Patterns of American Jurisprudence

Patterns of American Jurisprudence

Patterns of American Jurisprudence

Patterns of American Jurisprudence

Synopsis

This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.

Excerpt

What is jurisprudence? More or less anyone who has studied or taught the subject will have asked, or have been asked, this question, and they will know that it cannot satisfactorily be met with a stock answer. Many different types of intellectual endeavour go under the name of jurisprudence. a characterization of the subject which encompasses all these different types of endeavour will be so broad and so bland as to be worthless. the word jurisprudence is shorthand for a multitude of ideas; and there can be no universal consensus concerning what makes an idea 'jurisprudential'.

The term, 'American jurisprudence' is hardly less ambiguous. Not only does it denote different things for different people, but those who have attempted to explain and develop the subject have tended to rely on certain key concepts and themes in order to represent a variety of ideas about law. Terms like 'formalism' and 'realism' are rarely used in an homogeneous fashion: every expositor of American jurisprudence seems to have his or her own personal slant on what these and other terms signify. Lack of agreement over such terms--whether, for example, it is correct to characterize pre-realist jurisprudence as formalist, scientist, conceptualist, or whatever--and over what they might be taken to mean is something to which those engaged in American jurisprudence seem resigned. Like anyone faced with the task of explaining jurisprudence, those who concern themselves with American jurisprudence in particular recognize the necessity of thinking and writing in shorthand. a word like formalism will inevitably come to represent a variety of ideas about law, and disagreements are bound to arise over ways in which the word is understood.

There is plenty of shorthand to be found in this book; and there are many points at which particular interpretations and applications of this shorthand might be contested. For some reader, for example, the exposition of formalism presented in Chapter 1 is likely to provoke nothing if not disagreement. But the point of this book is not to suggest that there is a definite set of ideas about law which any particular jurisprudential concept or theme ought properly to denote. the premiss of the book, rather, is that the ways in which jurisprudential concepts and themes are interpreted and applied influence the manner in which ideas about law come to be understood historically. the primary objective of this book, in other words, is not to explore generally the problems that might arise from . . .

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