On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview
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Political Jurisprudence

Martin Shapiro

A school of jurisprudence rarely emerges full-blown at a single instant or immediately announces itself as something new and different in the world of legal scholarship. Bentham's Principles of Morals and Legislation, one of the most startlingly original and seminal contributions to modern legal thought, might have been greeted by one of today's omniscient and pinch-minded reviewers, transplanted back to 1789, as 'a rather interesting application of the thought of several minor continental writers to English conditions'. While we can now trace a whole Kantian school of legal theory, it still remains questionable whether Kant himself had a theory of law. Furthermore, the contemporary world does not often find itself blessed with such commanding figures as Bentham and Kant. New intellectual movements are more often the collective work of smaller minds and the products of synthesis, recombination, and shifting application of existing ideas. I believe that such a new movement is afoot in legal theory, and I propose to call it 'political jurisprudence'.

This new movement is essentially an extension of certain elements of sociological jurisprudence and judicial realism combined with the substantive knowledge and methodology of political science. Its foundation is the sociological jurist's premise that law must be understood not as an independent organism but an integral part of the social system. Political jurisprudence is, in one sense, an attempt to advance sociological jurisprudence by greater specialization. It seeks to overcome the rather nebulous and over-general propositions of the earlier movement by concentrating on the specifically political aspects of law's interaction with society and describing the concrete impact of legal arrangements on the distribution of power and rewards among the various elements in a given society.

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