Natives of all sorts and foreigners; men of business and men of pleasure; parlor men and backwoodsmen; farm-hunters and fame-hunters; heiress hunters, gold-hunters, buffalo-hunters, bee-hunters, happiness-hunters, truth-hunters, and still keener hunters after all these hunters … Fine ladies in slippers and mocassined squaws; Northern speculators and Eastern philosophers; English, Irish, Germans, Scotch, Danes … modish young Spanish Creoles, and old-fashioned French Jews; Mormons and papists … In short a piebald parliament, an Anarcharsis Cloots Congress of all kinds of that multiform pilgrim species, man.
Theorising Jurisprudence
Look at the indexes of panoramic Jurisprudence readers for students, such as Freeman and Lloyd’s Introduction to Jurisprudence, and one can identify many of the characters in Herman Melville’s evocation of a dockside crowd. It seems like Babel; small wonder that students are bemused. The aim of this chapter is to give an account of my first concerted attempt to develop a coherent conception of Jurisprudence as a field and as an activity and to examine the ideas of law in context, realism and legal doctrine in relation to this. Most of these ideas were formed while I was contemplating the move from Belfast to Warwick and after my arrival in 1972. My thinking on these issues has developed since then, but the basic ideas were formed in that period.
In the first twenty or so years of my career I was learning and teaching about various pockets of Jurisprudence without thinking much about the nature, scope and point of the field as a whole. I was theorising, but doing it rather than reflecting on it. I accepted Llewellyn’s view of Jurisprudence as dealing with general questions about Law that includes ‘any careful and sustained thinking about any phase of things legal, if the thinking seeks to reach beyond the practical solution of an immediate problem in hand’.2 I quite liked Julius Stone’s rough working classification of the subject matters into three parts for the purposes of presentation, which I now render as Analytical, Normative and Empirical. Even then, I realised that understanding legal phenomena and ideas involves concepts, values and facts and that any rough taxonomy of this vast, ill-defined field was in danger of treating ‘schools’ or ‘isms’ as competing rather than complementary approaches.
My working assumptions about Jurisprudence as a field developed slowly over time. The story can be summarised as follows: I was inspired by Hart’s approach, but was never satisfied with his agenda.3 What I took away from Llewellyn’s course on ‘Law in Our Society’ was a broad view of theorising as an activity in which he emphasised a horse-sense view of Jurisprudence for ‘the hundred thousand’ rather than constructing a rigorous, abstract Philosophy of Law or a Science. What I liked best was the idea that the main aim of such a course was getting students to relate their beliefs and attitudes and working assumptions about law to their views about politics, morality and the cosmos, and to reflect on them critically in moving towards a working whole view of law and life. After that, in teaching Jurisprudence I tried to adopt Llewellyn’s learning objectives, but used careful reading and conversing with original texts (exercises in self-definition) as the main means of achieving this. One’s experiences in Khartoum and Dar es Salaam daily challenged parochial common law assumptions and, over time, some of the mainstream Western assumptions of academic law (Chapter 19), but not to the extent of abandoning either Hart or Llewellyn or my efforts to build bridges between them.4 In Belfast, with a talented, but individualistic, team, in three courses we explored many juristic texts, issues and enclaves without trying to develop one overarching coherent view of the vast field and heritage. Rather I saw it as a house with many mansions or like Melville’s evocation of a dockside crowd, a view that I presented satirically in ‘The Great Juristic Bazaar’.5
Moving from Belfast to Warwick stimulated me to reflect on what mainstream Jurisprudence, and Llewellyn’s particular take on it, might contribute to the Warwick project of ‘broadening the study of law from within’. The outcome was ‘Some Jobs for Jurisprudence’, my inaugural lecture at Warwick.6 It is worth pausing to consider this lecture as it was my first attempt to theorise my view of theory – that is, to think about and articulate my conception of Jurisprudence, the place of Legal Philosophy within it, theorising as an activity and its potential contributions to the health of Law as a discipline, largely anticipating the views set out in Chapter 1.
For my Warwick audience I had several aims: first, to reaffirm my commitment to the Law School’s ethos – in particular, that it was a Law school committed to a broader approach across all legal fields;7 secondly, to emphasise the open-endedness and fluidity of the aspiration to broaden the study of law from within: that it was not committed to any particular ideology (Warwick was perceived as very left-wing) and that we did not seek to replace one orthodoxy by another; rather that we should build bridges with neighbouring social sciences, but still retain links with mainstream Jurisprudence and Legal Philosophy; thirdly, to warn that Law is more participant-oriented than our neighbours in the social sciences and humanities with whom we hoped to establish links; and, finally, that the idea of ‘law in context’ does not involve denying the importance of exposition of doctrine or conceptual analysis.
I also wanted explicitly to address the question: what can Jurisprudence offer to the enterprise of broadening the study of law from within? In the published version this was expressed in terms of five functions of legal theorising: the conduit function,8 high theory, the development of working theories for participants, theories of the middle order (in the Mertonian sense) and the synthesising function.9 I suggested that the last three had been neglected.
This lecture was published over forty years ago. I had not reread it in full for about twenty years. When I did revisit it, it seemed rather a good statement of my present views.10 Today I adopt a global perspective, I place more emphasis on non-state law and legal pluralism and critical examination of the working assumptions and presuppositions of oneself and others; my views on Evidence at the time were rudimentary;11 but the ideas on the roles of theorising, the emphasis on standpoint and participant perspectives, the contrast between English and American reactions to ‘formalism’ and the interpretation of ‘law in context’ could all have been expressed very similarly in 2018. So were my reasons for promoting Law as a potentially great humanistic discipline.12
American Legal Realism (ALR) and law in context
This is a good place to say something about the term ‘law in context’ and its relationship to ALR. It has been applied to the series of that name, to the approach pioneered at Warwick, to a loosely labelled ‘movement’ and to my own general approach. These usages are all connected, but there are nuanced differences of meaning. It is not a field concept like ‘Socio-legal Studies’ or ‘Sociology of Law’ and it is broader than both. Rather it applies to a general approach or perspective in contrast to narrow doctrinal approaches.
We have seen that this term was our third choice of title for the series.13 I rather liked it, largely because it was vague and open-ended, but not meaningless. It would have been foolish of the editors of a book series to give the term more precision. We wanted broader works than traditional, which went beyond purely expository or doctrinal works, but broader in what respects was left open.
As editors we did not have much difficulty in deciding whether a proposal was ‘contextual’ enough, though there were, of course, borderline cases. What we did learn was that authors – and others – interpreted ‘law in context’ in many ways. Some thought that just inserting or tacking on a bit of ‘context’ as a prelude to exposition was enough, but that was not what we intended. During the 1970s and 1980s there was a distinct tendency to equate a contextual approach with policy orientation. Much excellent reformist writing has been contextual, especially since evidence-based policy-making became fashionable. But much contextual work is descriptive, explanatory and interpretive without necessarily being prescriptive. Atiyah’s Accidents, Compensation and the Law was regarded by some as radical, even extreme. But the core of the book was a fresh framework for looking at and contrasting different compensation systems.14 Policy and reform have featured in many books in the series, but not usually as central. For quite a few they are marginal. ‘Law in context’ should not be equated with ‘instrumentalism’ or ‘legal liberalism’; so far as ideology is concerned, both the term and the series are open-ended.
The catchphrase for Warwick’s mission was ‘broadening the study of law from within’. That is a bit more precise than ‘law in context’ and refers to an aim rather than an approach. I am not sure whether it was Geoffrey Wilson or I who coined that phrase. I thought ‘within’ caught Geoffrey’s vision very nicely: Warwick was to be a law school; the staff would be almost entirely legally qualified, though some would have two or more disciplines in one head, and the graduates would get an LLB degree that would be recognised for professional exemption.
Of the three ‘rethinkings discussed in Chapter 12, there is some affinity between the methods used by Atiyah and McAuslan, but Chesterman’s approach was quite different. My strategy for rethinking Evidence, as we shall see (Chapter 14), was different again. I do not like being labelled, but ‘law in context’ is better than most: I advocate thinking in terms of ‘total pictures’, mainly to set a broad context; I think that judicial and other related decisions are best studied in the context of a total process model of litigation and that the approach applies beyond litigation and dispute-processing to all kinds of legal ‘action’. Normally rules need to be interpreted, applied, studied and used with reference to context.15 Whether the relevant ‘context’ is mainly historical, social, political or something else depends on the particular enquiry and its standpoint;16 I am careful not to treat law as context, and to give doctrine its place; for me, ‘law in context’ as an approach challenges the idea that Law is an autonomous discipline or that there are pure forms of legal knowledge; I think that understanding law requires openness to other disciplines, but I am a jurist rather than a philosopher or a social scientist or historian; law is my primary discipline, as it is for most others who claim to use this approach.
In academic law a ‘movement’ is vaguer than a ‘school’ but more specific than a trend.17 The Law in Context Movement has been similar to the American Realist Movement (ALR) in being centred on university law schools, in mainly involving a fresh generation of younger law teachers and in claiming to be in reaction against a dominant orthodoxy. As in America, there were a few individual scholars who had earlier advocated broader approaches to academic law.18 However, in the UK in the 1960s the context and the intellectual climate were quite different from the United States in the heyday of ALR. The post-World War II welfare state, the end of Empire, the rapid expansion of higher education, a tradition of professional formation outside the universities, an academic milieu more hospitable to socialist and Marxist ideas and many other factors made up a contrasting background. Some of the advocates of broader approaches had studied in American law schools, but others, like myself, had returned from teaching in newly independent countries, where they had needed to confront problems of adapting or replacing English law in radically different political, economic and social conditions. It was natural for them to emphasise ‘context’.
Intellectually, there were some significant differences between ALR and British contextual approaches. Both largely defined themselves in terms of a revolt against a caricatured ‘formalism’: in America the prevailing orthodoxy (‘Langdellism’) had been charged with three main weaknesses: a deluded emphasis on deductive logic, over-concentration on higher courts and a lack of empirical concern with the realities of the law in action. This resulted in a divergence between those who wished to develop more sceptical, policy-oriented approaches to case-method teaching and those who wished to develop the study of law as an empirical social science – two different enterprises. In the 1960s and 1970s the English version of ‘formalism’ was also criticised for being out of touch with the ‘law in action’ (both professional legal practice and the operation of law in society); it was also castigated for being narrowly focused, educationally illiberal and politically conservative. On my interpretation, in the UK different diagnoses prompted varied prescriptions: a more humanistic pedagogy, interdisciplinary co-operation, empirical research, progressive law reform and radical social-theoretical critiques.19 If the central plank of legal realism is the importance of focusing on the law in action, the main proposition attributable to contextual approaches is that for most purposes in studying law the study of rules or doctrine alone is not enough.20 What is enough is left open.
The label is vague, but not devoid of content. ‘Law in context’ is not a theory of or about law, nor is it a school or a branch of legal philosophy. It overlaps with ‘realism’ and has a loose historical connection with ALR. What is significant as ‘context’ itself depends on context. For example, in writing about a specific juristic text, the concerns and situation of the author are nearly always relevant; historical and cultural background are often important; the text may belong to some specific literary or scholarly genre; the text may be a contribution to a contemporary debate; and so on. What is significant depends on the enquiry. Contexere (‘to weave’) suggests interdisciplinary perspectives, but ‘law in context’ is broader than that; for example, it includes but goes beyond socio-legal studies which applies mainly to empirical research using social scientific methods.21
The idea of ‘law in context’ is not rooted in a particular or distinctive general theory of or about law. The term can be restricted to state or official law or can be used more broadly. It accommodates positivists and non-positivists, students of legal pluralism and advocates of liberal legal education and of enlightened vocational training. It can accommodate a wide range of political views, although it has a ‘progressive’ tendency. It is not an ‘ism’.22 Such an approach favours thinking in terms of total pictures and total processes, as is illustrated by Atiyah and McAuslan. Similarly, students of civil and criminal procedure set the detailed study of contested trials and appeals in the context of a total process model, emphasising the interrelationship between different stages in the process of litigation, the relative rarity of contested trials and successful appeals and the importance of settlement out of court, plea bargaining and other forms of dispute resolution.23
The Warwick Law School, the Law in Context series and the Sociology of Law have been viewed by some as left-wing. In the 1960s there were feeble jokes equating Sociology with socialism. Maybe there was a general leftward bias: Gil Boehringer, a Marxian (ex-Belfast and Dar es Salaam) was not far off the mark when he identified the ideological assumptions underlying law-in-context practices as ‘Fabian Jurisprudence’, implying that they were vague and contradictory.24 However, ‘law in context’ is not an ideology or a political programme; it merely provides a flexible framework for diverse ways of breaking out from a narrow tradition. Several books in the Law in Context series could be interpreted as having right-wing or feminist or other political tendencies, but a particular political orientation is not a necessary element in a contextual approach. This lack of a clear ideological or political foundation has led to accusations that law in context, socio-legal studies and R/realism are ‘atheoretical’ or ‘apolitical’. This misses the point. For me personally the underlying ideology is a liberal interpretation of the academic ethic. Those who think that the overall purpose of scholarship and education is not to understand the world, but instead to change it, clearly differ from this view, but even they can be accommodated in this broad movement.
During the past forty years ‘law in context’ has been largely absorbed into the mainstream of academic law in the UK and most other common law countries. It has become respectable. Today the most visible signs are in academic legal literature: in 2017 the Law in Context series, now published by Cambridge University Press, had over fifty titles in print, with more than fifty no longer in print; the Journal of Law and Society is well-established and has been joined by Law in Context (Australia), The International Journal of Law in Context (London) and others. ‘Context’ regularly appears in the titles of books and articles. Just because of its widespread acceptance, the central ideas are open to many different interpretations.
I have contrasted ‘law in context’ with ALR because, while there is a historical connection between the two ‘movements’, there are some important differences, not least in the stories and contexts of their development. The next section explains why I have recently emphasised the distinction between ALR as a historical phenomenon and ‘legal realism’ as a jurisprudential concept which, in order to elucidate it, needs to be detached from its historical and its purely American associations.
Realism and realism: taking realism seriously in legal theory
In my early writings I followed convention in treating ALR as a historical phenomenon identified with a few scattered individuals at a particular period in the story of elite American law schools. From the start I criticised attempts to reduce their ideas to a single ‘ism’, ignoring the diverse and quite original contributions of individuals.25 I contested the suggestion that ALR only dealt with adjudicative decisions on questions of law in hard cases, but acknowledged that the bulk of subsequent interpretations and debates focused mainly on that peculiarly American preoccupation. In retrospect it seems not very surprising that in England ALR was not taken seriously as a contribution to Jurisprudence: C. K. Allen mocked it as ‘Jazz Jurisprudence’,26 Hart misleadingly dismissed Realists as believing that ‘talk of rules is a myth’;27 and not much attention was paid to issues such as whether the leaders of critical legal studies were the true heirs of ALR.28 From the 1980s ALR faded away from many Jurisprudence reading-lists in UK; probably less so in the United States because it was widely regarded as the most distinctively American kind of Jurisprudence. It was recognised that ALR had been influential on the culture of American law schools and they are acknowledged as forerunners of the Law and Society Movement, Socio-legal Studies and other empirical approaches especially in the United States. But, as Schlegel has argued, Llewellyn was probably the only professed member of the Movement who developed Realist ideas as a form of Jurisprudence.
Recently there has been a revival of interest in ALR in the United States by selective and charitable reading of a few texts. Brian Leiter advanced an interesting reconstruction of ALR, linked to naturalism in Philosophy, interpreting it as a basis for a philosophically defensible position centred on ‘the core thesis’ that ‘judges respond primarily to the stimulus of facts’.29 Hanoch Dagan, a US-oriented Israeli, published an excellent book Reconstructing American Legal Realism and Rethinking Private Law Theory (2013). I have commented on both in detail elsewhere.30 Here they are mainly interesting for trying to revive the idea of ALR as a kind of Jurisprudence. But, in my view, by using the historical ALR as their starting point they have undermined the significance of their respective theses.
Another significant development is the rise of a New Legal Realism (NLR), spearheaded by several scholars at Wisconsin, including Stewart Macaulay and Elizabeth Mertz, and now firmly established as a movement centred on an important journal, Empirical Legal Studies. NLR is presented by its leaders as primarily an activist movement concerned ‘to integrate empirical legal studies in concrete ways into academic legal practice, especially law teaching and legal scholarship’. It is out to change what academic lawyers do and to foster empirical legal approaches rather than make any sustained contribution to Jurisprudence. It is admirably lively and varied and so difficult to generalise about. Wisely it has distanced itself from ALR: it is not confined to adjudication; it has expressed a tentative interest in ‘globalisation’ but so far from an almost entirely American viewpoint; it could be interpreted as a resurgence of the ‘scientific’ ALR wing, but without being puristic about methodology.31 It is a welcome addition and stimulus to empirical legal studies.
What does it mean to be realistic about law and why is the idea important?
Stimulated by these American developments and in preparing the ‘Afterword’ for KLRM, I have begun rethinking the idea of legal realism as a juristic concept. What does it mean to be, or aspire to be, ‘realistic’ about law? Some of my recent writings have tried to address this question head-on at the level of theory, formulating the central idea as a single proposition:
That knowledge and understanding of empirical dimensions of law and justice are relevant to (weak), an integral part of (moderate) necessary/essential (strong) to understanding law and legal phenomena.
This is a precept about appropriate perspectives for studying and talking about law, but on its own it is not a distinctive theory of law. It prescribes an important or necessary, but not a sufficient, condition for understanding law. Insofar as it offers some strong challenges to various kinds of legal dogmatics this version of realism demands attention.
Let us return to the epiphanic moment in 1955 when I felt that I had been betrayed by my favourite undergraduate textbook, Salmond on Torts (see above, Chapter 3). My complaint was not that it was merely incomplete or misleading but that it had led me to seriously misunderstand the law of negligence and personal injury claims. It had given me a false picture. It presented just decontextualised doctrine, only marginally relevant to the outcomes of claims and disputes in this area. Generalised, this claim is that doctrine on its own cannot be understood.32 We can treat that as an example of strong realism.
First, the idea of ‘legal realism’ needs to be detached from its American roots. Concern about the realities of the law in action was never an American exclusive. This kind of ‘realism’ is not confined to the United States, nor is it focused mainly on adjudication, let alone appellate adjudication on questions of law. For most non-American jurists, legislation, regulation, compliance, enforcement and attitudes to law are as important an aspect of understanding law as high-level adjudication.
Secondly, even strong legal realism does not involve a denial of the importance of doctrine, nor of the possibility of clear or routine cases, nor of an internally consistent or coherent justificatory theory of Torts doctrine.33 At a general level, it can provide a basis for criticising the dominance of doctrinalism within Western traditions of academic law; it challenges claims to exclusivity or self-sufficiency of strong versions of ‘legal dogmatics’ or ‘legal science’; and it raises questions about what is involved in understanding a legal rule or principle or a doctrinal ‘system’. But it is not inconsistent for a realist to accept that knowledge and understanding of legal doctrine is also a necessary but not a sufficient condition of understanding law and legal phenomena.
Thirdly, in this view legal realism is not a legal theory, nor a method, nor an approach, nor does it presuppose any particular concept of law. It only prescribes an important or necessary condition for understanding legal phenomena and ideas. It does suggest that any theory or view of, or approach to, law which ignores this prescription is probably defective. The claim that the law in action and context are important or necessary as part of understanding law does not necessarily imply a particular epistemology, even for non-cognitivists. In short, a plea for realism is a plea for focus on what actually happens in addition to what is meant to happen in the law in action and much else besides.34
Fourthly, focus on what? The idea of ‘realism’ is associated with a number of phrases, such as the law in action, how law works, the contrast between aspiration and reality, and between appearance and reality. Clearly the concept is both vague and philosophically problematic. But the idea of realism in law catches a central truth: in order to understand law, the study of doctrine alone is not enough. In other words, one has to be concerned with social facts, context, consequences and what actually happens in the ‘real world’.
Fifthly, this formulation deliberately leaves open deep philosophical questions about ‘reality’, ‘understanding’ and ‘legal knowledge’. This is the deliberately question-begging move. My personal view is that sensible answers to that kind of question depend on the context and conditions of a particular enquiry. Historically, it may have been a matter of chance that Llewellyn and Frank chose the word ‘Realism’ and ‘Realistic’, probably to differentiate the new movement from Pound’s version of Sociological Jurisprudence. Fortunately, except for some necessary differentiations between American and Scandinavian brands, little attention has been focused on the concepts of reality/realism/the real.35 We have not taken the label too seriously. Otherwise we might have been plunged into an abyss of metaphysics and epistemology about unreality, irrealism, magic realism, multiple realities, virtual reality and so on. Like Pontius Pilate, on the whole we have not stayed for an answer.
If we interpret a concern with being realistic about law in terms of some version of philosophical or social realism or naturalism, we are in trouble. However, a simple way round this morass is to beg these abstract questions until one has settled on a single proposition as a starting-point such as the one set out above. In this formulation the idea of realism leaves open questions about the nature of ‘reality’. Here ‘realism’ is about focus not about epistemological aspects of what constitutes understanding law. I suggest that this ‘ism’ can be rendered as a necessary, but not on its own a sufficient, element of understanding law in general terms.
In this context ‘weak legal realism’ amounts to not much more than the assertion that Empirical Legal Studies are an important part of the study of Law at a general level.36 ‘Moderate legal realism’ is critical of generally narrow approaches and of ‘pure’ or exclusive doctrinal studies, or their dominance, but acknowledges that in some contexts propositions of law and even chunks of doctrine may be comprehensible and adequate for particular purposes, for example, summarising the law as it is at the moment in a routine case.
Weak and moderate versions of realism are likely to be acceptable to most legal scholars in the common law tradition, possibly less so in purer or more exclusive enclaves of civil law traditions. ‘Strong legal realism’ is obviously more interesting theoretically. For this amounts to the proposition rules can only be ever understood ‘in context’. This can be interpreted in several ways.
We have seen in discussing ‘rule scepticism’ that some believe that rules are fictions, or phantoms or not real.37 I personally believe that rules are as real as beliefs or models or words, unlike ghosts or unicorns.38 We can make, break, observe or otherwise experience them. But I agree that there are many difficult philosophical problems about their nature, taxonomy and under what conditions it is true to say that a rule exists. Similarly, I reject the idea of radical indeterminacy in respect of all social and legal rules, but I think that some of the kinds of scepticism in this area deserve to be taken seriously.39
Another kind of scepticism was, perhaps surprisingly, expressed by Ronald Dworkin, who emphasised that ‘the idea of law as a set of discrete standards, which we might in principle individuate and count, seems to me a scholastic fiction’.40 A similar idea is that all rules belong to a larger system or code or agglomeration which, in turn, may be hard or impossible to individuate as a discrete entity or unit.
Another different idea, is that no rule or body of rules can be understood independently of a broader context or sphere. Denis Galligan develops this interestingly in relation to the concept of ‘social spheres’ – that is, ‘an area of activity in which participants share understandings and conventions about the activity, and which influence and guide the way they engage in the activity’.41 He contrasts lecturing (which is loosely constrained) with the practice of psychiatry, which is more dense, ‘with density expressing the relative power of social spheres in influencing their members’.42
A strong realist would emphasise such difficulties. Indeed, these examples are significant warnings about being over-confident about the existence, scope or rationale of rules without reference to ‘context’ in its many forms. I shall not pursue these hares here, but I shall touch on them again when considering the need for more sophisticated theorising about social norms (Chapter 20). Moderate realism suffices for my immediate purpose, which is to underline the challenges it poses to the doctrinal tradition, as I interpret it. In particular, the propositions that for most purposes of understanding law (i) the study of rules alone is not enough and (ii) that assuming that the concept of law should be restricted to rules or norms is subversive of that enterprise.
On a strong version of the realist thesis one cannot understand any legal phenomena if one does not take into account how they operate in fact.43 It suggests that one cannot understand the law of Negligence if you ignore insurance, negotiated settlements, and the damages lottery, as Patrick Atiyah demonstrated. Doctrine without some reference to its context and operation is unreal; but realism about law has to include doctrine. They need each other.44
Conversely, even strong and moderate realism are consistent with the idea that doctrine is also important: it too is generally a necessary, but not a sufficient, element of understanding law and legal phenomena. The relationship between this view of realism and doctrinalism is not simple. For example, a strong or moderate realist will reject the idea that legal dogmatics or legal science constitutes an autonomous discipline;45 she will challenge the overall dominance of the doctrinal tradition within the discipline of law; some realists will reject the idea that law consists only of rules or doctrine and will emphasise the importance of institutions, processes, personnel and legal technology as part of understanding law in addition to rules and norms; and there is room for differences and disagreements about whether concepts such as officials, institutions or legal techniques can be elucidated without reference to rules or norms.
As interpreted here, even moderate realism has a contribution to make to Jurisprudence, not as a theory of or about law, nor as a rounded philosophy of law, nor as a rival or subverter of analytic, idealist or doctrinal approaches, but rather as one integral part of understanding law. In this view, legal realism is best treated as a hedgehog concept, that is that it stands for one Big Idea – the importance of the empirical dimensions of law and justice as part of understanding law. Once that proposition is accepted, the gates open to all of the foxy diversity, controversy, differing traditions and dilemmas and problems within empirical legal studies.
Doctrine
A central theme of my approach to understanding law has been that strong versions of the doctrinal tradition are too narrow, impoverished and abstracted from ‘real life’. I have argued that in most contexts the study of rules alone is not enough; I have railed against blackletter textbooks; the Law in Context series was set up as a series of ‘counter-textbooks’; I accept labels such as ‘contextual’ and ‘realist’, provided these labels are not treated as indicating a distinct ‘theory of law’; and some of my writings about the ‘expository orthodoxy’ have been quite polemical. So it is not surprising that I should be perceived as an opponent of formalism and of doctrinal approaches. That is a mistake.
I shall argue here that as a critic of the expository or doctrinal tradition, I am a moderate. I have never been a rule-sceptic; I believe that rules and doctrine are a central part of understanding law; that doctrine and context are complementary; rather, one of my main concerns has been to build bridges between two traditions that have strayed apart. In short, my role is rather like Hans Sachs in Die Maestersinger (less the nationalism); I want my discipline to break free from a constricted tradition but not to jettison it.
In 1958 Herbert Hart launched a sharp critique of Dias and Hughes’s textbook on Jurisprudence (1957).46 Apart from some detailed criticisms, his main targets were the assumption that Jurisprudence is a subject susceptible to textbook treatment and that learning potted summaries of what other people had said rather than engaging directly with important issues and original texts was educationally deplorable. I was encouraged by this critique and, in 1966, in a memorandum for the Law in Context series I indulged in some youthful rhetoric against blackletter textbooks:
As educational tools textbooks fly in the face of some of the fundamental values of university education and at the same time they are primitive as means of training effective practitioners; as works of scholarship they may be accurate but are rarely exhaustive; they are rarely sufficiently comprehensive to be efficient as works of reference; as works of intellect they are with [few] exceptions unimaginative; they have no pretensions to be works of art.47
The Law in Context series provided in an open-ended way a constructive alternative to the expository tradition without substituting one orthodoxy for another. In 1971 I returned to the fray. While commenting on the third edition of Dias on Jurisprudence, I extended Hart’s critique to all textbooks, arguing that ‘the textbook style, for any legal subject, is difficult to reconcile with the values of legal education’.48 The core of these critiques was educational, an attack on rote learning in legal studies.
My article was quite strongly criticised in his Presidential address to the Society of Public Teachers of Law by Professor T. B. Smith of Edinburgh, who defended the expository tradition, using the great Scottish institutional writers, such as Stair, Kames and Erskine, as exemplars.49 They took on whole systems of Private Law and Criminal Law in a way that was systematic, critical and designed to last.
I replied, reinforcing my criticisms of the English expository tradition mainly on educational grounds.50 Of course, here Smith and I were at cross-purposes. A noted Scottish nationalist, he was drawing attention to leading expositors as great scholars who systematised Scots law. These treatises were significantly different from the genre of books that I was attacking and Smith was reminding us of the superiority of the Scottish tradition.51 However, the two genres shared one feature: both were almost exclusively concerned with doctrine and, as a ‘realist’ and ‘contextualist’, I was arguing against that.
Over the past fifty years or so there has been an understandable tendency to contrast Socio-legal Studies, Sociology of Law and ‘law in context’ (three overlapping concepts)52 with ‘blackletter approaches’ or ‘doctrinal formalism’. Like American Legal Realism, law in context and Socio-legal Studies have sometimes been depicted as a reaction against formalism. Such polemics have often descended into caricature and selective critique.
In order to disentangle some important issues, it is useful to give a careful account of ‘doctrine’ and to differentiate it from ‘law as rules’ conceptions of law. If doctrine is equated with ‘school rules’ approaches or classic blackletter law, it offers targets that are too soft. Most leading expositors have assumed more refined conceptions of doctrine than the mere reporting or description of categorical precepts. Fortunately two respected jurists have provided richer interpretations.
In setting up a crude distinction between the ‘doctrinal concept’ and ‘the sociological concept’ of law,53 Ronald Dworkin usefully included principles, concepts and distinctions in addition to rules in his idea of doctrine. This concept allows for forms of exposition that are rigorous and sophisticated. Dworkin explicitly denied that doctrine consists of rules and principles. Rather, his is a picture of propositions of law linked to their underlying rationales.54 This suggests a more robust version of the tradition against which R/realism has reacted than ‘law is rules’ conceptions and labels such as formalism, legal dogmatics, blackletter law, the expository orthodoxy and the textbook tradition. Some clear weaknesses within the doctrinal tradition can be identified, which are not necessary parts of that tradition: the deductive model of legal reasoning; the slot-machine image of adjudication (mechanical jurisprudence); strong versions of the idea that exposition of doctrine can be ‘scientific’; insistence on the study of doctrine as an autonomous discipline, purified of all non-legal elements; and the dominance of the expository tradition as the only worthwhile perspective and approach to understanding law. Here my concern is to integrate the best elements of doctrinal analysis with empirical and normative approaches as a more promising path to understanding legal phenomena and ideas.
Andrew Halpin has suggested an even ‘richer notion’ of legal doctrine that includes not only rule-formulations, but also principles, differentiated conceptions of interpretive roles and informed conceptions of the nature of legal materials, all of which are normally ‘beneath the surface’.55 This extension of the constituents of ‘doctrine’ captures the best practices of the leading treatise writers, especially in the American tradition, such as Story, Wigmore, Corbin, Gray and Scottish institutional writers.56
Insofar as accounts of doctrine approximate to Dworkin’s or Halpin’s conceptions, I accept that it is an essential part of understanding law. The best expositors set their interpretations of specific rules in the context of complex webs of concepts, distinctions, principles, rules and reasons. Many leading expositors in the common law tradition have in fact been successful practitioners with at least tacit knowledge of legal practices and sophisticated, though usually unstated, views on judicial roles and other relevant matters. This has prevented them from becoming too abstracted from local legal practice and ‘the law in action’. In short, they were often implicit realists. Gray, Holmes and Corbin, all leading expositors, have also been recognised as predecessors of American Legal Realism. Such examples of links between doctrinalism and realistic perspectives supports the view that they can be complementary rather than rivals.57
The common law has not been receptive to strict ideas of ‘legal science’ and purer forms of exposition. There are several reasons for this: if one accepts the view of the development of common law as a form of custom mediated through practitioners and judges, even the systematisers like Blackstone and Coke did not really have a clear conception of system building; the importance of legislation as a source of law, allied to a strong tradition of legal positivism and an antipathy to natural law, meant that the predominant cast of mind was pragmatic and particularistic.
A clearer form of an ideal type of classical doctrinal exposition is to be found in the civilian tradition. For example, a recent article sets out to explain why socio-legal studies have achieved little recognition in French universities:58
Law faculties in France remain dominated by doctrinal analysis … [a] traditional notion of ‘fundamental legal science that has its specific purpose of the systemization of norms’ was in the charge of jurists rather than judges or legislators; and a distinct, autonomous legal science was supported by a centralised state framework for universities ‘guaranteeing the institutional reproduction of disciplines within the university system.’ Doctrinal scholarship is imagined as analogous to architecture rather than mere description. Empirical approaches were excluded from this tradition and socio-legal studies have not been recognised as a distinct field. Scholarly discourse on law has been clearly distinct from that of social science.
Most empirical legal research in France has taken place outside the law faculties.59
The common law may have had a debased or impure form of doctrinalism; or perhaps that is its strength. However, the English expository tradition is still perceived by its critics as ‘formalistic’. Like other ‘isms’, ‘formalism’ is a crude term with many shades of meaning. For example, American Legal Realism has been interpreted as part of a broader ‘revolt against formalism’, exemplified by John Dewey in philosophy, Charles Beard in history, Thorstein Veblen in economics and Oliver Wendell Holmes in law. As Morton White explained, all of these figures ‘were eager to come to grips with life, experience, process, growth, context, function’.60 They reacted against over-emphasis on abstract logic, mathematics and ‘scientism’ in their respective disciplines. This is quite an illuminating way of setting American Legal Realism in the context of broader trends in the history of American thought. Unfortunately, ‘formalism’ is sometimes used as a vague general term of abuse. Recent scholarship by Summers, Tamanaha and others has shown that dismissing the predecessors of Legal Realism as ‘formalists’ involves caricature and over-simplification of history; that there were many strands of ‘formalism’; and that formality in law can serve important functions that are worth preserving. For example, rituals and standard forms are important legal phenomena.61
If the tone of my early critiques of the expository orthodoxy was polemical, my views were always quite moderate. I have never held that doctrine is unimportant. I have not been sceptical about the existence or importance of rules and principles nor have I subscribed to strong versions of indeterminacy in regard to interpretation of doctrine or rules.62 The ‘law’ in the term ‘law in context’ includes doctrine, but it also includes institutions, processes, structures, practices, personnel and craft traditions. It is sometimes reasonable to interpret ‘context’ as referring to any factors outside doctrine, although it is often unwise to draw a sharp distinction between law and context.
What are my main objections to the sophisticated ideal type of doctrinal formalism? First, I reject strong versions of autonomous disciplines. I do not think that understanding law can be advanced within the confines of a closed discipline. Law as a discipline is partly institutionalised in university law schools, but legal research, invention and education are not confined to them. For example, many judges and practitioners are genuine scholars. Other institutionalised disciplines contribute directly or indirectly to the enterprise of understanding legal phenomena and ideas. Law schools may have distinctive cultures, but not autonomous epistemologies.
A second objection is that sometimes, as is reported of French Law faculties today and which I frequently encountered in my career, adherents to the doctrinal tradition want to keep exposition of doctrine pure and exclusive. ‘That’s sociology, not law’ was a common mantra of rejection of broader approaches. In the early years of the Law in Context series there were reports that some law librarians refused to order some titles in the series because they were not law books. Often exclusivity has been maintained in practice, without specific reference to other approaches. Blackletter texts survive. The central message of realism is that doctrine cannot be self-contained, treated in isolation as a thing in itself and for most practical and theoretical purposes the study of doctrine alone is not enough.
A third objection is that ‘scientific’ doctrinalism is hard to reconcile with legislation, regulation and modern styles of governance. Even in code countries, law-making tends to be reactive, ad hoc, messy, fragmented and particularistic. There is room for tidying up the statute book and the never-ending search for principle and for continual attempts to make statute law more systematic. However, Karl Llewellyn reported one German ‘legal scientist’ lamenting that the legislature could repeal his whole system, his life-work, overnight. That sounds like building sand castles at low tide.
The basic realist objection is against the dominance of, or an exclusive emphasis on, doctrinal studies, not on doctrinal studies as such. This dominance and the tendency to exclusivity have pervaded Western systems of academic law for at least two centuries. Doctrine is necessary, but not sufficient, for understanding law. This insufficiency is not merely incompleteness; it often involves distortion, as is illustrated by my complaint against Salmond (see above, Chapter 3).
Ironically, Hans Kelsen is viewed as the prime exemplar of ‘formalism’, yet his pure theory specified that legal knowledge could only be of formal structures of norms cleansed of all impurities. Moreover, Kelsen can be used to undermine any claim to purity or science by expositors, because impurities inevitably enter as soon as substantive rules of law are articulated. In short, Kelsen’s ‘pure theory’ is about form and structure, not substance, and so does not provide a theoretical basis for ‘scientific’ or ‘pure’ exposition of the content of legal norms.63
In many common law jurisdictions, the doctrinal tradition is no longer as dominant as it was. For example, in 2004 Fiona Cownie reported that a majority of English academic lawyers that she interviewed claimed to favour law in context.64 Some of this may be lip-service, but contextual approaches have become part of the mainstream. Nevertheless, only a small part of the practices in the doctrinal traditions satisfy the rich conceptions of what is involved by Dworkin or Halpin. Even these exclude too much.
What is perhaps less apparent, but very significant, is how dominant the idea of law as doctrine or rules is among our canonical theorists. Almost all mainstream jurists of the nineteenth and twentieth centuries have been doctrinal theorists, advancing conceptions and theories of law that conceptualise law in terms of rules, principles and formal normative structures. Kelsen, Hart, Dworkin, Finnis and Raz are prime examples of jurists rooted in the doctrinal tradition. Debates between positivists and anti-positivists are mainly within that tradition. Whether intentionally or not, they have given theoretical respectability to a set of constricted and unrealistic practices.
One of my objections to the practices of most Analytical Legal Philosophers has been that they pay too little attention to non-doctrinal concepts – to those of talk about law as well as law talk (i.e. doctrine).65 Even the leaders of the critical legal studies movement, such as Duncan Kennedy, focused on ‘liberal legalism’ as their main target, captured mainstream courses like Contract, and were uninterested or disdainful of more empirical approaches. Some student works on Jurisprudence range quite widely, but the jurists who are treated as mainstream nearly all fit within the doctrinal tradition.
For a time, I interpreted Hart’s famous claim that The Concept of Law was ‘an essay in descriptive sociology’ as offering an ‘olive branch’ to the emerging field of socio-legal studies.66 Of course, Hart was not doing Sociology, but making the point that sociologists (and other empirical scholars) need concepts as part of their enterprise of describing, explaining and interpreting social facts. Later Nicola Lacey, an eloquent ally in the cause of building bridges between Analytical Jurisprudence and Empirical Legal Studies, persuaded me that Hart shared Oxonian disdain for Sociology and really believed that armchair conceptual analysis could proceed independently of involvement with social reality.67 His failure and that of his followers to analyse concepts such as institution, dispute, function, profession and lawyer partly followed from the view that these were not relevant to a Legal Philosophy which has been conceived in terms of doctrine.
