jurisprudence and text review

It is a truism among those who have taught Jurisprudence classes in law school that there is no agreed-upon method to teach the course. One need go no further than this textbook, which I decided to "try out" for Fall 2006, to illustrate this. Though I have only worked through the first few hundred pages of the book so far, it reflects what I consider to be methodological confusion as well as the "disease" from which law professors often suffer: making things more difficult than they need to be in order to understand the issues at hand. In this essay I want to lay out the confusion engendered by this text, while recognizing that it does do something helpful on the way to the confusion. Since I am convinced that we learn far more in life through things done wrong than through things done right, I am looking forward to a very productive semester with this book.

Introducing Jurisprudence

As you begin a class in Jurisprudence, you need to take some time explaining the field, at least as it is understood in the Western tradition. When I teach a difficult and complex field, as jurisprudence is, I start with something easy--like the dictionary. How does the OED define the word? I show the students that the word can be used in three ways in our language: (1) to describe the "science or philosophy of law" itself; (2) an approach to a field of law--e.g., the "jurisprudence of torts"; or (3) the course of a court's decisions on a particular subject--e.g., the Supreme Court's 14th Amendment jurisprudence. Jurisprudence courses almost always focus on (1)--the "science or philosophy of law." What does that mean? Whenever I see the word "philosophy of" a particular subject, I know that clarity may soon depart from the discussion unless I tie it down to something clear. So, I redefine "philosophy" to mean "thinking about." Jurisprudence, then, is thinking about law, or the various ways that scholars have thought about law.

But just as doctors are concerned with health, yet practice medicine, and clergy are concerned with God, yet practice religion, I would argue that legal philosophers may talk about law but often are interested in justice or what is "right." In the 20th century this concern with "the just" or "the right" will be called "critical jurisprudence." For me, one of the purposes of the study of jurisprudence is the study of what constitutes justice in society. Thus, a course on jurisprudence will focus on thinking about law and justice.

I wish that our text/case book had gone into these issues briefly. Instead it just plunges right into Part I and the laws of the Fertile Crescent of the Ancient Near East. Few words of introduction are given. Why, for example, would it start there? I think it is exactly the right place to begin, but little is said by the editors as to their methodological choice. As a matter of fact, I think one of the most useful parts of the book is the first 100 pages--where we are introduced to Ancient Near Eastern and Biblical law codes as well as Attic Greek, Roman, Byzantine and Rabbinic reflection on sacred texts or on the nature of law.

Thinking Historically about Jurisprudence

If you are only going to try to discuss the Western tradition of jurisprudence (an assumption throughout the book, but never really addressed), you should begin at the beginning--in the Ancient Near East, and give copious attention to the codes and the writers on justice. Absent from the list is any mention of Plato's Republic some of the ancient tragedies, such as the Antigone. I think that the discussion in Books 1-4 of the Republic is not only the richest classical discussion on the nature of justice but deals with the central issue in my mind that is still a very "live" issue today: that justice is merely a "convention," the "advantage of the stronger," or, in words that sound familiar to us in 2006, "might makes right." So, that is a quibble, and a fairly significant one, with the book even though I support its basic direction so far.

In Parts II and III the authors "divide up" the world of jurisprudence into analytical and critical jurisprudence, but by the time they have done so they have deposited us in the late 20th century (even though some readings will be from other centuries as well). It is in Part II, beginning at page 99, that the book begins rapidly to fall apart. The editors just entitle the section "Part II: Analytical Jurisprudence," as if it is a natural way of continuing what went on previously. But the editor who put together this part is certainly not the one who put together the first part--indeed, it is as if we enter into a completely different world upon reaching p. 99. There is nothing in Part I which prepares us for the notion that there even exists such a phenomenon as analytical legal philoosphy.

The only thing we are ready for at the end of Part I is "medieval" or "early modern" approaches to the study of the nature of law. And that is precisely where the case book ought to have gone. Granted, there is a reference to St. Augustine at n. 11 on p. 113, but the citation given there is incorrect--a fact that doesn't give you much confidence that any of the four editors really are comfortable dealing with things from that period. And, Aquinas is excerpted later in the book, but is not excerpted very well (i.e., no explantion of the way in which he writes). In short, the four law professors abandon completely the historical method with which they began and launch into a methodological approach to jurisprudence (dividing the world into analytical and critical jurisprudence) that is neither explained, defended or compared with the first part of the book.

Conclusion

Subsequent essays will review what the editors have given us and how I would, in contrast, have proceeded, but suffice it to say for now that the ancient/medieval material is spotty though marginally helpful, and the leap in part II right to the 20th century is neither explained well nor really ties in with the previous material in any way. They gave us the impression that jurisprudence was a field to be approached historically (my opinion, too), but then they took history away from us just when it started to become interesting. Confusion, then, is the only logical reaction that any serious reader can have upon reaching page 99.

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