Introduction
This book has been a narrative of the development of my thoughts and the contexts of my various writings – contributions to the ever-moving bookshelf. Like Collingwood I do not anticipate writing much more, but unlike him I feel that I have had my say. So rather than finish with a grand finale, this chapter touches on a productive and enjoyable retirement, points to some unfinished agendas or business and clarifies some of my latest views.
Retirement, retirement, ‘retirement’, ‘Retirement’, ‘R/retirement’ – there are many distinctions within a process that is not unilinear. What the bureaucrats call ‘human resources’ may have recorded me as having Retired three or four times. After 1989 I was paid officially half-time, received a niggardly pension, but worked full-time. Later in Miami, from the late 1990s until 2011, I regularly taught a full load (a course and a seminar) from January to April (the spring – a Montesquieuite choice). For this I was paid quite well. In fact, ‘R/retiring’ was a slow process of disengaging from administration, academic politics, public performances and teaching. The result was that I wrote more, but at a measured pace.
‘I am going to Madagascar in November’, I remarked to a colleague early on in this process. He reacted with shock: ‘November?’ he asked, without mentioning Madagascar. From then on, I realised that I could control my own agenda, although still susceptible to deadlines and other commitments. Twice I gave myself a sabbatical from ‘R/retirement’: no deadlines for six months. It required careful planning, but it was a liberation and a revelation. I had time to read and to have leisurely conversations. No report was required at the end. I began to offer free advice to ‘kids’ of 60, then 70, as a ‘R/retirement’ counsellor: for example, if you want to avoid having to write obituaries and to contribute to festschrifts, die young.
In my fifties I thought that I would officially retire at 65 and that any years I would survive beyond 70 should be regarded as bonus. Recently, looking back I realised that since having shed nearly all of my institutional commitments, I had written almost as much as in the whole of the rest of my career. Several of these are among my most substantial writings; some are my last words on a subject. A bonus. As Holmes suggests, old age is a good time for jurists.
The process of disengagement was gradual, but September 1999 provides a convenient marker: on my sixty-fifth birthday I was just starting a year’s sabbatical at the Center for Advanced Behavioral Studies at Stanford, the social scientists’ Nirvana. One philosopher, one novelist and myself (the only jurist) were the outsiders among forty-five Fellows, mainly behavioural scientists, with a leavening of anthropologists and historians. In addition to getting on with our own work, almost our only duty was to mingle with the other Fellows, which I did with pleasure and ethnographic interest.1 Some of the social scientists had difficulty with disengaging from supervising graduate students and preparing grant applications. The three soloists were free from these burdens. The result was a delightful and very productive academic year, exploring California, making friends, conversing and reading as much as writing. This year was a watershed in two main ways: I became immersed in interdisciplinarity and I began to think more expansively.
In the late 1950s Trevor Rutter had said that I would become an essayist rather than a novelist or a scholar-statesman.2 He was right. Early on I recognised that I had no talent for fiction, despite an aptitude for embellishing true anecdotes. By 1999 I had published or nearly completed four collections of essays: Rethinking Evidence, subtitled Exploratory Essays (1st edn, 1990); Law In Context, subtitled Enlarging a Discipline (1997); The Great Juristic Bazaar, subtitled Jurists’ Texts and Lawyers’ Stories (2002); and Globalisation and Legal Theory (2000), which could also be interpreted as a book of exploratory essays. Even Karl Llewellyn and the Realist Movement can be read as a series of studies of selected texts put in the context of Llewellyn’s career, prefaced by a narrative story of the development of three East Coast law schools: Harvard, Columbia and Yale.
Since 1999, most of my work has centred on four main themes: Evidence as a multidisciplinary field, Legal Education, Globalisation and Law and General Jurisprudence. I have already dealt with the main works in earlier chapters.3 Here I shall concentrate on some unfinished business and try briefly to clarify my latest general positions or postures. I shall finish by suggesting some ways in which Jurisprudence, as I conceive it, can help our discipline and its constituent sub-disciplines to adjust to accelerating globalisation and come nearer to fulfilling its potential as a central part of the humanities and social sciences.
Unfinished business
There is no end to scholarship and thinking. Like most scholars I have abandoned projects, unfinished business and some twinkles in the eye, including lines of enquiry that only others could carry out. My list of these is shorter and less intellectually ambitious than Collingwood’s. An Autobiography was published in 1939 when he was 50. He realistically expected to die young and he set out his extraordinary unfinished agenda. He in fact died aged 53. Some of his most important works were published posthumously. I am 84, I expect to die old, and my own unfinished agenda is more modest. I have already touched on some aspects of these in Chapters 10 and 14. Recently I have revived a project on law in multilingual societies that I failed to get off the ground in the 1980s and which I hope will begin again at Warwick with the more focused title of ‘Linguistic Diversity and Social Injustice’;4 plans are developing for follow-up activities on Human Rights: Southern Voices, also at Warwick;5 I have continued to pursue my life-long interest in archives by involvement in an ongoing project on Legal Records at Risk6 and some family archives, but this is more an avocation and a hobby.7 Some others are less noteworthy,8 but there are three that may be of more general interest that I shall deal with briefly. The first is a sequel to How to Do Things with Rules (Rules); the second is a continuation of the UCL Evidence Programme, which I still consider is unfinished business; and the third is an expansion of the field of ‘legal reasoning’.
General theory of norms and social rules
Throughout my career – or longer, if one includes symptoms of incipient legalism during my teens – I have been interested in rules from many different angles.9 This is hardly surprising, given their pervasiveness in everyday life, their prominence in the doctrinal tradition and the central place ideas about rules had in the work of both Hart and Llewellyn and their successors. Three themes were especially prominent in my early teaching and writing in this area. First, unease with the equation of law with rules and doctrine. My first interpretations of R/realism centred on the theme ‘for most purposes the study of rules alone is not enough’ – hence the importance of context, institutions, processes, power, impact and the relations between rules and actual practices (Chapter 13). Secondly, directly influenced by Llewellyn, I was more impressed by the continuities between interpreting legal and social rules than the few distinctive features of legal interpretation such as the doctrinal aspects of reading and using precedents and legislation. Here distinctions between legal and non-legal should not bear much weight, except in some quite specific contexts, for instance where a practical issue turns on the meaning of ‘law’ (e.g. who is an expert on Dinka law?).10 The ideal type of conditions of doubt in interpretation applies to social and moral rules; in legal contexts there may be some additional considerations, mainly connected with the complexity of modern state law. A third theme, illustrated by The Case of the Legalistic Child, concerned attitudes to rules in relation to culture, individual psychology and especially the different standpoints and roles not only of professional participants in the context of rule-making, interpretation and application but also of subjects of rules as users, ‘bad men’, victims, witnesses and so on.
These three themes all find a place in How to Do Things with Rules, but as authors we were constrained by the fact that this book was both conceived and perceived as an introductory text for beginning law students – a primer of interpretation. The form constrained development of major theses and only a few colleagues have treated it as a serious contribution to scholarship or theory. However, we felt that some of the content was quite original and there were useful insights and intimations of others which could be further developed. Without being presumptuous I think that Rules contains the seeds of questions that could engage twenty dissertations.
Our heritage of this kind of theorising includes important contributions from moral philosophy, logic, speech act theory, sociology, game theory, economics, decision theory and jurisprudence, among others, to say nothing of artificial intelligence and neuroscience.11 Despite brave efforts by David Lewis, Joseph Raz, Frederick Schauer and others, we are long way from having a settled framework of basic concepts let alone a fully integrated overarching general theory of norms. There is no agreed vocabulary, no settled taxonomy of types of rules or norms, and an uneven body of theorising about a bewildering range of issues.
Frustrated by the constraints of the textbook form, I had hoped to write a second book about rules in general. For many years I collected books, photocopies, examples, cases, clippings, ideas, cartoons and quotations as they cropped up. My improbable library includes manuals of etiquette and advocacy, encyclopaedias of sports and games, manuals for businessmen that one finds in airport bookstalls, guides to parenting and books with titles such as Watching the English: The Hidden Rules of English Behaviour12 as well as standard academic works.13 Material from some of these have been infiltrated into the five successive editions of Rules. In the late 1970s with a social psychologist, Sally Lloyd-Bostock, I started a project on ‘legalism’ which came to nothing as our interests diverged. I have toyed with the idea of an ethnographic study of the attitudes and behaviour of law examiners in relation to examination rules, marking standards and decisions; The Examiners’ Meeting could be rendered in the same style as Yes, Minister.14 I have written extensively on realism and doctrinal approaches, and on particular topics such as normative and legal pluralism; transplantation of law (what exactly is diffused? Doctrine, concepts, wigs, architecture, ideology?); Bentham’s anti-nomian thesis regarding adjective law (evidence and procedure) (Chapter 14); and many other topics. Recently in Oxford I have followed the series of interdisciplinary seminars on ‘Legalism’ involving historians, jurists and anthropologists that has so far resulted in three substantial volumes;15 and I have spent a lot of time on the nature, scope, limitations and functions of the Law of Evidence, bearing in mind both Thayer’s dictum that ‘the Law has no mandamus on the logical faculty’ and Wigmore’s irritated outburst that to talk of rules of credibility or weight was akin to moral treason.16
As noted above, I had hoped to produce a second book on rules, a cross-disciplinary monograph addressed to a wider audience. I did not get very far with the project because I have been daunted by the enormity of the task. Even if one confined one’s attention to social rules as one species of a much broader genus, it transcends many disciplines and contexts, it is beset with philosophical and conceptual puzzles and it involves many lines of enquiry that lead in different directions. Not only are ideas of rules and norms relevant to all humanities and social sciences, but other disciplines as varied as Linguistics, Neuroscience and Computing would need to be involved.
It is now too late for me to set out on a major project on my own or as part of a team. But I can indicate some potential lines of enquiry that could help to form the basis for a multidisciplinary field, perhaps encompassing study of the theory and practice of social norms. This would probably be even broader than the ambitious UCL programme on Evidence.17 One person on their own could not even sketch the outlines of what a genuinely multidisciplinary field on the study of social norms might encompass.
However, I am able to start answering the question: what might the discipline of law offer to such an enterprise? First, there is a sophisticated body of theoretical literature, ranging from the technological (e.g. on drafting, plain language, regulation) to general contributions to philosophical theory (e.g. Raz, Schauer); debates, some akin to theology, about formalism, literalism, constructivism, liberal interpretation and original intent; legal, sociological and managerial work on regulation and compliance; and so on. Law may not be merely a matter of rules, but all those professionally connected with law have to be at least aware of the basics of rule-handling. Secondly, the legal literature explores a rich array of concepts and distinctions on the nature of norms, types of norms and differences between norms and cognate concepts. Ordinary language exhibits some nuanced distinctions, for example between rules, principles, guidelines, standards and maxims; my shorter Collins Thesaurus lists eighteen synonyms of ‘rule’ (n.) in its main entry and several more in later sections. Rules adds others and discusses difficulties of classifying rules and explores distinctions between rules, commands, habits, predictions and values; we have been rightly criticised for not paying enough attention to standards;18 Ronald Dworkin stimulated a rich debate about principles and related concepts; there is a growing literature on ‘soft law’ and nudging; Frederick Schauer illuminates the concept of ‘rules of thumb’; technical works on legislative drafting, for example, extend the vocabulary; and there is some excellent literature on legislation.19
Thirdly, law provides a cornucopia of primary sources, texts and concrete real-life and imagined examples (e.g. hypothetical cases in moots, mock trials and examinations) from statute law, law reports, trial records and other actual cases. As mentioned before, one of the strengths of Law a discipline is that much of the raw material for legal scholarship comes unsolicited from the real world rather than from artificial examples dreamed up by academics. Here reality often outruns imagination.
Fourthly, the discipline of Law can offer material on a wide range of topics that might be worth pursuing in developing a multidisciplinary field centred on social norms in general. Even the compressed chapter in Rules, grandly entitled ‘Of Rules in General’, deals with rules and cognate concepts, rules and values, rules and results, difficulties of classifying rules, the relationship between rules, systems, orders, codes and other agglomerations (Does every rule belong to a system? Is English law systematic? What counts as a code?), and different meanings of interpretation and application. That is just a start.
Reasoning in legal contexts20
In 1983–4, when I took up my post at UCL, I designed a mini-course called ‘Reason, Rationality and Reasoning in Legal Contexts’. This was an eight-week optional module within the LLM Jurisprudence course. It was a by-product of my Evidence project. It started with the combination of two ideas: first that lawyers (and other relevant actors) do not reason only about questions of law – much of my Evidence project concerned reasoning about issues of fact and problems of fact-determination; secondly, that adjudication is best studied in the context of a total process model of litigation broadly conceived.21 Each actor would have a specific standpoint which changes as the process moves on. Many of these decisions or choices are typically not on pure questions of law or fact: for example, prosecutors have to decide whether or not to prosecute and on what basis; defendants in criminal cases have to decide whether or not to plead guilty, possibly after a bargain, or whether to appeal against conviction or sentence on what grounds; Parole Boards have to decide whether a prisoner is likely to be a continuing risk to the community. In real life judges of different kinds have to make diverse kinds of decisions as part of their jobs – for example, on admissibility of evidence, procedure, sentencing or costs or damages. Only for appellate judges (and a few others, such as legislative drafters) are questions of law generally paramount. Some actors can frame the issues themselves; some, including judges, must often take the issue(s) as framed by others.22 Many of the decisions taken by actors in litigation are more or less routine, but all in theory involve reasoning towards and/or justifying each decision. In principle these are ‘rational’ and subject to rational reconstruction. It is obvious that even standard operations in litigation include many kinds of decision which may involve various, but often related, kinds of reasoning. And, of course, lawyers and other actors have to reason in many other kinds of non-litigious context. This is one area where the doctrinal tradition has impoverished legal theory and legal scholarship by almost entirely confining the term ‘legal reasoning’ and their attention to questions of law, typically in ‘hard’ – that is, exceptional – cases.
The imbalances of attention and of understanding in this area are clearly evidenced by the massive literature in both common law and civil law traditions about reasoning and argumentation about questions of law. This literature pays scant regard to the fragility of the distinction between questions of fact and law and the ways in which institutional contexts and conceptions of role influence how issues are framed and processed, how cases are treated as ‘worth appealing’ and numerous other contextual factors. When I took this up in the 1980s the literature on other aspects of reasoning in legal contexts was at best patchy. There were some interesting studies on such matters as decisions to prosecute, negotiation in civil and criminal processes, and pleas in mitigation, but nothing comparable in terms of extent or sophistication to the work on questions of law. Scholarship has since developed significantly in most of these areas, but largely disconnected from the jurisprudential literature about ‘legal reasoning’. Much the same applies to the lively debates on probabilities and proof which began in the late 1970s Moreover, there has been almost nothing systematic about the similarities, differences and interconnections between these different kinds of decisions and reasonings.
There is a host of interesting questions that can be posed not only in relation to what constitutes a valid, cogent or persuasive argument in each kind of context, but also how these various lawyers’ (and others’) reasonings relate to each other. For example, can all reasonings be subsumed under a single general normative model of ‘practical reasoning’? Do binary questions of law, questions of fact and cognate others have structural similarities?23 Why are they thought to be different given the elusiveness of distinctions between law and fact? There are also many empirical questions about how actors in fact ‘reason’ in these different contexts, how they articulate such reasonings, and where do rhetoric, storytelling and chance fit into this broader picture.24
My LLM module started modestly by exploring standard models and practices relating to investigation, decisions to prosecute, plea bargaining, settlement in civil litigation, mediation and adjudicative decisions on fact, law, procedure and sentencing. Students were asked to do case studies on selected operations. Although this worked quite well in opening up horizons, it soon became clear to me that this field could not be dealt with satisfactorily in a single module, even if I were competent to teach it. I had already done some preliminary work on police investigation, decisions to prosecute, judicial and jury fact-finding and probabilities and proof, and I had written in an elementary way about ‘legal reasoning’ in the conventional sense.25 But it was obvious that to deal with this properly would involve a major commitment and substantial help from several fields. I reluctantly decided instead to continue to concentrate on Evidence, Proof and Fact-finding and launched a full course under that label. This involved a sharp focus on inferential reasoning from evidence in various contexts, but did not spread out to the larger subject.
If I had not decided to take up ‘Globalisation and Law’ in the 1990s I might have committed myself to ‘Reasoning in Legal Contexts’. In the event I did little more than deepen my study of evidential reasoning and involve Philip Dawid, Professor of Statistics at UCL, an open-minded Bayesian, in teaching and thinking about probabilities and proof in litigation, as well as evidence-based policy and law-making. He later led the UCL Evidence Programme discussed in the next section. I sometimes regret not having made a greater commitment to these broader aspects of reasoning in law, as the neglect of this area is a prime example of the influence of the dominance of narrow doctrinal traditions. How can one understand reasoning about questions of law in isolation from other kinds of practical reasoning in adjacent institutional and procedural contexts?
Evidence II
From early on it was obvious that rethinking Evidence in legal contexts would involve cross-disciplinary work. In the early days for me this mainly involved probability theory (including inductive logic)26 and historiography.27 In the late 1970s and early 1980s I was a consultant on Law and Psychology to the Oxford Centre for Socio-legal Studies, working with Sally Lloyd-Bostock, a social psychologist who organised an excellent series of workshops involving various kinds of practitioners as well as academics from several disciplines.28 Psychological studies of eyewitness identification were prominent at that stage.29 To start with Terry Anderson and I concentrated on modifying Wigmore’s ‘Principles of proof’; as with history, the focus was on evidence of particular past events. Then in about 1980 we encountered David Schum and under his influence we broadened our range to include more disciplines and an extension to current and future-directed enquiries.
Dave Schum became the third member of a tripartite partnership that has now lasted nearly fifty years. As a social psychologist and statistician at Rice University he had encountered Wigmore’s Science (1937) by chance and had used the ‘chart method’ in training intelligence analysts for the CIA. This led to a brilliant two-volume work on Evidence and Inference for Intelligence Analysts (1987). This was probably considered too daunting by the intelligence community and failed to attract attention beyond it. However, Schum persisted and in 1994 produced another major work, Evidential Foundations of Probabilistic Reasoning (1994) in which he synthesised basic ideas about evidence and inference from several more disciplines, including Logic, Philosophy, Semiotics, Artificial Intelligence and Psychology as the basis of a multidisciplinary ‘substance blind’ approach not confined to theoretical enquiries. Schum pointed out that accountants, actuaries, air traffic controllers and other practitioners on through the alphabet all have to make decisions on the basis of drawing inferences from evidence.
Schum’s tour de force came out just before Terry Anderson and I were Research Fellows at the Netherlands Institute for Advanced Study (NIAS) in Wassenaar in 1994–5. Our group project related to the Netherlands Criminal Justice System, but we set up an extra multidisciplinary group from the other Fellows to explore methodological problems relating to evidence, inference, and interpretation. I formulated the following hypothesis as a starting point:
Notwithstanding differences in (i) the objectives of our particular enquiries; (ii) the nature and extent of available source material; (iii) the culture of our respective disciplines (including their histories, conventions, states of development etc.; (iv) national backgrounds; and (v) other contextual factors, all of our projects involve, as part of their enterprise, drawing inferences from evidence to test hypotheses and justify conclusions, and the logic of this kind of enquiry is governed by the same principles.30
This became known as ‘Twining’s hypothesis’, but the project was based on Schum’s approach. Towards the end of the year we invited Dave Schum to come over to Wassenaar to lead the final session and, in due course, an edited volume of papers from the project was published, with an overview and commentary by Schum.31
Since the 1990s evidence has become especially newsworthy.32 Now in the Trump era, Fake News, viral rumours and disparaging of experts have continued the trend.33 Today one can apply the Newspaper Exercise to news items involving talk about evidence and one is likely to find them on every page. Such developments were probably a major stimulus to the Leverhulme Foundation in 2002 to invite bids for a £1 million grant for a project on Evidence. Philip Dawid led the initiative to invite expressions of interest within UCL. Academics from over twenty departments responded and a multidisciplinary proposal, along with one from LSE, secured the grant (enhanced by the Economic and Social Research Council), which seemed enormous to those in the Humanities and some Social Sciences who were not accustomed to such expansive funding. Ably led by Philip Dawid, with participants from nearly twenty disciplines, the project struggled valiantly with the intransigent problems of multidisciplinary work.34 The project culminated in a major conference held at the British Academy in 2007 and a substantial volume which describes and evaluates the project in 2011.35
I was a bit disappointed at the outcome of the project. The main reason, in my view, was that four years was too short a period for establishing an essentially new field. In fact, there seemed to be a reasonable chance of getting further funding, but Philip Dawid understandably wanted to step down and no one involved was prepared to take on the demanding role of co-ordinating a second phase. Several of us tried to revive the project, but except for a multidisciplinary seminar in the Graduate School at UCL, it eventually fizzled out. In my view there is a lot to build on from these initial projects, but if something like this programme were to revive, it would have to be more sharply focused and based on a clear consensus about the aims, methods and working assumptions.36
Since 2009 there have been many other developments in the field. Perhaps the most significant one has been a project sponsored by the Royal Statistical Society’s Working Group on Statistics and the Law involving forensic scientists, lawyers and expert witnesses. This has produced four very useful guides for practitioners.37
Human Rights: Southern Voices
In 2005 I started on a more promising project. As a legal theorist adopting a global perspective I was concerned about the parochialism or insularity of the mainstream heritage of most Western Jurisprudence and the accompanying dangers of ethnocentrism and Eurocentric universalism in its practices. For example, the indexes of even the more expansive student books hardly contained the names of any ‘Southern’ jurists. The central question was: what steps might be taken towards trying to open up our Western practices in thinking, talking, debating, and teaching about theoretical questions concerning law in an era of globalisation?
I canvassed options about where to start. These included stimulating a series of book-length studies of non-Western jurists;38 a project to facilitate translations of texts inaccessible to linguistically deprived anglophones; and encouraging the establishment of more academic posts devoted to relevant subjects. I decided to start with a modest plan to try to make a few specific jurists and texts better known in the anglophone West.39
After considering a range of candidates I cut my list to four individuals whom I respected, whose background was already familiar and whom I knew personally as colleagues and friends. I called this the ‘my chums project’. Although I am not a specialist in human rights, the four I chose from a short-list of seven or eight also had the great advantage that all were activists and writers about human rights, yet each of them, despite some striking similarities, had a distinctive approach to the subject.
After some preliminary research, I started with a public lecture in Alberta in 2005. The following is the abstract for that occasion:
In the context of ‘globalization’, Western jurisprudence has largely ignored non-Western viewpoints, interests, and traditions. This article takes a modest step towards de-parochializing our juristic canon by introducing writings about human rights of four ‘Southern’ jurists: Francis Deng (Southern Sudan), Abdullahi An-Na’im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). All were trained in the common law and have published extensively in English, so their work is readily accessible, but their perspectives show some striking differences. Deng argues that traditional values of the Dinka of the Southern Sudan are basically compatible with the values underlying the international human rights regime. For An-Na’im, a ‘modernist’ interpretation of Islam is mostly reconcilable with international human rights, but acceptance of such ideas depends far more on conversations within Islam than on cross-cultural dialogue or external efforts. Ghai questions claims to universal human rights; however, from his materialist stance and his experience of postcolonial constitution-making, human rights discourse can provide a framework for negotiating constitutional settlements in multi-ethnic societies. Baxi argues that as human rights discourse is professionalized or hijacked by powerful groups, it risks losing touch with the suffering and needs of the poor and the oppressed, who are the main authors of human rights. They make a fascinating study in contrasts. But, although they differ, they do not disagree on most fundamentals; rather they complement each other.40
In recent years their ideas seem to have converged in some significant ways. First, all four are acutely aware that we live in a world characterised by a diversity of beliefs and culture. So far as I can tell, each of them would opt for what Patrick Glenn calls ‘sustainable diversity’ rather than some bland homogenisation in which one size is made to fit all.41 Secondly, that they accept pluralism (of beliefs, cultures, traditions) as an intractable social fact raises issues that are fashionably discussed in terms of universalism versus cultural relativism, especially in relation to human rights. My sense is that all four are impatient about such debates. Each steers a path between strong versions of universalism and particularism. All four reject strong cultural relativism.42 None of them treats the fact of pluralism of beliefs as a ground for abdicating moral commitments or refusing to criticise particular cultural practices. On ethical universalism, their positions are somewhat different: all four are politically committed to fighting for the basic values embodied in the Universal Declaration of Human Rights. An-Na’im comes close to espousing a religion-based form of ethical universalism; Deng emphasises human dignity as a basic value, but seems to use international human rights documents as consensual working premises rather than as embodying a single set of universal moral precepts; Ghai and Baxi pragmatically plugged into human rights discourse quite late in their careers, because it was so dominant in the spheres in which they operated. Ghai sees it as a historically contingent workable framework for negotiating constitutional and political settlements and developing constitutions through genuinely democratic constitutive processes, but he emphasises material interests rather than cultural differences as the main recurrent basis of conflict. Baxi also treats human rights as a form of discourse and emphasises its potential for abuse and obfuscation, passionately arguing for it to be allowed to be the medium for expressing ‘voices of suffering’, especially of the half of the world that is deprived of food, water, health, education and other necessities for a life worth living.
The lecture in Alberta went well. From this I learned that the topic could be made interesting and intelligible to people who were both geographically and intellectually remote from it. However, a single lecture, published in an excellent, but obscure, Canadian journal, would not do much to further the cause of making these authors and texts better known. If their voices were to be heard they had to speak directly to the intended primary audience, Western jurists and specialists in human rights. So I designed a book that was intended to be a model for similar projects. It was in a form that would make it usable in teaching as a resource or as a text. The ingredients were a substantial selection of key texts by each of the four; an introduction to the project as a whole; a short biographical and contextual introduction to each text; and a concluding chapter which, rather than criticising or analysing each text in detail, suggested how they related to each other and to the broader context of mainstream Western human rights literature. It also outlined some preliminary thoughts as to how this project might be extended.43
As editor I had several advantages. I knew each of the four thinkers personally and where they were coming from. I interviewed three of them and sent some questions to the fourth. I had a research grant for the project. We managed to bring all of them together at a symposium in Belfast in June 2008 when they exchanged views and discussed some issues about the project: what was meant by ‘Southern’ and ‘voice’ in this context. They all agreed that they were not representing anybody, that they were cultural hybrids, but that they were all concerned with ‘Southern’ interests and points of view and had extensive experience of dealing with actual problems on the ground. Some of these advantages will not be easily repeated and this model cannot be followed exactly. However, I am convinced that the contextual material and the grouping of several individuals together added to the value of the book.
What might be the next step in the project? I was well aware of the strict limitations of this first effort. The primary audience was Western. Secondly, the voices were all male; they were common law trained jurists of the immediate post-Independence generation (born 1938–46) from former British dependencies, writing in English, about human rights for anglophone audiences.44 Each of these elements could be varied. I tried to stimulate some friends and colleagues to take up the challenge.45 Of course, the possibilities are endless, for in addition to replicating my model, one could proceed along different paths by changing just one of the aspects that limited the initial project: why confine the audience to anglophone jurists and human rights lawyers? Why only texts written in English? What about earlier and more recent generations? And so on. Whatever project emerges out of Warwick will, of course, be modest compared to the possibilities, but it will be a useful next step and I hope that others will follow suit.
Rethinking Legal Education
One of the central claims of the first edition of this book, was that the legal world would change more in the next twenty years than it has in the past two centuries. Three years on, I believe we are on course.
After completing Blackstone’s Tower and collecting some of my essays on academic law (scholarship, education and training, legal theorising and reading legal texts) in Law in Context: Enlarging a Discipline (1997), I decided to turn my attention elsewhere and for about fifteen years I did not treat this as one of my interests. However, I was sometimes invited as an ‘expert’ to air my views. This was a conscious decision because I felt that there was something seriously unsatisfactory with the predominant modes of thinking, writing and debating about the general area, but I was not able to diagnose my dissatisfaction. I was not confident that I knew what I was talking about – or that anyone else did at the policy level. After the publication of the Legal Education and Training Review (LETR) Report I rather hesitantly reinvolved myself in the area mainly as an activist rather than scholar.47 The report was in some important respects an improvement on its predecessors in England and Wales: it adopted an evidence-based approach to legal education policy in the context of the regulatory changes following the Legal Services Act of 2007; it was well-researched and more educationally sophisticated than all prior reports; the main groundwork was done by four academic lawyers who were specialists in the field; and there was quite widespread consultation. However, I was left with the same niggling sense of dissatisfaction not only about the report and its aftermath which were naturally constrained by narrow terms of reference, but also by the general discourse in the field as a whole. Since about 2016 I have begun to develop ideas about how the whole field of ‘Legal Education’ or ‘Legal Education and Training’ or ‘Learning about law’ might be reframed to provide a basis for thinking, research and policy-making in the coming years which promise or threaten to be a period of quite rapid change.
Before I temporarily ‘retired’ from the field I had taken a few steps in the direction of a radical rethinking. During the 1990s, as I began to think about ‘globalisation’, I used the device of a mythical report on ‘Legal Education in Xanadu’ in several papers to challenge some conventional ways of thinking about the field. Building on the ILC Report, I used the following working assumptions and hypotheses as a starting point for looking at the field from a global perspective:
In (almost) all societies:
Almost everyone receives some legal education.
That process lasts from cradle to grave.
The amount of informal legal education (i.e. outside educational programmes) greatly exceeds the amount of formal legal education, even for career lawyers.
The actual and potential demand for formal legal education almost invariably exceeds the supply.
Most formal legal education is delivered in institutions other than university law schools.
Within most countries, specialised institutions called ‘law schools’ can be quite varied.48
In the 1990s I used these propositions in papers with titles such as ‘What Are Law Schools For?’ or ‘Recent Trends in Legal Education in the Commonwealth’ and I followed the ILC Report in urging readers to think in terms of ‘national systems of legal education’. I still stand by most of my detailed arguments, but rereading these after a break of nearly fifteen years a dose of self-criticism has pinpointed one major flaw in my own thinking since ‘Pericles and the Plumber’. This was that in most of the discourse about ‘legal education’ we have paid lip-service to the twin ideas of life-long learning and switching attention from teaching to learning. Instead we had focused on institutions, teachers and courses in ways that side-lined these ideas and was inconsistent with my own hypotheses.49 Even the term ‘legal education’ carries strong associations with formal learning; ‘Law for non-lawyers’ is a give-away – we do it for them. The fact is that formal education and teaching is a very small part of learning about law, even for career lawyers, judges and legal scholars.
Adopting a perspective that focuses on learning rather than teaching and lifelong learning about law rather than formal legal education (in the sense of learning that takes place in specialised institutions and structured courses) has enormous implications that need to be worked out in detail.50 This can be illustrated by contrasting three models of ‘Legal Education’ or ‘Learning about law as a field’.
In a very preliminary way one can chart some of the implications in terms of three simplistic ideal types: (a) the ‘primary school model’ which has dominated nearly all legal discourse, research and debate until recently;51 (b) the professional lawyer model, including ‘the reflective practitioner’, who learns by ‘experience’, Continuing Professional Development (CPD) and many informal and formal processes in very many different contexts; (c) the Lawrence Friedman model of Western societies as one vast school of law, involving all human beings (and other legal persons).52 See Table 3.
| Primary School Model | Professional model | Friedman model | |
|---|---|---|---|
| Who learns? | ‘Law students’ | Law professionals (for whom law is a major part of work) | Everyone |
| When do they learn? | Age 18–25 | Lifelong | Cradle to grave (‘lifelong learning’) |
| Where do they learn? | University and/or professional Law schools | University +, work, self-study, (life) | Home, workplace, disputes etc.* |
| What do they learn? |
| Application of law, informed by theory, etc. | Practically relevant (e.g. driving rules; consumer law; divorce law) or serendipitous matters, e.g. via the media. |
| How do they learn? | Formal study | Formal + | informally (plus some formal)** |
* Cf. Santos’s ‘structural places’: Householdplace, Workplace, Marketplace, Communityplace, Citizenplace, Worldplace. B. de Sousa Santos, Toward a New Common Sense (1995), 417.
** Informally by direct experience (regular/ episodic); indirect/vicarious experience; foreground observation; ‘general culture’ (e.g. TV, other media; oral tradition).
These ideal types can be refined and expanded, but even in this crude form they illustrate some of the implications of taking lifelong learning rather than institutional provision seriously.
First, the part and the whole. Both the first two models can be subsumed under the third. This shows what a small part of the total picture of learning about law the first two models cover. We have seen already that in most talk of ‘legal education’ a vast proportion of institutions that provide substantial instruction about law fall beyond the radar.53 Similarly, nearly all the leading reports on legal education and training have an extraordinarily narrow focus, but command a great deal of the attention of legal educators. They only deal with one small part of the whole of formal legal education. For instance, the following aspects are barely mentioned in the LETR Report: scholarship, postgraduate studies, public understanding of law, law in schools, human rights education, judicial studies, legal and multidisciplinary inputs into other kinds of professional formation (e.g. police training, forensic science, medicine, engineering, IT). Nearly all of these were outside LETR’s remit, but decisions on professional legal education and training will have repercussions in other sectors. Changes in initial professional formation of providers of legal services (plus enhanced CPD) should not unduly influence developments of other aspects of the total sphere, especially at primary level and more generally in respect of legal education research.
Less obvious is what tends to be omitted because of the limited concerns of such reports. For example, differences with regard to function and priorities between different sectors can be seen by contrasting the LETR assumptions with those of elite law schools in England and Wales:
Regulation of professional formation is rightly concerned with basic day one competence rather than excellence and perceived necessary requirements of competence rather than desirable characteristics of many practitioners such as numeracy, social science awareness, fact skills, command of languages, acquaintance with foreign legal traditions, implications of transnationalisation of law, and specialisms. That is natural for regulation, but narrow for the total system of LET. The mission of university law schools is much broader than provision of primary legal education (to intending practitioners and others), especially in relation to scholarship, specialisation, advanced study, inter-disciplinary work. Regulation of professional competence should encourage rather than undermine that mission.54
Thirdly, insofar as discussions and research focus on teaching and institutions (on formal education in a narrow sense), this leaves out nearly all informal learning, including the elusive category of learning by experience. Yet for nearly all those who follow law-related careers probably only a small proportion of their time will have been spent on ‘formal’ legal education. So far as I know, we do not have figures for this (I would guess a mean of four–five years, except for academics). For teachers, research about teaching is much easier and more satisfying than research about learning and, in this regard, we need much more help from professional educators and from other disciplines, such as Management and Medicine, where learning by experience appears to have had much more attention.
This is work in progress and one of my current projects is to explore further the implications of making use of the Friedman model in thinking about the field. For example, although academic lawyers interested in legal education have picked up some of the specialised concepts of education theory, there is a need for much more refined conceptual analysis in this area. Empirical research into life-long learning by lawyers opens up another Pandora’s jar, where again we need help from professional educationists who seem to have generally steered clear of Law so far.55 Another topic is the relationship between legal awareness/public understanding and formal legal education. When I have written about it I have generally treated it as a quite separate field. But the connections may be much closer than we have assumed. For example, DIY lawyering, law and the media and the changes in legal service provision are all relevant to understanding how individuals, corporations and groups learn about law, including about misinformation and information lags.56
This leads on to one more point to underline how radical rethinking of all aspects of learning about law is badly needed. We are already in a period of very rapid change in information technology, education, higher education (including finance), legal services and other aspects of the contexts of learning about law. Educationists are saying that it is virtually impossible to predict what education in schools will be like in ten years’ time. The same applies to learning about law, so that much of our received wisdom and knowledge is likely to be superseded even in respect of the most studied aspects of formal legal education. Thinking about my own work, I have to confront how much of that will be worth attention in a few years’ time. I am confident I would stick to the basic values of liberal education. But beyond that, watch this space.57
Some clarifications
Complaints about being misunderstood or misrepresented are wearisome for most readers. Nearly all jurists are prone to become victims of labelling, because commentators want to ‘place’ them in a school, or movement, or ‘ism’ or some other kind of pigeon-hole, as if each thinker should only be remembered for one thought. Rather than complain about misinterpretations of my work I shall try to clarify two potential points of misunderstanding in relation to this book. First, why do I focus on Law as a discipline when I emphasise the importance of other disciplines in understanding legal ideas and phenomena? Secondly, I address some confusions about the idea of ‘a theory of law’.58
Why focus on Law as a discipline?
In many of my writings I have focused on the discipline of Law conceived as the study of institutions, ideas (including doctrine), practices and texts the mission of which is to advance and disseminate knowledge and understandings of its subject matters, whatever these happen to be at a given time and place. This does not mean that I believe in the autonomy of disciplines in an epistemological sense – in some characteristic forms of knowledge or understandings or methods that are severable from other forms. Some colleagues do. Rather I have emphasised the idea of Law as a discipline because historically and ethnographically in the West in modern times Law schools, the Law teaching profession, Law libraries and Law students have in fact been institutionalised in distinctive ways and have often been relatively isolated from other institutionalised academic disciplines which also tend to have more or less distinctive tribes and territories.59 Anglo-American law schools have provided the main context for this narrative – including the history, economics, culture, politics, activities, trends, fashions, and controversies which characterise them, allowing for significant diversity among times, places, and traditions.
By choosing to focus much of my work, including this book, on the health of Law as a discipline, I have sometimes attracted criticism for seemingly isolating it from other adjacent disciplines and thereby reinforcing the tendency to ‘silo’ vision of strong departmental systems of knowledge organisation.60 But I do not subscribe to any strong versions of the autonomy of disciplines nor to sharp distinctions between different schools, traditions or domains of Jurisprudence. Moreover, as a field concept the discipline of Law has no firm boundaries; it varies by time and place and specialisation, and often substantially overlaps with other fields. For example, study of Rawls’s theory of Justice does not ‘belong’ to Philosophy or Political Theory or Jurisprudence – it is an important focus of attention in all of them, with many shared questions and a largely shared heritage of literature. And the scope of the discipline is constantly changing as is illustrated by the elusive referent of ‘Law’ in such phrases as ‘Harvard Law School’ (Chapter 1).
However, this explanation is not enough on its own. The question remains: if the aim is understanding legal phenomena and ideas, why focus attention on a single discipline? For this book, the answer is simple: it is a narrative of the development of my thought. I identify as a jurist, not as a philosopher or social scientist or historian. The primary audience is academic lawyers especially those whose institutional context is anglophone law schools. Nearly all of their students are law students; they claim to contribute to legal scholarship, legal theory or specialist legal sub-disciplines, and to the general health of their discipline. Their primary language is English and, for most of them, their professional formation has been in the common law tradition. Like me, they generally identify as scholar-teachers of law. Such factors are to do with our educational backgrounds, the institutional contexts and cultures in which we operate, our job descriptions, our professional identities and much else besides. I personally do not think it helpful to treat ‘legal knowledge’ as a specific epistemological form; some colleagues do. Even if I did acknowledge the distinctiveness and relative autonomy of strong versions of legal science or doctrinalism, the whole thrust of this narrative has been that understanding law requires multiple lenses, that our discipline needs to be open and outward-looking and that many enquiries directed to understanding law are best conducted by other kinds of specialist in other kinds of institution: for example, ‘legalism’ in behaviour or attitudes raises questions for psychologists and neuroscientists as much as it does for jurists or historians or anthropologists. I regret that so little of Socio-Legal Studies takes place outside law schools and that in England (more than the United States) nearly all psychological research about law takes place in law schools rather than Psychology departments;61 and that some historians have tended to shy away from considering law from internal points of view, perhaps because it seems very ‘technical’ or because they have not been sufficiently aware of the significance of legal ideas and phenomena for their enquiries.
Symptomatic of some imbalances in the overall landscape of our discipline is the proliferation of ‘Law and … ’ fashions and movements, especially when the main initiative comes from lawyers. It is easy to satirise some of the practices by substituting ‘by’ for ‘and’ in this context: Economics by lawyers may be no more harmful than Economics by economists; Literature by lawyers may be harmless, even if it contributes little to the other discipline or literature itself;62 Psychology or Psychiatry by lawyers may be as dangerous as surgery by lawyers. Sociology by lawyers and ‘law in context’ have both been criticised by sociologists of law, notably Roger Cotterrell and Simon Roberts (themselves both law teachers), for not breaking away from narrow lawyerly mindsets;63 I am not qualified to assess to what extent Philosophy by lawyers has contributed much to Philosophy, but I can acknowledge that a significant number of philosophers have contributed significantly to legal understandings, especially when they have equipped themselves with adequate local knowledge. There are, of course, some individuals who have what Geoffrey Wilson called ‘two disciplines in one head’ and there are a few who teach in two departments, but for the most part academic lawyers are firmly rooted and embraced by their institutional context, the law school. And, as I argued in Chapter 16, academic lawyers are collectively responsible for the health of their discipline. None of this is inconsistent with believing that understanding law is a multidisciplinary enterprise.
Theories of law
Make me no boundless love:
Move me from case to case.
In earlier chapters we have seen that my conception of Jurisprudence rejects any idea that it is a one-question subject or that it can be healthily abstracted from ordinary legal scholarship or that theories are the only or even the main products of the activity of theorising or that jurists should only be concerned with philosophically interesting questions or that doctrine can be interpreted without reference to context or that Jurisprudence or Law as field concepts have clear boundaries or can be treated as autonomous or self-contained (Chapter 1). Against this background, I wish to restate my position on theories of law to clear away some misconceptions.
The terms ‘a theory of law’ or ‘theories of law’ are ambiguous. They are greatly overused. If what is meant is a general definition of the word ‘law’, I share with many others the view that this is a futile enterprise, because the word has so many meanings and associations in so many different contexts. Even an attempt to provide a simple translation from French or German into English runs into difficulties, because our language does not distinguish between ius and lex, droit and loi, or rechts and gesetze.
If what it means, as it does explicitly for some, is the enterprise of trying to discover, divine, construct or impose the essence or true nature or core of law or a concept of law that fits all existing and possible legal systems,64 I am not sure what kind of quest this is and I am sceptical of its value or feasibility in any of its standard versions.65 I doubt that law has an essence or nature or core; if it does, how would one know if the quest had been successful? I am equally sceptical of the utility of such an outcome. How would it contribute to the health of our discipline? When is law a good organising concept? Can understanding law be reduced to a single perspective and one set of answers to one set of questions? Would not a single overarching conception of law artificially limit enquiry?66 If, as seems to be assumed by some, the sole or main aim of Jurisprudence/Legal Theory/Philosophy of Law is directed towards that ultimate goal of Jurisprudence, what are the implications for less abstract enquiries within our discipline? A change of label?67
Like John Gardner, Ronald Dworkin’s successor at Oxford, I do not have nor do I aspire to such a theory.68 I am an anti-reductionist. For me juristic enquiries are concerned with a wide variety of questions relevant to understanding the varied, complex and fluid subject matters of our discipline from a variety of standpoints and perspectives. One suspects that an elementary conflation is sometimes being made between understanding the concept of law and understanding all of the ideas and phenomena subsumed under such a concept.
If the term ‘theory of law’ means a summary of the (main) ideas of an individual jurist restated or condensed as a coherent whole (his or her answers to his or her questions or to some shared ones), some thinkers are more susceptible to such treatment than others.69 This is one task of intellectual history which takes many forms and is full of pitfalls. The most common ones, observable in introductory textbooks, tend to be the result of over-simplification: jurists tend to have more than one idea, resist neat pigeonholing, may change their minds, or contradict themselves or be open to different interpretations and so on.70
Some writers assume that defining ‘law’ is a necessary or the best starting point for any law-related enquiry. Others assume that all middle-order theorising is dependent on such a theory. Or that not searching for the one is unambitious.71 But it seems strange that an obsessive one-question enquiry should be considered more ambitious than the endless search for better understandings of the immensely complex, plural and ever-changing phenomena that are the subject matters of our discipline. Even if the Holy Grail were found, it would boil few cabbages.
Related to these practices is the tendency to use ‘law’ as an organising concept for the study of a particular enquiry or project. We need organising concepts for providing indications of the parameters and focus of a particular enquiry or project or other intellectual enterprise. Sometimes ‘law’ may be adequate for such a purpose, but this needs to be approached with caution. Organising concepts are sometimes expected to organise too much. The adequacy of a particular organising concept (or framework of concepts) depends on the particular enterprise. What does it include or exclude or treat as a grey area? Is ‘law’ over-inclusive or under-inclusive for this purpose? Could a more specific category be more suitable? What is the concept expected to organise in this context? Is the choice of law (or related terms such as ‘legal’) being influenced by one of the assumptions made in the last paragraph or by the magnetic pull of Grand Theory? Or is it just a lazy choice?72 For example, some writers on ‘legal pluralism’ insist that the first question is where a boundary between ‘legal’ and ‘non-legal’ is to be drawn.73 In my view, that has had the effect of quite unnecessarily dragging the whole debate about the concept of law into an already confused scene.74 In this context I usually adopt a broad concept of non-state law in order to make the point that ‘normative pluralism’ of various kinds is experienced by everyone and broadly understood, and that this is a topic about which clarification of standpoint is a better place to start for many, but not all, enquiries because the topic looks very different from the points of view of rule makers, enforcers, investors and other subjects, users and victims (Chapter 10).
Assuming that Jurisprudence is a one-question subject (Chapter 1),75 some commentators, including allies, attribute to me ‘a theory of law’ or berate me for claiming not have one or for not making it explicit. I repeat: I do not have a general theory of law nor do I aspire to one. I do not subscribe to a general definition of law outside a specified context or contexts. Despite such denials and repeated assertions that I use several concepts of law, depending on context, these attributions have continued.76 Chapter 4 of General Jurisprudence, has provided a salient target. There I suggested that a refined version of Llewellyn’s law-jobs theory (which was a theory about groups rather than law) might be a useful starting point for the specific exercise of constructing a ‘total picture’ of significant legal phenomena from a global perspective. But I made it clear that such an overview would assume a working concept of law and was not intended as a path towards a general theory of law.77 Maybe when commentators make such attributions they are succumbing to the gravitational pull of Grand Theory.
In a lecture focusing mainly on my book General Jurisprudence, Denis Galligan posed the question: why does Twining not make more use of social theory in developing the idea of General Jurisprudence rather than starting with Analytical Jurisprudence?78 In fact I started with a classic conception of the mission of disciplines rather than Analytical Jurisprudence and Galligan attributed to me a view of Jurisprudence that I do not hold.79 However, the first half of the question is a good one, and it has also been raised by others. A brief answer is that, as with World History, I have been resistant to macro-social theory and for similar reasons. I have read a good deal of Marx, Weber and Durkheim, and of more recent writers such as Selznick, Cotterrell and Santos, and I have learned a lot from them. Like Galligan, I particularly admire Max Weber. I have been influenced by him indirectly through Hart, Llewellyn and Galligan himself, especially on such matters as verstehen and the internal point of view, which is one source of my thinking about standpoint. I have drawn directly from Weber in respect of some of his particular ideas, such as bureaucracy, legal elites (honoratiores), science as vocation80 and, above all, ideal types as a tool which I use regularly.81 However, I have not been comfortable with Weber’s more macroscopic ideas, in particular modernity and the distinction between formal legal rationality and substantively rational (and irrational) legal thought. To subsume my ideas about understanding law and legal phenomena under a purely or mainly Weberian framework would have been almost like submitting to another iron cage. However, I could well have discussed Weber more extensively in General Jurisprudence.
In considering the current state of our discipline I have found many examples of what Daniel Dennett called ‘greedy reductionism’:82 for example, a tendency to leap from the local to the global (epitomised in the term ‘glocalisation’) without considering intermediate levels, such as regions or more messy sub-global patterns; reducing Legal Philosophy to the pursuit of an emaciated Holy Grail; the increasing use of indicators, league tables and other ratings; claiming universality for moral principles and human rights, while ignorant of other belief systems and cultures; leaping from the bottom rung to the top rung of ladders of abstraction without touching the intermediate ones; and making empirical generalisations about law in the world as a whole without adequate concepts, evidence or other data.
Here, let me set up two ideal types of conceptions of jurisprudential enquiries (there are many others). Let us call the one to which I approximate – the Marco Polo pole. One can set up as a contrapuntal ideal type the Kublai Khan pole, namely the view that the primary objective of legal theory is to construct general theories of law – or at least to control the world of law intellectually. In a wonderful passage, they are contemplating a chessboard. The great Khan is concerned to reduce his empire to order so as to try to actually control it. He is a systematiser, a reductionist. For Polo a single square in a chessboard is a launching point for a potentially endless enquiry:
By disembodying his conquests to reduce them to the essential, Kublai has arrived at the extreme operation: the definitive conquest, of which the empire’s multiform treasures were only illusory envelopes. It was reduced to a square of planed wood. [signifying nothingness].83
Then Marco Polo spoke: ‘Your chessboard, sire, is inlaid with two woods: ebony and maple. The square on which your enlightened gaze is fixed was cut from the ring of a trunk that grew in a year of drought: you see how its fibers are arranged? Here a barely hinted knot can be made out: a bud tried to burgeon on a premature spring day, but the night’s frost forced it to desist … ’
And Polo goes onto talk about ‘ebony forests, rafts laden with logs that come down the rivers, of dock, of women at the windows …’84
In this context Marco Polo and Kublai Khan are ideal types. It is unlikely that any legal scholar or jurist conforms exactly to either model, but most tend to gravitate towards one or other pole along a continuum. I tend towards the Marco Polo pole, but that does not mean that I reject all simplifying tools such as models, hypotheses, organising concepts or provocative propositions; I think that Occam’s razor can be a useful heuristic as a rule of thumb; in short I am a moderate particularist.85 Katherine Hume suggests that the exchanges between Polo and Kublai Khan can be treated as a dialogue within a single composite mind.86 That captures one of the basic tensions within the discipline of Law.
Envoi
Don’t ask where the rest of the book is. It is a shrill cry that comes from an undefined spot among the shelves. All books continue in the beyond.
I belong to a generation that grew up in the shadow of a ‘World War’, a ‘Cold War’, and a putative End of Empire. Wars civil, international and transnational have multiplied; there are now new perceived threats from climate change, nuclear proliferation, terrorism, angry populism and potential new Cold Wars; inequality grows. However, there has been some good news, even for pessimists. Poverty has decreased in some places; nuclear war has been averted; medicine is advancing; struggles for gender equality have gained momentum and so on.87 In this book I have tried to tell a story about my thoughts and writings as a mid-Atlantic jurist, who has never fully disengaged from the postcolonial hangover, nor the romance of the Serengeti, and the Mountains of the Moon; nor adolescent agnosticism, the spell of Oxford, the grounded horse sense of Llewellyn and Mentschikoff, nor the love of books and the urge to write.
After an unenthusiastic start I became an enthusiast for my discipline. Among its great strengths are its reach; its vitality; its responsiveness; its rich heritage of accessible primary sources; its close links with the daily practice of lawyers, judges, law-makers, deviants, victims and good citizens; and the fact that it is continually stimulated by practical issues and real as well as imagined problems.
In 1990 I was able to write: ‘During the past 30 years the discipline of Law in the Commonwealth has been undergoing an unprecedented period of expansion, experimentation and development. It has been transformed from a small-scale, low prestige subject into an unrecognisably more sophisticated, pluralist and ambitious enterprise.’88 That trend has continued since then. From my perch in Iffley I daily see the many ways in which law and Law in Oxford, in Town and Gown and the media, differ radically from what they were like in the early 1950s. This has been repeated nationally and transnationally. Our discipline is much larger in scale, more professional, much wider in its reach, more cosmopolitan, more varied than it was then. There is momentum towards achieving a fair gender balance even in law. One can expect even greater changes in the next twenty years.
In Chapter 1 I indicated that I believe that Law as a discipline is potentially an important, lively and fascinating subject but that it is not fully realising that potential. I went on to repeat that from a global perspective in the twentieth century some mainstream working assumptions of Western traditions of academic law have often tended to be ‘state-oriented, secular, positivist, “top-down”, Northo-centric, unempirical, and universalist in respect of morals’ (Chapter 18).89 That is not as negative or as pessimistic as it might sound. Some of these tendencies can be rationally defended as suitable for their time or as still worth preserving. If one reads Law catalogues or prospectuses or Internet search engines, or attends ‘Global Law Weeks’ and the like, one cannot but be impressed by the liveliness, the diversity and the enthusiasm of the next two generations. Unlike their predecessors in the UK, they will be IT savvy and most of them will have doctorates. They seem better-equipped than we were to cope with the problems they will face.
Despite undoubted advances, in my view there are two main reasons why as a discipline, Law is not yet fulfilling its potential: it has not escaped from some of the limitations of the past and it is already faced with daunting challenges which are accelerating.
I have emphasised three constraining aspects of our legacy from the past: the almost exclusive focus on municipal law of single countries and traditions; the dominance of narrow forms of doctrinalism; and the uneven, largely parochial, focus of mainstream legal theorising.
Throughout the twentieth century, and before, with the exception of Roman Law, most legal scholarship was mono-jurisdictional. Transnational legal relations were mainly conceived in terms of relations between sovereign nation states. Comparative Law, Legal History, the study of other legal traditions and systems have been peripheral. The major Western traditions have not been well-equipped to deal with the challenges of accelerated globalisation. There is a need for improved tools and greater theoretical sophistication for dealing with comparison and generalisation across legal systems, cultures and traditions. Legal statistics largely driven by crude indicators are in their infancy. The dominance and narrow exclusiveness of strong versions of the Western doctrinal tradition have been mitigated, but the study and development of doctrine has yet to be fully integrated with broader, often cross-disciplinary, approaches. Mainstream legal scholarship and research has burgeoned in the last twenty years and although somewhat uneven and serendipitous in its coverage it has generally shown itself quite responsive to changing conditions and context, as is illustrated in the UK by the extensive involvement of academic lawyers in the Brexit process.
This book is mainly about Jurisprudence and the roles of theorising in maintaining the health of our discipline in challenging circumstances. As a many-layered activity it has a lot to offer in this situation. Thanks to Hart and his successors the subject came alive in the 1950s and has been through a very energetic period. It has attracted a great deal of talent. The dominance of the analytical tradition has resulted in some distortions. The rough division of the area into analytical, normative and empirical has encouraged a tendency to silo thinking. Law and Social Theory and other aspects of Philosophy – such as epistemology, logic, aesthetics cognitive theory and practical reasoning – have been relatively neglected. Development has been stunted by a narrow focus: Legal Philosophy has yet to take transnationalisation and globalisation seriously enough; it has not broken away from the stranglehold of constricted doctrinal assumptions to encompass talk about law as well as law talk and a much wider range of concepts;90 it can challenge entrenched assumptions that need rethinking; and switch attention from essentialising the concept of law to contributing to the understanding of legal phenomena and ideas. And it can re-establish close relations with front-line legal and other scholarship of all kinds.
After a recent talk about globalisation and law to a multinational audience of young jurists the most interesting feedback was that my criticisms of bad practices seemed justified, but I was too cautious and left them with no positive guidance about how to respond. This was fair comment for that occasion. How might I have met this criticism on the day? Break away from the stranglehold of doctrinal assumptions to encompass explanation of talk about law as well as law talk and a much wider range of concepts; take transnationalisation and globalisation more seriously; challenge entrenched assumptions from a global perspective and test them for ethnocentrism; be very cautious about generalising across borders and traditions, but craft bold hypotheses and theses; look on all ‘global’ generalisations about law and nearly all universal prescriptions with a sceptical eye; theorise Comparative Law and help to make it more central; nurture closer regular relations with frontline legal scholarship; and beware of the gravitational pull of Grand Theory. Always remember that our discipline has a long history but its institutionalisation is still relatively young and immature.91 Be clear about your values and commitments but take belief pluralism seriously; remember Llewellyn’s dictum that technique without values is a menace; values without technique are a mess. Trip lightly up and down ladders of abstraction. Be careful of fashions, but keep an eye on developments in Neuroscience, Cognitive Psychology and Human Biology especially in relation to education, evidence and the general theory of norms.
‘Give every man thine ear, but few thy voice.’ These generalities are a bit too Polonius-like for my taste. To me they seem like common sense or at least horse sense. However, I hope that in this book one can find some more specific constructive suggestions: for example, empirical legal studies and the Law in Context movement offer many models for approaching traditional subjects in a broader way; the chapter on Evidence suggests one way of approaching the practical problems of arguing from evidence in legal contexts without exaggerating the importance of the exclusionary rules (Chapter 14); Atiyah and McAuslan provided examples of rethinking a legal field (Chapter 12); there are suggestions about how to teach particular topics and how to think about legal education more generally (Chapter 16) and how to consider the implications of globalisation for one’s own work.
I have sometimes styled myself ‘a legal nationalist’. I have argued that Law as a discipline deserves respect and a fair share of resources; that its subject matters are pervasive, fascinating and important; that its heritage of concepts, texts, examples and controversies has much to offer other disciplines, and that, provided that it realises its potential as a humanistic discipline, Law should be accorded a more central place in our general culture rather than continue to be hidden away at the back of a few larger book shops.92
