Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, September 6, 2007

Jurisprudence: what's the point?

Steven D. Smith has posted his new paper, Jurisprudence: Beyond Extinction?, in which he observes that the classic jurisprudential debate between natural lawyers and positivists:

can come to seem quite pointless. After all, we can all agree - can't we? - that governments exist, that they issue directives and enact rules, that there are methods or criteria by which officials determine what the directives and rules are. And we can likewise agree that some of these directives and rules are just and good, while others are inefficient, unfair, or downright oppressive. So what is the disagreement about? Is it just that some people - the positivists - want to call the wicked rules "law" (albeit "bad law") while the natural lawyers prefer to withhold that honorific designation? Have generations of jurisprudence really been driven by this dispute over labeling?

Given the pointlessness of this debate, Smith then notes that folks who do jurisprudence have drifted off to other disputes that are not "peculiarly within the province of jurisprudence."

Brian Tamanaha comments on the essay:

Smith is right that jurisprudes don't have any special qualifications to opine on issues of morality or sociology or any particular legal subject, but their general perspective on law and their corpus of knowledge can nevertheless be informatively applied to all sorts of particular problems. Indeed, the relevance of jurisprudence is recognized by many scholars of separate fields, who make an effort to familiarize themselves with jurisprudence precisely for this reason.

https://mirrorofjustice.blogs.com/mirrorofjustice/2007/09/jurisprudence-w.html

Vischer, Rob | Permalink

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