisprudence. Rather, this article is addressed to two seemingly simple questions: What are the new analytical jurists doing? How does this differ from what their predecessors did?

Contrary to what is very widely assumed, even by interested legai scholars,⁸ it is now both possible and important to distinguisi! between, on the one hand, the work of “old” analytical jurists—John Austin and his successors,⁹ including Gray,¹⁰ Hohfeld,¹¹ and Kocourek¹² in the United States—and, on the other hand, the published efforts of a group of Anglo-American analytical jurists that has emerged since World War II. This latter group includes H. L. A. Hart,¹³ Glanville L. Williams,¹⁴ and Graham B. J. Hughes,¹⁵ all Britons, and Ronald M. Dworkin,¹⁶ Charles Fried,¹⁷ Herbert Morris,¹⁸ and Richard A. Wasserstrom¹⁹ of the United States.²⁰ Inasmuch as the work of these new jurists is in the analytical vein, it plainly has more in common with the efforts of earlier analysts than with that of adherents of other modem “schools.” Yet this fact should not be allowed to obscure the very great differences between the old and the new. The new is broader in scope, more sophisticated in methodology, less doctrinaire and positivistic, and more likely to be of practical utility.

Before discussing each of these differences in tura, several caveats must be entered to forestali misunderstanding. First, it is not claimed that what is new in the recent analytical jurisprudence is new to the philosophical world generally. Many of the new analytical jurists have drawn on techniques, distinctions, and ideas already familiar in phiiosophy, particularly twentieth century analytic phiiosophy.²¹ Most of what is new in their work is characterized as such only because of its novelty within the tradition of analytical jurisprudence as a branch of scholarship, Second, while the “new analysts” are grouped together for the purposes of this article, it must not be assumed that they agree on specific solutions to any of the problems they have been seeking to resolve. There is not yet any evidence of such agreement. Hence they do not, doctrinally, form a “school.” They form a school only in the limited sense that a major part of the work of each is analytical in nature. This leads naturally to a third caveat. From the fact that these thinkers are concerned with analytical studies, it should not be concluded that they have no interest in sociological or evaluative inquiries. There is no evidence that any of them is exclusively occupied with analysis. Finally, it is not suggested that the new analytical jurists have a monopoly. They plainly do not. A significai number of professional philosophers interested in law are now pursuing what they cali “legai phiiosophy.”²² Moreover, in spite of the rampages of behavioralism within the discipline of politicai science, there are stili some politicai “theorists.”²³ While these thinkers are not, for the purposes of this article, called analytical jurists, there are no substantia! differences between what they do and the work of the new jurists, all of whom are or have been members of law faculties.

II
Scope of the New Analytical Jurisprudence

The new jurists are performing a wider variety of analytical activities than did most of their predecessors. These activities can be divided into four main types (a good philosophical number): (1) analysis of the existing conceptual framework of and about law; (2) construction of new conceptual fràmeworks with accompanying terminologies; (3) rational justification of institutions and practices, existing and proposed; and (4) “purposive implication”—tracing out what the acceptance of social purposes ‘’implies” in terms of social arrangements and social ordering. AH analytical jurists have been interested in the first of the foregoing activities—conceptual analysis. In fact, conceptual analysis has been a main, if not the primary, interest of analytical jurists, old and new. But, compared to most of the older analysts, the new are analyzing a wider range of concepts and performing a wider variety of analytical activities. These represent significant differences of scope.

A. Analysis of the Conceptual Status Quo

At least to philosophers, conceptual analysis is important because clarity and insight are important.²⁴ Concepts, and their interrelations, often turn out to be far more complex than is supposed. Through analysis, it is often possible to achieve better understanding. But this is not all that analysis accomplishes. As the philosopher J. L. Austin was fond of observing, a sharpened awareness of the uses of words can sharpen our awareness of phenomena.²⁵ This is not, by any means, a new idea. Plato, in the Cratylus, had Socrates ask of Cratylus: “What is the force of names, and what is the use of them?” To this, Cratylus replied: “The use of names, Socrates, as I should imagine, is to informi the simple truth is, that he who knows names knows also the things which are expressed by them.”²⁶

What is conceptual analysis? Whether we speak of “conceptual analysis” or of “analyzing the uses of words,” it all comes to much the same. The phrase “linguistic analysis,” though often used, is less appropriate. It implies that language itself is the relevant subject matter, and this is not so. The relevant subject matter consists of concepts or ideas currently used by either laymen or professionals in dealing with law. Language, of course, is necessary, but only as the means by which, and the medium in which, concepts or ideas are dealt with.²⁷ It is possible to hint meaningf ully at the range and variety of relevant concepts or ideas for conceptual analysis. Consider the following inexhaustive list:

(1) Concepts used in formulating theories of law, e.g., sources of law, adjudication, minimum efficacy; sanctions.

(2) Concepts used in characterizing theories of law, e.g., imperative, positivist.

(3) Concepts that are more or less creatures of law, e.g., ownership, corporation.

(4) Concepts widely used in formulations of substantive laws, e.g., intention, causation, possession.

(5) Concepts used to demarcate basic legai relations, e.g., right-duty, powerliability.

(6) Concepts centrai to the administration of law, e.g., inter-pretation, ratio deciderteli, discretion, stare decisis, justification.

(7) Concepts used in classifying laws, e.g., criminal, civil, substantive, procedural, public, private.

(8) Concepts used in criticism of law and its administration, e.g., justice, freedom, equality, morality, naturai law, “the rule of law.”

So much for subject matter. What activities are involved in the “analysis” of this subject matter? Like most cover words, “analysis” suggests more unity than exists. For analysis is not a single activity, but rather a family of related activities. It includes breaking down concepts, differentiating related concepts, correlating and/or unifying related concepts, classifying them in some way, and charting their implications—their “logicai bearings.”²⁸ Perhaps “analysis” is not an ideal word,²⁹ but in the interest of brevity some cover word is essential, and “analysis” seems better than any other.

We should take an example—”justice”³⁰—and, without attempting detailed elaboration, illustrate the general nature of conceptual analysis. After assembling representative examples of uses of “just” and “justice,” an analytical jurist might try to establish that there is only one basic concept embedded in this usage, e.g., the concept of just desert. Thus, he might try to show that a principle embodying this concept—each man shall have his due—in fact accounts for, or “ties together,” the diverse uses we make of the terms “just” and “justice.” Then, too, he might decide that no single principle ties them together, and that usage reflects not one unitary concept of justice but several distinct, though cognate, concepts. Thus, the principle that each man shall have his due may account for some uses, the principle that like cases are to be treated alike may account for others, and the principle that humans are to be treated humanely may account for stili others. If this should be so, our jurist would want to stress that, since each of these principles embodies a different concept, there are distinct, though cognate, concepts of justice. Having identified and differentiated these, our jurist might then consider precisely how they are related—how they are cognate. He might go on to compare and contrast justice with allied concepts of evaluation such as utility. Though much more is involved, enough has been said to illustrate the technique of conceptual analysis. What will be the end result? Presumably a better understanding of some important domain within our conceptual scheme.

Because of vague similarities, conceptual analysis is not uncommonly confused with legai interpretation.³¹ But when the jurist engages in conceptual analysis he is simply not doing the kind of work that the lawyer does when he interprets a statute or some other authoritative text. Although there are many differences, three will suffice for illustration. First, the sources of their problems are very different. The lawyer’s interpretational problem arises because, for example, there is inconsistent usage of the same word in the text, syntactical ambiguity, or evidence of a difference between what the authority intended and the usual meanings of the words used. The conceptual analyst’s problem does not arise in this manner. Instead, it may arise because he is genuinely puzzled or confused about what is involved in the general content of some concept or about how it contrasts with and relates to other concepts. Alternatively, his problem may arise not because he is antecedently puzzled or in a fog, but rather because he simply wants to articulate a clear analysis of something he has set out to investigate.³² Second, the lawyer can almost always frame his issue in terms of a choice between two alternative interpretations each of which he readily grasps and fully understands. This cannot be true of the jurist whose problem arises because of antecedent confusion or puzzlement. Moreover, the jurist’s analysis—his “solution,” if it can be called that—can hardly be described in terms of a choice between alternatives. The complexity of the activities involved in analysis defies such simplicity of description. Third, the lawyer will use techniques in his “analysis” that are hardly appropriate for the analytical jurist. Thus, interpreting a statute, the lawyer can be expected to invoke canons of statutory construction, canons obviously foreig...

Table of contents

• Cover Page
• Half title Page
• Title Page
• Copyright Page
• Contents
• Series Editor’s Preface
• Preface
• Introduction
• 1 The New Analytical Jurists
• 2 How Law is Formal and Why it Matters
• 3 Evaluating and Improving Legai Process-A Plea for ‘Process Values’
• 4 Two Types of Substantative Reasons: The Core of a Theory of Common-Law Justification
• 5 Good Faith in General Contract Law - A Philosophical Approach
• Supplemental Citations
• Name Index