The Jurisprudence of Difference: Writing Law's Others

2011

2009

Law and Philosophy, 1986

This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the 'time-free' conceptual staples of modern jurisprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of 'tradition', the traditionality of law is inescapable. Legal philosophers disagree about many things, few more than the nature of law. Notwithstanding these differences, there are significant family resemblances among contemporary approaches to this question. I am struck by three. First, it is common for law to be conceived as a species of some other more pervasive social phenomenon: commands, norms, rules, rules-and-principles, rules, principles and policies, and so on. Though this runs * This article is part of a project on law and tradition, research for which has been aided by a grant from the Australian Research Grants Committee. It was written while I was a visitor at the Centre for the Study of Law and Society, University of California, Berkeley, and revised while I visited the Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh. I am grateful to the members of both centres for generously providing me with extremely congenial and stimulating conditions for work. Versions of the paper were presented to seminars at these centres, to the 12th World Congress on Philosophy of Law and Social Philosophy, held in Athens in August, 1985, and to seminars at the universities of Warsaw, Lodz and Glasgow. I am grateful to participants in these seminars, especially Neil MacCormick, Philip Selznick, Wojciech Lamentowicz, Daniel Sinclair and Jerzy Szacki, and' to Edward Shils for useful discussion and criticism.

In 2015 the 800th anniversary of the promulgation of Magna Carta was celebrated Amongst the great number of initiatives for this event, Professor Mark Hill QC and the Reverend Robin Griffith-Jones have edited an interesting book, which gives a detailed account about the origins of Magna Carta, the social and political context of the time, and the religious background which forms the very foundation of the main principles of the Charter. As neither an historian of law, nor a specialist in public law, nor an expert in the field of law and religion, my essay discusses some aspects of the “global legacy of the common law”, whose origins, to my understanding, are closely interconnected with Magna Carta. First, I will depart from the assumption that one of the most important aspects of Magna Carta is the idea of law as a limit of the sovereign’s power. In reality, this concept was not new, nor was it peculiar to English law, as it had been developed on the Continent by the efforts of medieval jurists, but it was fixed in ‘black letters’ in Magna Carta at the end of a difficult period of controversies and it can be said that it is at the origin of the doctrine of the Rule of aw. Second, I will consider the process of codification of law taking place on the Continent between the end of the XVIII and the beginning of the XIX century and in particular the idea of Rechtsstaat, shaped on different basis than the conception of the Rule of Law in English law, which flows from the Magna Carta and continues to characterize, at various degrees, the common law legal mentality. Third, I will concentrate on the main legacies of the conception of law which underlies the doctrine of Rule of Law, focusing on some features which still connote the common law tradition as opposed to the civil law tradition: the idea of the primacy of the unwritten law over statutory law and the unity of jurisdiction; the attitude of judges towards the interpretation of statutes; the circulation of precedents in a vibrant legal tradition. At the end, I will draw some conclusions.

Ratio Juris, 1988

The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge-made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of "communities of interpretation" is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.** Law, I have been arguing, is a tradition (Krygier 1986a; Krygier 1986b; Krygier 1987,34-37). That is a more consequential claim than it might seem and I mean it literally. That is not to say that law is only a tradition. It is to stress, however, the pervasiveness and fundamental importance of traditionality in law, My thesis is not merelywhat everyone knowsthat law includes traditions, along with rules, principles, maxims and so on. Legal systems should be understood as traditions, albeit highly complex ones. Nor am I saying merely that the orderings of small "traditional" societies, or self-consciously traditional legal systems, such as Talmudic, Islamic or seventeenth century English law, are traditional. Modern "positivist" ones are too. Finally and in this article, I speak * This article is part of a project on law and tradition, for which I have received grants from the Australian Research Grants Committee. I am grateful for that support and to my research assistant, Montserrat Gorina Ysern, whose work it has underwritten. An earlier version was read to a work-in-progress seminar of the Australian Society of Legal Philosophy and I thank the participants in that seminar for their useful comments, and Arthur Glass, David Neal and Philip Pettit for their helpful written remarks.

Some societies seem lushly provided with explicit rules, others seem almost consciously to avoid them, and still others never found a use for them. There must always be rules of some kind, if only of language-use. Explicit rules, however, are of a different status. Usually prescriptive rules of the kind spelt out in law are analysed for what they do—for their practical ‘force’ or ‘weight’—but it seems worth asking what they say, in other words viewing them in terms of classification. Their form is also of interest. If any rule might, as Frederick Schauer contends, be rephrased as a conditional sentence, most laws have been phrased that way. The chapter discusses early European codes and pre-modern Yemen, then sketches cases of learned or complex legalism, before asking what the attraction of explicit rules might be. In comparative perspective, the ‘central case’ of latter-day municipal law looks decidedly odd.

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

California Law Review, 2000

Social Science Research Network, 2003

When it is said that law represents the rule of reason, it is appropriate to ask what kind of reason is meant. 1 Custom and reason, we learned in part I of this article, were the organizing concepts of the classical understanding of common law, and because they were central, they were also much contested. We also learned that these notions were regarded as interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. One especially important understanding of the interdependence of these notions emerged at the end of our discussion in part I. The reason of the law, it was said, was the 'artificial reason' of the trained common lawyer. Lon Fuller, one of the most important champions of common law jurisprudence in the 20th century, advised us in the epigraph above to take a close look at any claim to associate law with the rule of reason, however ancient or venerable it is. The task of part II of the article is to explore 17th century views of the nature of this 'artificial reason' and more generally its account of the normative foundations of common law. A ARTIFICIAL REASON [H]is Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law … 2 Coke famously wrote, 'the common law itself is nothing else but reason', but rushed to add that by this he meant 'an artificial perfection of reason gotten by long study, observation, and experience, and not of every man's natural   Oxford University Commonwealth Law Journal 1 * Cary C Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill. 1 L Fuller Anatomy of Law (Greenwood Press Westport 1968) 5. 2 Prohibitions del Roy (1607) in E Coke The Reports of Sir Edward Coke, in Thirteen Parts (J Moore Dublin 1793) 12th Report 63, 65. Note, I have altered the spelling and capitalization in quotations from 17th century works to conform to modern standards. In what follows I will continue to do so silently unless there is risk of altering or obscuring the meaning of the quotation. 2 Classical Common Law Jurisprudence (Part II)      3 E Coke First Part of the Institutes of the Lawes of England (Garland New York 1979) 97b (originally published in 1628). See also Coke (n 2).

Theoretical Inquiries in Law, 2009

The argument of this Article is based on positivist postulates (principally from Hart) defining law as the union of primary rules (social norms) and secondary rules (of recognition, change and adjudication). Taking the presence of rules of change to be decisive for the appearance of legal orders, the author first looks for their origins in the Western world. Romans were the first, in the Western world, to develop a legal system with a clear rule of change, the possibility of a new statute abrogating an old one. This Western concept of law has been exported by Western colonialism to America, Asia (especially India), and Africa, transforming social (and customary) rules into laws thanks to the use of a Roman frame. While Jewish, Chinese and Islamic legal systems also fit this definition, their rules of change were not identical to the Roman ones (because of their stress on interpretation rather than direct change). However, these other systems were not as successful as Roman law, which was linked historically with imperialism and colonialism.