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263
Reinventing Jurisprudential Wheels A Plea for Jurisprudentia Perennis
Nigel Jamieson*
Introduction
From time to time the pursuit of philosophy both relies on, as well as flows along a clearly channelled mainstream of thought held to be philosophia perennis. This concept, traditionally of eternal wisdom now perhaps of scientific advance, provides a collective standard by which awareness of the established truth avoids repetition of past mistakes and wasted effort by re-inventing existing wheels. The collective standard may be seen variously to be classical or modernist, scholastic or experiential, critical or creative, humanist or scientific. The standard is administered institutionally through universities and schools of learning, through conferences, academic publishing, and peer review - although from time to time, the philosophia may be seen to suffer from deficiencies in the methodology of administration. Some argue for a more algorithmic, and others for a more heuristic process for ascertaining and upholding mainstream thought. To the same extent as philosophy, and with most of the advantages and disadvantages attendant upon philosophy's ability to identify and uphold its mainstream thought, jurisprudence already pursues its own jurisprudentia perennis. The lack of enforcing this jurisprudentia perennis shows up sometimes in overlapping and wasted effort, yet at other times the rigorousness of its operation depresses creative enterprise, individual initiative and critical thought. This paper examines the need for a cautiously algorithmic yet heuristically impassioned jurisprudentia perennis that will strike the right homeostatic and methodological balance between collective understanding and individual initiative in the search for justice.
The concept of philosophia perennis - meaning literally the pursuit or love of ageless wisdom - obviously predates the terminologically explicit expression given to it by the 16th century theologian, Augustine Steuch. There are earlier references to theosophia perennis or divine wisdom, from which the later expression may have been derived; but it would not be for another century that the mathematician and philosopher Leibniz (1646-1716) would promote the methodological significance which moderns attribute to the continuing quest for a philosophia perennis. Leibniz1 promoted this quest for a philosophia perennis in a context of no less methodological concern than he promoted a recognition of the need to devise a universal scientific language (characteristica universalis) and universal calculus of reasoning (calculus ratiocinator). Leibniz' life-long quest for a philosophia perennis would be substantiated ironically against his own work.
Senior Lecturer in Law, University of Otago. This paper, subject now only to
minor changes, was first given to the Conference of the
Australian Society of
Legal Philosophy at Melbourne, 13-15 December,
2004.
1 Dissertatio de Arte Combinatoria: a proposal
for reforming logic published before
Leibniz was twenty years of age. Had the proposal been implemented we would have had a seventeenth century forerunner of today's symbolic logic.
264 Otago Law Review (2006) Vol 11 No 2
Newton's dismissive repudiation of Leibniz' invention of the calculus, research into radiation, and the monadic metaphysics of the universe (no less acrimonious than Newton's quarrels over optics with Robert Hooke) would disastrously distort and hold up the advance of physics for several generations.2
The search for some still substantive wisdom, a transcendental view of reality surpassing the mere accumulation of information, the acknowledgement of data, opinion, and even the accustomed wisdom or prevailing world-view, often still continues regardless of the methodological factorisation employed. Overtly unmethodical, the exploration may lean on oriental mysticism, occult mysteries, or divine revelation; or else at another extreme may attempt to reconcile, say science with the humanities, morality with law, the divine with the secular, law with society, the individual with the community. Like Leibniz, and so too perhaps like Pythagoras3 long before Leibniz, the much later Aldous Huxley,4 by his resurrection of this philisophia perennis with which to reconcile apparent opposites, repopularised this "philosophy of philosophies" for moderns. Science is but a humanistic process of conjecture and refutation, sums up Popper.5 "Speak God!" concludes Unger6 in his study of knowledge and politics. First causes, when realised in their ultimate ends, writes Polanyi7 by way of his enquiry into scientific knowledge, express "how a Christian is placed when worshipping God". Gavin Ardley8 revisits and revises old but perhaps not yet outworn relationships between science and religion from Aquinas to Kant.9
Hosts of scholarly as well as not so scholarly names may be added to this list. Plotinus, Augustine, Blavatsky, Yonge, Nasr and many others (both on the fringe and at the centre of what for others may be a pastiche of differently directed
The obvious issue between the two, decided in Newton's favour by the Royal
Society (of which Newton was President) in 1711, would be inventing the
infinitesimal calculus; but wave and corpuscular theories of radiation, together
with differing formulations for energy and views of metaphysics would continue
to distance the two greatest minds of the 17th century. See Bertrand Russell, A
Critical Exposition of the Philosophy of Leibniz (London, Allen & Unwin, 1937), The
Leibniz-Clarke Correspondence: together with extracts from Newton's Principia and
Optics ed., HG Alexander (Manchester, Manchester UP, 1956). At a more popular
level see Michael Hoskin, The Mind of the Scientist (London, British Broadcasting
Corporation, 1971).
See my 'One and the Many' (1984) 5 Otago LR 684, 689.
The Perennial Philosophy (London, Chatto & Windus, 1969).
Conjectures and Refutations (London, Routledge & Kegan Paul, 1972).
Knowledge and Politics (New York, Free Press, 1975) 295.
Personal Knowledge: Towards a Post-Critical Philosophy (London, Routledge & Kegan
Paul, 1973) 405.
Aquinas and Kant: The Foundations of the Modern Sciences (London, Longmans, Green
and Co., 1950).
There is an ancient convention, sometimes now observed and sometimes not, by
which the classics in their being the classics, need no disrespect paid to them by
incidental reference or citation. In this paper, by way of indicating where any
jurisprudentia perennis might be thought to lie, and with exceptions only where
moderns might be confused by today's absence of this standard, I have chosen to
observe the age-old convention of acknowledging the age-old wisdom of the
classics.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 265
endeavours) conceive of a sentimental and mythopoeic desire for uniformity if not conformity of thought. After all, there is more than a strong taint of totalitarianism affecting most attempts to standardise academic excellence. There are grave risks, whether in the requirement to obtain the papal imprimitur of nihil obstat, or in the current governmental grading of academic achievement -no less than in complying with the dictates of the Soviet Writers Union by accrediting its prescriptive range of writers with different species of fur hat.10 There is a sense in which, since most philosophers have been seen to contradict one another, not all of this endeavour to quantify quality can be entirely true, so it may be a relief for some if not a disappointment for others to know that investigating this cosmic conscientiousness - this transcendental although still strongly substantive reality - is not the purpose of this paper.
Perplexities of legal scholarship
The search for substantive wisdom by which to fulfil the conceptual content of a philosophia perennis still continues, as it does for any jurisprudentia or juriscientia modelled on it, but this paper - looking to such advances as those, say made by Linnaeus in natural (later followed by Candolle for botanical, and by Lamarck and Cuvier for animal) true-to-type classification;11 by Boole (1815-64), de Morgan (1806-71), and Peirce (1839-1914) for logic12 - culminating in 1910 with Russell and Whitehead's Principia Mathematica (although one should be reminded that the first classification of arguments was made by Aristotle, and the first use of symbols by at least Pythagoras); and lastly, if for no other reason than to draw a line, if such is proper between the living past and the past present, by von Bertalanffy13 (1928) in what was to become known as general systems theory - attempts to stay focussed on the methodological rather than on the substantive needs of legal philosophy and jurisprudence. These methodological needs may be demonstrated by the existence of certain problems - all too welcome, since ours is the academic age of problem-posing rather than of problem-solving. At least since Hart14 we prefer to think of persistent, if not indeed of perennial problems. And when we tire of those persistent problems we often throw them away, or turn to others by way of diversion - as if to agree with Heraclitas of Ephesus that war could be the father of all things (yet without having any evidence in this case of its giving birth). So we hear almost nothing now of Ryle's once-so-talked-of category mistake, and those who still read Hart's Concept of Law often have little idea of what provoked Hart's work by way of
Reindeer fawn for a foremost writer, marmot for a leading writer, and so down
the line to fluffy tomcat for run-of-the-mill writers: see Vladimir Voinovich, The
Fur Hat (London, Jonathon Cape, 1989).
Polanyi, op. cit., 348-354.
A.H. Basson and D.J. O'Connor, Introduction to Symbolic Logic (London, University
Tutorial Press, 1953) 3-5.
Ludwig von Bertalanffy, General System Theory: Foundations, Development,
Applications (New York, Braziller, 1976).
H.L.A Hart, The Concept of Law (Oxford, Clarendon Press, 1961) 1-17.
266 Otago Law Review (2006) Vol 11 No 2
Ryle's once renowned Concept of Mind.15 Without those who were around in 1949 it is hard to recall the heights to which Ryle's category mistake had become the (admittedly clichéd) talk of (Oxford) town.
Here is just one little example of the breakdown in communication by reason of our lacking any philosophia far less jurisprudentia perennis.
I doubt whether anyone should ever attempt to read Hart without having first immersed oneself in Ryle; or, having first imbued the philosophia perennis on which Hart's work relies, to seriously question whether what he says (for not being a book into which other books are poured16) can be, or even was ever meant by Hart himself to be taken seriously. A great deal of the forcefulness of Hart's Concept of Law results from his explication of what would otherwise be category mistakes by confusing primary with secondary rules (roughly Ryle's distinction between knowing how and knowing that), internal with external statements (Ryle's distinction between dispositions and occurrences and between sensations and observations), rules of recognition with particular rules of law (Ryle's distinction between the reasons for and the causes of action), Hart's pathology of law in terms of formalism and rule-scepticism (Ryle's bogy of mechanism, the ghost in the machine, and the category mistake). By way of intellectual provocation, I have been tempted to classify Hart (with much else of the modernist and linguistic philosophy on which Hart relies as a (highly intellectual but less than scholarly) spoof17, not only on Ryle, but also on many of the established schools of jurisprudence that give credence to Hart's subversive seriousness by simply taking his bait.
To Hart's Concept of Law we attribute a primordial clarity - which is not
Gilbert Ryle, The Concept of Mind (London, Hutchinson, 1949). Both William Twining, in Globalisation and Legal Theory (London, Butterworths, 2000) and, more cautiously Neil Duxbury, inFrederick Pollock and the English Juristic Tradition (Oxford, OUP, 2004) argue for Pollock belonging to a band of Victorian jurists 'who were suspicious of philosophy'. Arguably, HLA Hart belonged to a band of New Elizabethan jurists who were reciprocally enthusiastic about importing philosophy (particularly positivist philosophy) into jurisprudence. It is my submission that in The Concept of Law, HLA Hart wittingly or unwittingly fixed on the philosophy of Gilbert Ryle just as other jurists more overtly imported the philosophy of Ogden and Richards, Wittgenstein, and A.J. Ayer. Nicola Lacey's recent biography of Hart - A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford, OUP, 2004) - does not rule out this relationship between Ryle and Hart (but by Hart's like of philosophy and dislike of law and by his intellectual closeness to Ryle) does more to confirm the relationship. The present writer's informal discussions with Professor Lacey, albeit quick and cursory of this issue, confirm the need for a more intensive exploration of this topic.
"... I have also had a pedagogic aim: I hope that this arrangement [very few references to other writers and very few footnotes] may discourage the belief that a book on legal theory is primarily a book from which one learns what other books contain." (op. cit. Preface viii). Admittedly, there are endnotes - tucked away at page 234 of which is a reference to Ryle's Philosophical Arguments (1945), but not (although I keep on looking for what most obviously should be there) to Ryle's The Concept of Mind from which Hart takes his title The Concept of Law (1961). My 'An Elegy (Long After Gray) on the Passing Gravity of Legal Scholarship' [2004] OtaLawRw 7; (2004) 10 Otago LR 623-630 touches on this.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 267
surprising since it is this same primordial clarity that draws attention to much, if not to all of what Hart writes as being already known. Here is a major thesis in itself, now touched on only superficially; but I would comically break my own plea for a jurisprudentia perennis in the short term if only to substantiate the need for such ajurisprudentia in the long term by finding this thesis to be already proved and common knowledge to all but myself. In any case, it is in admitted ignorance of that much deeper and wider account of Hart's life and work we are privileged to have synchronously delivered at this conference that my own remarks are written.
Three recurrent issues
In the pursuit of legal scholarship, we too share with Hart and others the first recurrent and cardinal issue of, as I would put it, replacing the fear, threat, or curse of the law with a love for the law; to which means of replacing love for fear or threat the cynic (no less than Pilate for justice) is bound to quest a definition for law.18 This is no less so for legal scholarship, as when Pilate questions what is justice, than we might be tempted to do sceptically for the law in the context of determining our legal relations. And the second such recurrent issue for legal scholarship, modifying Hart's own words just a little bit less than the previous instance, is to say that scholarship no less than morality "impose[s] obligations and withdraw[s] certain areas of conduct from the free option of the individual to do as he likes".19 Likewise as for the third recurrent issue of the law, we may expect these scholarly obligations to be formulated (for the sake of teaching clarity, collegial consensus and practical communication) as rules. In other words, there are rules of scholarship just as there are rules of law. It is my opinion that in his Concept of Law, the heretical Hart does much more than any scholar is free "to do as he likes"; and that it is by his (mostly tacit) breach of the rules of scholarship that much of the ageless wisdom of the law is exposed to controversy and put at risk.
As teachers of the law we both observe these rules of legal scholarship ourselves and teach them to our students. We maintain our personal faith in justice and morality as fundamental aims and aspirations of the law. We accord collective recognition by reference and citation to fellow scholars from whom we benefit in advancing our individual ideas. We seek always to substantiate our secondary conclusions by reference to primary sources. We may make grave mistakes and commit horrendous oversights, but we conscientiously try to know the full field in which we endeavour. We learn to recognise formalism and rule-scepticism and other excesses of overweening intellectuality as pathological symptoms of anti-academic behaviour. Above all, we persistently re-evaluate the methodology of our scholarship no less than we test and re-evaluate the foundational bearing-load of our legal system. It then follows for us as legal scholars that there are "certain areas of conduct [withdrawn] from the free option of the individual to do as he likes". This is surely so obvious in terms of what we already profess and practise by way of legal scholarship that it would be "unco guid" to dwell on
Op. cit. 6-7. Op. cit. 7.
268 Otago Law Review (2006) Vol 11 No 2
it. There's really nothing very new, or very legally minded, or very deeply jurisprudential in what Hart is writing about the law - unless of course what he writes, instead of being about the law, is an allegory on the seriously declining state of legal scholarship as evidenced by the allegory.
There is no doubt that H.L. A. Hart is our great hero; and I think that he deserves to be, but in a meta-logical and literary sense that is consistently overlooked by those who mistake for absolutes the same modernist values as those of Ogden and Richards, Wittgenstein, Robinson, Ayer, Hare, and Russell when these are translated into legal values by the work of Frank, Williams, Dias and others in jurisprudence. We make the same mistake of Hart as those who mistook the spoof of Carlyle's Sartor Resartus for a stoutly professorial thesis - the exact opposite of laughing off rather than taking to heart Swift's Gulliver's Travels, Defoe's Moll Flanders, or Thackery's Book of Snobs. Those who once took, if not still take Hart at extreme face-value, miss the covert and at times treacherous message, and mistake the allegorical for the plain meaning. Some use Hart's Concept as a touchstone requiring some investigation of his views to be adduced in substantive corroboration of almost any proffered advance in jurisprudence.20
Persistent issues (of methodology) at their most mundane level
Many may dispute that Ryle's Concept of Mind was ever (consciously or subconsciously) the model for Hart's Concept of Law. Since that may be so, let us look at some more formal and less substantive issue by which legal philosophy suffers for the lack of a more generally recognised philosophia or jurisprudentia perennis. With the pejorative sense we attach to the lowlier species of journalism (lack of data or the substitution of opinion for fact, failures in objective reportage or oversight of primary sources, discursive or diversionary rather than definitive exposition, critique based on propagandistic ideologies, and polemic-hidden agendas relying on emotive rhetoric rather than rational discourse) the distinction we draw is between flights of academic journalism (riding on the existing groundswell of current opinion and conversation) and that ground-breaking scholarship (cutting across the same conversational currents) that is often as arduous to understand and follow as it is to initiate and communicate.
A second case-study could be made, this time of Hohfeldian analysis by which one finds, before going very far, that even in analytic jurisprudence where one might least expect to find frailties of methodology, the subject suffers very badly in review from the shortcomings that mark the lack of any jurisprudentia perennis. Our adversarial attitudes permit a freedom to forms of academic publication under Common Law that are less rigorous than elsewhere, whether in Civil Law systems or in science. Published scholarship in science accepts and distinguishes between research papers and review papers. Terms of reference are important, as are keeping to them. On the other hand, published legal
My correlation of Maine's thesis from status to contract with Hohfeld's analytic jurisprudence through the temporal jurisprudence of Dias was not thought to go far enough by its publishers without an attempted corroboration in terms of Hart. See 'Status to Contract - Refuted or Refined' (1980) 39 Cambridge Law Journal
333,358.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 269
scholarship often seems happy enough to accept discursive dissertations on any legal topic and with very flexible and journalistic if not entirely idiosyncratic terms of reference. In legal publishing, for example, there seems no discernable difference in content between publications calling themselves Law Journals and those calling themselves Law Reviews. Taking the same point of review both deeper and further, the general consensus of legal scholarship concludes that law-book reviews are shoddily done21 - and this to the detriment of the law-book's author, publisher, reviewer, reader, the law review in which the law-book review appears, not to mention to legal scholarship at large.
No introduction to Hohfeldian analysis could claim to be comprehensive that did not give explicit credit to the long list of contributors to the subject. This might be expected especially of someone22 writing an introduction to what is being proffered as a re-edition of a celebrated classic text. The ongoing continuity of legal scholarship between past and present is especially relevant to establishing the continuing relevance and applicability of Hohfeld's original scholarship. Von Savigny is referred to by Simmonds for his work on Jural Relations, but not - amid hosts of unmentioned warriors in the field of legal analysis - Bentham,23 Salmond,24 Coode,25 Kocourek,26 Williams,27 Dias,28 Kanger29 and Pörn.30 If there are any industrial production-lines to be beneficially promoted by REA, PBRF, or their methodological equivalents for governmental review in legal scholarship, analytic jurisprudence should by its very methodological nature certainly aspire to be one of the most fruitful.
One would similarly expect a sense of heritage, as much from Stanford and Yale towards upholding Hohfeld, as from any Cambridge don reviewing Hohfeld towards Dias. It was Dias who from Magdalene College first correlated Hohfeldian analysis with temporal jurisprudence. True to say, and by way of academic apology, temporal jurisprudence may never yet have started to resonate
24 John W. Salmond, First Principles of Jurisprudence (London, Stevens & Haynes, 1893).
26 Albert Kocourek, Jural Relations (Indianapolis, Bobbs-Merrill, 1927, 2nd ed., 1928).
29 S. Kanger,
New Foundations for Ethical Theory (Stockholm, Almquist & Wiksell,
1957).
30 Ingmar Pörn, The Logic of Power
(Oxford, Blackwell, 1970).
270 Otago Law Review (2006) Vol 11 No 2
among the schoolmen. Legal theory is barely yet Newtonian far less Einsteinian. Yet time and place, in terms of legal history as well as legal geography, are as important to the legal theorist as Plato's description of the lawyer who, by keeping always one eye on the clock, must learn to draft the re-entry co-ordinates for a legal classic that are no less critical for society than are the co-ordinates for re-entry expected of the astrophysicist.
By way of contrast with those who are now unhappily authorities on the subject of Hohf eldian analysis - long-term leaders in the cause of analytic jurisprudence such as Bentham, Salmond, Kocourek, Williams (all of whose works are blithely ignored) - the same writer refers instead to many who, being still very much around, are happily not yet authorities, but who, writing only peripherally on the work of Hohfeld, are never likely, either happily or unhappily, to achieve that status on this subject. I shall spare those scholars any further embarrassment than that to which they are already exposed. Perhaps in their own time and in their own way - if not in response to this present challenge - they will out-Hohfeld even Hohfeld.
Misfeasance in scholarship is invariably also a malfeasance. Re-inventing the same juristic wheels may be a waste of the would-be inventor's time, a disclosure of his ignorance or worse, and a great source of confusion to others, but it is also an affront to scholars and scholarship. Take Simmond's Central Issues in Jurisprudence subtitled Justice, Law and Rights31 for example. Here that author returns - either consciously without giving credit, or unwittingly through ignorance - to the three paramount issues of Justice, Law, and Rights, presented over a century ago as a categorisation of the subject by Salmond in his First Elements of Jurisprudence. History repeats itself, most assuredly for academics less respectful than they should be of academic citation. In this paper I chose to avoid mentioning some of the greater scandals that have perplexed legal book publication. Some of them have gone to Court and others have been settled by arbitration or negotiation; but all of which might have been avoided by paying more attention either, as some would put it extrinsically, to the science or methodology or meta-logic of law, or as others would have it by way of a more internal self-discipline, to the rules and principles of legal scholarship.
A third example, if such is needed by those who think in triads rather than in dyads or monads, may be the ancient instance of the so-called liar paradox. Indeed it is the typical characteristic of ancient topics to demonstrate the difficulty of defining their terms of reference and keeping to their universe of discourse. Formal scholarship is hard put to deal with persistent issues - is that another underlying reason why Hart chose the allegorical task of exchanging purportedly new lamps for old? To complete the triad, I refer to a rather delightful aside on that hoary old issue of the liar paradox recently published by Michael Pantazakos.32 Now as an aside to a hoary old issue, a carefully crafted aside to clearly identified and current issues, this piece keeps its scholastic integrity. Now and then the piece sails close to the wind - as if Felix Cohen were but the first to pose the question, only fifty years ago, are lawyers liars - but by and large it
31 London, Sweet & Maxwell, 1986, 2nd ed., 2002.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 271
sticks to its terms of reference within its theological universe of discourse (faith, belief, trust, and truth) by which to respond to the trashing process of Critical Legal Studies. Nowise does the critique exhaust the topic, but it fulfils its limited purpose, and (despite all the scholastic endeavour on this hoary old question to which one would have wished for a Pantazakian response) is delightfully complete. It will remain for a long time as it is - a delightful vignette on the liar paradox for the law. Comprehensiveness as an end in itself has a deadening effect on jurisprudence as both the North American genre of law review article and the splurge of lengthening Common Law juridical decisions demonstrate.
Coping with persistent issues of legal scholarship
For myself no less than Hart, examples of recurrent issues by which to prove the existence of persistent questions come in threes. Let me accept at the outset, however, that although the logical criteria of independence, consistency, and completeness contribute a great deal to any quest for a jurisprudentia perennis, each of those criteria can be satisfied within the terms of reference required of any juristic endeavour, first by following the long-established formal logic for categorisation, and otherwise simply by clear communication. An article or paper or book or lecture has only to set its own universe of discourse or explicit terms of reference (in itself a task of classificatory logic), and stick by those terms and stay within and fulfil that discourse to keep to the accepted rules of legal scholarship. Scholarship, no less than law or morality, imposes obligations.
The trouble with any literary genre, especially with any academic introduction which is meant to excite, enthuse, stimulate, and whet the appetite of any scholarly bon viveur, is not any lack of comprehensiveness (unless that be claimed) but simply in sticking to explicit terms of reference. There is no more room for criticism in sticking to one's explicit terms of reference than there is when introducing to some chance acquaintance one's own bosom friend. One is not obliged to enter into compurgation for one's bosom friend to any chance acquaintance. Formal and public introductions given to great works of legal scholarship are obviously different, and, if to be restricted or limited, must be so dealt with on most explicit terms. Above all, the classics should be introduced by classicists - those scholars who, despite their discernment of the frailties of the ancients, are nevertheless committed to expounding the continuance of the classical standard. The classics are not dead bones to be exhumed, scraped off, and reburied by successive teams of scholastic undertakers. They are either living texts that fundamentally still speak for themselves, or else they are not classics whatsoever. Mistaken introductions, like misunderstood acquaintanceships, only marginalise real life relationships.33
33 As A.R. Burn writes in his introduction to the Penguin edition of Herodotus The
Histories (1972) 23, fn 1, "...the excess of Quellenkritik are mainly due to the Ph D system, which makes a high salary depend on producing original work. In a field as well-trodden as that of classical literature, to require a young scholar to be original is as inhumane as requiring him to be a humorist, or a poet; a truly original theory has a high probability of being a perverse theory, and a branch of study that has not been well worked over is likely to be one that is not worth much attention." It will be a moot point as to whether this stricture applies as much
272 Otago Law Review (2006) Vol 11 No 2
Here, in my opinion, is just another small example of how the lack of a juisprudentia perennis can limit the fullest possible measure of juristic understanding. The same lack can also give rise to confusion, to (sometimes acrimonious) argument and to (sometimes arid) disputation, together with a tendency to pass off a fairly lowly but abstruse level of academic chatter and thinking aloud as serious scholarship at one extreme and, at the opposite extreme, the primordial clarity attributed to passing off the rougher, ruder but more innovative work of others now in a more popular form as being one's own serious scholarship.
This happens all to the detriment of legal philosophy whether construed as prudentia or scientia. In the face of such problems, whatever speculum juris fails to reflect the reality of universal as well as specialised scholarship risks grave misunderstandings at a scholastic level and generates (often acrimoniously expressed) confusion. Both could be lessened if not avoided altogether by the methodological expedient of simple citation and collegial recognition; otherwise the hoodwinking process of exchanging new lamps for old denigrates scholarship and detracts from the fullest appreciation being given to any academic advance.
Renewing old lamps
Milsom notes 'an uncomfortable theory that once any body of law can be set out in a textbook, it is incapable of a true response'.34 In other words - any such textbook-treated body of law has ceased to be an issue. This textbook transformation is critically important to our own age as being one that focuses and concentrates almost solely on problems and issues. For example, Milsom himself begins his Historical Foundations of the Common Law by saying "[t]he first problem is what starts a legal system off" and "the second problem: how has it been so versatile and durable"35; but there are no more grounds for this than the fashionable assumption of our own times that significance relies on issues and problems. Nevertheless, there are more ways of killing off scholarly issues than, as Milsom says, by reducing them to textbook format. It is really quite deplorable among academics, how one up-and-coming generation of scholars will so readily if not altogether savagely turn their backs on a previous generation of scholars, and even upon those who with all due seriousness and sincerity taught them the elements of their trade, and worse still that they can so (often gleefully) dismantle and destroy the ladders by which they made their own ascent. And it is no secret that scholarship is being promoted among diverse governmental agencies, as it always has been among the Philistines, as a highly competitive, careerist, and cutthroat, warring enterprise. Defoe's Battle of the Books between classicists and moderns was far more moderate by comparison. Short-term management - and no one can tell how short the term may be before the final collapse of scholarship as we know it takes place - looks only for short-term returns. Abstract legal theory,
now to law as classics under the post-modern doctoral requirements for academic scholarship - as much a moot point as to whether there can continue to be any classics, properly so-called, in legal writing.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 273
embodied in long-established constitutional conventions such as the Coronation Oath, the Separation of Powers, and the Rule of Law, loses ground to short-term and often continuous restructuring; and the Humanities (if not indeed underpinning the acceptance of the former conventions), stand next-in-line to falling victim to the barbarism of today's cost-cutting scholarship - which actually spends more money than it saves in pretending we are better off. Sine theoria caecum esse practicum is as every bit as true as sine historia caecum esse jurisprudentium - and never more than ever before is needed a jurisprudentia perennis.
Confusion caused by the case-only method, boredom brought about by real-life experience withheld, the over-indulgence of imagination as a result of sensual deprivation, school-room exhaustion through over-exposure to the issues, and the temptation to trade off intellectual freedom for academic status all take their toll. Much of today's juristic discourse - on rights, interests and whatever (although few give more than token emphasis to responsibilities) - demonstrates a tedious garrulousness by which to pass itself off as philosophic discourse. Apart from the process of recording one's self-education, it is very debatable whether such thinking aloud really deserves to be written down. Keeping up with collegial conversation on topical issues provides a more succinct, reasoned, and disciplined response - as one would expect of any introduction to a classic - but the backing given to Hohfeldian analysis by way of all too topical references and up-to-date citations frequently comes up with no more than a form of thinking if not just for oneself then no better collectively aloud. Could legal scholarship since so much of the heroic research of Blackstone, Bentham, Dicey, Salmond, Hohfeld, and Allen be said to have lost its way?
The history of all such classic expositions will not be proved by any solely present measure of their topicality, especially if that topicality is peripheral and marginal to their heroic main thesis. As Ardley writes, the standard of the purely present provokes only "the Procrustean standpoint". If the appreciation and recognition now given to their work in establishing heritage values is merely peripheral to the main thrust of today's legal scholarship, then some prescriptive rather than just descriptive job needs be done. First we need to know that our reportage and exposition of the so-called old masters is accurate. Then we are responsible for establishing credible means of critique by which to bridge past and present. Finally we are called to reconcile whatever may be inconsistent between past and present views, and this done cautiously, rationally, and with every admission of temporal self-interest. We may indeed end with either a revised outlook or else outlawed regard for the old masters of legal theory and philosophy. And if today's strident opposition to their established heritage values has been overtaken only by faint praise, better to decry the faintness of that praise than to diagnose any great change of heart. Compromising the truth always results in far worse consequences than outright opposition. In scholarship as in everything else, one should always suspect the lukewarm.
It was first Gilson,36 so Ardley37 acknowledges, who, in their critique of the
36 Etienne Gilson, The Unity of Philosophical Experience (San Francisco, Ignatius, 1999).
274 Otago Law Review (2006) Vol 11 No 2
modern sciences, bemoaned the lack of a philosophia perennis for philosophy, which is the same lack - of keeping a close and consistent account of scholarly advances - that pertains to legal scholarship. One would have thought that keeping careful tabs on the development of ideas would have come naturally to scholars; but the history of science proves otherwise, and even the close concern for compilation, consolidation, and codification that lawyers bring with them to legal scholarship, will not compensate for the lack of a philosophia perennis for law. In its place, we risk only fads and fashions, such as the growing relativism by which one replaces, say a system of rights with a representation of interests, or say applies highly developed systems of critique to reality without any great faith or committed belief in the reality being critiqued.
Despite Milsom's depreciation of textbooks for their killing off debate about the law - a depreciation which some researchers and governmental programmes of academic evaluation echo and uphold - the legal textbook comes closest to providing a philosophia perennis for the pedagogic study of any body of law. Ever since Roscoe Pound spoiled this systematic and scientific approach by his introduction of the case-law method38, legal systems have tended to go round in circles without the benefit of leading and eventually classic texts by which to incorporate and proclaim established bodies of law. Without the equivalent of a Salmond on Torts, a Cheshire and Fifoot on Contract, and a Craies or a Maxwell on Statutes, Anglo-American jurisprudence continues to be blown around the mulberry bush by a whirlwind of often radically rebellious and frequently contradictory judicial dicta. As has been truly said,39 the judiciary is all the worse for law reviews. These more and more emphasise the ephemeral and promote the provocative. From student days and upwards, whole legal systems lose their bearings in the resultant mush of raw legal materials. It soon becomes impossible to resurrect any recognisable textbook out of this morass. What fills the vacuum becomes partial, personal, coat-tail clinging, and interest-only text produced by the often disparate effort of many differently-thinking individuals. With or without careful editing, this disparate effort produces its own species of fragmentation. Still, as a remembrance of things past, we thankfully have Bennion40 as successor to Craies41 and Maxwell42 in statute law; while Dias in Jurisprudence,43 by backing up successive editions of that textbook with his earlier but woefully overlooked Bibliography,44 comes closest to providing a philosophia perennis for any current body of law.
39 John Gava, op. cit., if
truly speaking tongue-in-cheek?
40 F.A.R. Bennion,
Statutory Interpretation - A Code (London, Butterworths, 2002).
43 R.W.M. Dias, Jurisprudence
(London, Butterworths, 5th ed.,
1985).
44 R.W.M. Dias, A Bibliography of
Jurisprudence (London, Butterworths, 1979).
Reinventing Jurisprudential Wheels: A Plea for Jurisprudent^ Verennis 275
Of course any proposal to institute a philosophia perennis for law can be disparaged, no less than promoting the rigorousness of any methodological change can be disparaged for being "formalist". Without having an explicit philosophia perennis for law, however, there seems to be on the one hand an arbitrariness and uncertainty, and on the other hand an overweening self-confidence as if what we ourselves have first heard of is bound to be new. Here is the mythopoeic frame of mind by which, even the most classical of all historians, Herodotus, would presume that whatever had happened outside of his own time was accordingly unimportant.45 Sometimes we betray ourselves into saying the same sort of thing by canvassing current support, or as it may be, principally the patronage of our contemporaries. That simply will not do by way of substantiating a place for any work of legal theory or philosophy in the jurisprudentia perennis.
Supporting existing strategies
Existing strategies for the development, either implicitly or explicitly, of a jurisprudentia perennis are already so strongly established in academic arenas as to be taken for granted. The collective perception of an underlying and ageless wisdom associated with the administration of law and the pursuit of justice is conveyed through the teaching and attainment of academic qualifications in jurisprudence; through the recognition of a culturally transcendent heritage of Hebraic-Graeco-Roman no less than other corresponding values in which the jurist must be immersed; through the studious reading, writing, reviewing and publishing of collegially addressed papers; through the participation in conferences such as this one where ideas are shared, debated, tested, critiqued, and evaluated; as through many other formal as well as informal ways.
We all know our own trade, but because the means may sometimes be mistaken for the end no less than the legal positivist, believing that one communicates to survive, reverses the role of the natural lawyer who survives in order to communicate, there is a need always to reinvigorate what otherwise by itself would become a very misleading tedium whereby success and acknowledged academic status in managing the formal process is equated with fulfilling the desired end. Thus publication becomes an end in itself, or worse still a means of acquiring academic fame and fortune, scholastic credentials close off rather than open up new fields of endeavour, and a remarkably wide divide soon opens up between legal theory and legal practice, between the legal process and securing justice, between heritage values and current values, between abstract legal scholarship and pragmatic commonsense. We fail to read the signs of the times or to discern an opening gulf between the professed vocation for justice and the privileges that accrue from engaging in such a privileged although demanding occupation. The very wisdom that we set out to explore, discover, and uphold, declines and languishes in the face of apparent apathy towards absolutes -particularly those of truth and justice.
45 By relying on only first hand accounts and eye-witness reports, the testimony
entirely of his contemporaries, Herodotus was typically a legal rather than a general historian. General historians tend towards objectivity by distancing themselves in both time and space from the subject matter of their discourse.
276 Otago Law Review (2006) Vol 11 No 2
You may pick from this that I rest uneasy with the way in which our profession of faith in centuries of legal philosophy is at odds with our current ability to convince those who rely on us to practise what we preach. This is the context of concern in which I think as professed exponents of legal philosophy we have some responsibility to set our own scholastic house in order. One way of doing so, of correlating law with justice and truth with legal process no less than current with heritage values, is to focus on the needful methodology for establishing a more explicit recognition for a jurisprudentia perennis.
If anything, this jurisprudentia - or jurisscientia should you care to call it so - is some sort of meta-logic for jurisprudential discourse. Much of it is based on the metalogic underlying the administration of scholarship, but there may be some justification for imposing more explicit if not more rigorous regimes for those accepting responsibility for law and order, the administration of justice, and the promulgation of ideas concerning these high ideals. At the same time there will be other researchers continuing to investigate the substantive relationships between truth, wisdom, and justice, without which there is really no point to perfecting any jurisprudential methodology. Let me first be more specific about the problems currently presented by our jurisprudential discourse
In not more than a few words, the objective of any more explicit jurisprudentia perennis is to discern and distinguish invalid from valid jurisprudential discourse. In terms of satisfying the so-called decision problem in logic at large, the criteria for doing so may be identified as being those required to meet the criteria of completeness, consistency, and independence. Highly innovative, creative, personally experiential, or stylistically idiosyncratic contributions may be hard to judge. If one takes the lowlier end of scholastic contribution by way of case notes, book reviews, and review articles, however, these are not only often poorly done, but scantily rather than seriously regarded. For example, any review article of a topic or of a field needs to be complete. The review needs to be consistent. The review needs to be able to stand-alone or be independent. To secure completeness the reviewed topic may be explicitly limited. To achieve consistency certain speculative or hypothetical premises may have to be acknowledged to be as yet unascertained. Incorporation by reference or citation may be needed both for completeness and independence.
There are two levels at which the need or desirability of a more stringent methodology, modelled on the concept of a philosophia perennis, may be claimed for the philosophy of law. The first is formal, based on a more systematic review and classificatory process for legal thinking. With some exceptions, Anglo-American jurisprudence tends to avoid or to disclaim this level of formality -one that in European or Continental jurisprudence might aspire to be known as the science of law.46 The second level at which the need for a more stringent methodology may be claimed is substantive, based on making a response to the largely ideological content. This response pivots on critique and evaluation. By and large, the first formal process is concerned with reportage, cataloguing, and exposition (which some may dismiss as boringly archival work) whereas the second is more interestingly functional, concerned as it is, either adversarially
46 In many ways, this paper follows on from a much earlier one of mine on 'Legal
Classification and the Science of Law', [1988] OtaLawRw 3; (1988) 6 Otago LR 550, 562.
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 277
or inquisitorially, with evaluating the jurisprudential content. Choosing a biological parallel, it is the difference between anatomy and physiology, although as every biologist learns there is a close and intimate interface between form and function that makes anatomy and physiology reciprocal functions of the same reality.
When we consider how each of these levels would work, we see that in a rough and ready way we already divide jurisprudence up into various schools - for instance the historical school, the sociological school, the positivist school, and so on - just as we classify law into various fields, such as criminal law, property law, torts and contracts (or should it be, in terms of their substantive content, tort and contract). Taxonomy, or the science of naming, clearly has something to say about whether we teach constitutional history, constitutional law, public law, administrative law, or simply civics; about whether we refer to The Law of the Constitution47 (as Dicey did) or The Law and the Constitution48 (as did Jennings); no less than we fuse (or is it confuse) law with equity, and so go on to deal with wills and trusts as if they had been (bastard) offspring of the Common Law. How we classify and reclassify, no less than how we name and rename things, is going to have a most forceful input into the legal process.
This apparently arid plea for more formality might be a disappointment to some of us. Partly because first things should be first, partly because without formal anatomy there is no means for physiological function, but no less otherwise because the abstract, often vaporous and idealistic form of things has been upheld by countless philosophers to hold more significance than their more material and concrete content, we nevertheless give this plea first priority. This will be a disappointment perhaps more intensely felt in Common Law circles where formality is often openly deplored as formalism, by many of its leading, and dare I say most offending jurists. On this point may I just quote two paragraphs from my earlier paper on "Legal Classification and the Science of Law"49. There I quoted Sir John Salmond as complaining that insofar as "English law possesses no received and authentic scheme of orderly arrangement", Common Lawyers have shown themselves to be "too tolerant of chaos". Salmond then concluded that despite "...the opposite extreme ...of attaching undue importance to the element of form... [i]n the classification of legal principles the requirements of practical convenience must prevail over abstract theory". I suggest Salmond confused "form" with "forms", no less than the Common Law has at various times demonstrated a somewhat bureaucratic concern for equating formal writs and precedents of pleadings with due process. In every case "the requirements of practical convenience must prevail", but not, as Salmond says "over those of abstract theory" or "the classification of legal principles".
The concept and theory of form is as distinct from those of forms as the concept of contract is from contracts. The largely jurisprudential but formal concept of contract, or similarly that of tort, or that of constitutional or administrative law is needed to regulate and evaluate, supervise and appraise the individual forms
47 A.V. Dicey, Law of the Constitution (London, Macmillan, 1st ed., 1885; 10th ed., 1959).
49 Op. cit. 550.
278 Otago Law Review (2006) Vol 11 No 2
giving expression to these concepts. It was Sir Henry Maine who saw the Common Law's lack of concern for classification to arise from its reliance on legal fiction. By legal fiction the hypothetical jurisprudence of outright pretence (as often allegorical and figurative reasoning) is made to equate with reality by conflating two different levels of thought. This, as Maine concluded, constitutes "the greatest of obstacles to symmetrical classification" to meet the need for the recognition of some formal and systematic process for the reportage and recording, the naming, the cataloguing and classifying of all those exploratory endeavours that go towards making jurisprudence. The discoveries and advances may be more slight in the long term than they appear in the short term, the apparently unsuccessful and often unrecognised explorations may be more valuable in the long term than some of the more instantly recognisable discoveries in the short term. Indeed, it is often not until we begin to classify our information that we realize its significance. It is not for nothing that so-called "classified information" evokes the most curiosity. Why should it be any different for intellectual curiosity?
Extending existing strategies
Reinventing Jurisprudential Wheels: A Plea for Jurisprudentia Perennis 279
7. A refusal to compromise the high ideals of legal philosophy and jurisprudence to suit the short-term fads and fashions of the day.
Lastly at a grassroots level, let me consider how some people feel about this lack of any jurisprudentia perennis, especially those legal scholars who take their work seriously. How do they express their feelings about the consequences of having no jurisprudentia perennis - the lack of any formal means of systemising information and supporting law's systematic critique and review? By their diagnosis of those arbitrary and often idiosyncratic processes accorded to law book reviews, the general lack of scholastic seriousness is either completely misconceived or else self-evident. One has only to read the prevailing literature52 decrying the arbitrariness and lack of seriousness attending law-book reviews to find fair expression of the difficulties that beset the lack of a jurisprudentia perennis. I dare to speculate that the same lack of seriousness rubs off from the readers of secondary to the makers of primary sources. Many of today's judicial decisions53 and much of today's parliamentary legislation54 are in as much need of a jurisprudentia perennis as are the lowliest of case-notes and law-book reviews.
Graham E. Parker, 'A Field Guide to Book Reviewing', (1967) 20 Journal of Legal Education 169. Parker reaches the same conclusion held by that most prolific and wide-ranging of book reviewers, Wolfgang Friedmann, (113 book reviews to 168 law review articles and 37 books and pamphlets): see supra n. 21. See also David F. Cavers, 'Book Reviews in Law Reviews: An Endangered Species' (1979) 77 Michigan Law Review, 325. Those who have put the law review on trial, such as Fred Rodell for his 'Goodbye to Law Review', have barely survived their own ensuing trial - usually by ordeal. As with Rodell's Woe Unto Ye Lawyers today's reception is belated, with frequent reprints, see (1999) 73 ALJ 793, together with John Gava, Commentary (idem 597). Frequently lauded now as "the most famous law article in the Common Law World" there is always the possibility that Rodell's paper is merely the most notorious; see more recently John Gava, 'Law Reviews: Good for Judges, Bad for Law Schools?' (2002) 26 Melbourne University Law Review, 561; so too, The Symposium on the Canadian Law Review Experience, with Donna Greschner 's 'Law Reviews as Cultural Narrative', (2001) 39 Alberta Law Review, 616, is too good to miss.
See The Hon. Justice Dyson Hey don, 'Judicial Activism and the Death of the Rule of Law' (2003) 47 Quadrant 9; a fully footnoted version appears at [2004] OtaLawRw 2; (2004) 10 Otago LR 493; Lord Rodger of Earlsferry, 'What Are Appeal Courts For?' [2004] OtaLawRw 3; (2004) 10 Otago LR 517; John Smillie 'Formalism, Fairness and Efficiency: Civil Adjudication in New Zealand' (1996) NZ Law Review 254; John Smillie, 'Certainty and Civil Obligation' [2000] OtaLawRw 4; (2000) 9 Otago LR 633.
See my 'Towards a Systematic Statute Law' [1976] OtaLawRw 6; (1976) 3 Otago LR 543; 'Different Styles of Statutory Expression' [1995] OtaLawRw 3; (1995) 8 Otago LR 351; 'Legislation Through the Millennial Looking Glass' [2000] OtaLawRw 8; (2000) 9 Otago LR 713-730.
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