Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

16. Jurisprudence of Reason and Jurisprudence of Fiat

ROGER COTTERRELL

IT is no longer easy, if it ever was, to find an agreed framework for discussing jurisprudence as a component in the law school undergraduate curriculum. The purpose of this paper is to suggest elements of such a framework and use them to clarify jurisprudence's place in undergraduate education today.

Years ago, with a colleague, I carried out a national survey of the teaching of jurisprudence in British universities. What seemed especially striking was the diversity of views among lecturers about the purposes of jurisprudence, its appropriate content, and how it should be taught.1 A later study found much the same situation.2 On reflection none of this should be surprising. While legal theory, legal philosophy or legal sociology might be considered distinct academic subjects, jurisprudence is not really a subject at all but a pedagogical package, held together by primarily liberal or critical educational objectives. What goes into the package depends on the educational philosophies being pursued.

These philosophies are clearly very varied; matters of controversy that go to the root of the intellectual status of law as a subject of higher education and scholarship. On the whole, undergraduate jurisprudence courses are not aimed at bringing on future legal philosophers or legal sociologists; that is a matter for graduate programmes. In general, undergraduate courses aim to purvey some kind of broader enlightenment within the framework of generalist undergraduate legal education. Their objectives are set within this framework. Controversies around jurisprudence teaching have very closely mirrored controversies about legal education itself.

But a process of change has been occurring. At the beginning of the 1950s jurisprudence was, almost everywhere, a compulsory study for university law students in England and Wales.3 That situation corresponded with the almost complete marginalization of theoretical studies in legal education. Jurisprudence as a package of theoretical approaches to the study of modern legal ideas was used to give intellectual respectability to what was once termed the 'Hessian training' approach to legal education--the equipping of a rather smart elite of legal mercenaries. It allowed most law teachers to pursue the serious business of teaching law while a few others could be licensed to speculate harmlessly about authority, rule and sanction, the law of nature, justice, responsibility and other concepts of law or morality.

As legal education in this country became from the late 1960s more theoretically oriented, the ghetto existence of jurisprudence in the curriculum began to appear anomalous. Jurisprudence as a pedagogical package began to be unwrapped and its contents distributed among or replaced by elements in technical legal subjects. At least the possibility of introducing theory into many legal subjects allowed jurisprudence to be toppled from or refused a compulsory position in many law schools even if often only limited efforts were actually made to provide real substitutes for its educational contribution.

As the broadening of legal education from within4 has continued, jurisprudence as pedagogic package has lacked security even within its educational ghetto. It has often not found allies in the new contextual and critical movements that have sprung up in legal education. Those who might have been thought to be the natural allies of jurisprudence as 'enlightenment', as what Julius Stone5 called the 'lawyer's extraversion', have often stood aside while it has been further marginalized in law teaching.

At the same time, ambivalent attitudes seem to exist among the potential consumers of jurisprudential ideas. Among legal practitioners the traditional view of jurisprudence's irrelevance to the practical life of the law is sometimes countered by minority views that suggest theoretical analysis of law could be or is important. As Haldane Society programmes and publications illustrate, these views often seem to come from left wing practitioners. Equally, the influence of Dworkin in academic legal writings, and the efforts of postmodernist legal scholars to engage with the canon of modern legal philosophical literature, are strongly contrasting illustrations of a substantial interest in jurisprudential literature among academic lawyers who are not specialists in legal theory. Students too, often involve themselves deeply with particular jurisprudential issues once introduced to them. They sometimes debate fiercely and read seri-

____________________
1
R. B.M. Cotterrell and J. C. Woodliffe "'The Teaching of Jurisprudence in British Universities'" ( 1974) 13 Journal of the Society of Public Teachers of Law (n.s.) 73.
2
H. A. Barnett and D. M. Yach "'The Teaching of Jurisprudence and Legal Theory in British Universities and Polytechnics'" ( 1985) 5 Legal Studies151.
3
See R. H. Graveson "'The Teaching of Jurisprudence in England and Wales'" ( 1951-2) 4 Journal of the Legal Education127.
4
Cf. W. Twining "'Some Jobs for Jurisprudence'" ( 1974) 1 British Journal of Law and Society149, 167ff.
5
Legal System and Lawyers' Reasonings 1964, p. 16.

-89-

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