I

When the Chair of Jurisprudence was established at Corpus Christi College, Oxford in 1869, it was envisaged that the Professor of Jurisprudence shall lecture ‘on the history of laws and the comparative jurisprudence of different nations’.^{Footnote 1} The job description rather nicely fit the work of its first incumbent, Sir Henry Maine. Maine’s immediate successor, Sir Frederick Pollock—in principle, at least—approved of Maine’s historical and comparative method.^{Footnote 2} And the work of Pollock’s successor, Sir Paul Vinogradoff was steeped in it. Fast forward by a century and one finds that history is no longer integral to the kind jurisprudence coming out of Oxford. The brief genealogy of the use of history in the work of incumbents of the Oxford chair is also by and large a dioramic representation of the extent to which legal history has moved away from the dominant stream of general jurisprudence in the Anglophone world. The editors of Law in Theory and History: New Essays on a Neglected Dialogue want to call a stop to this parting of ways—there is something ‘awry’ and ‘misleading’ in this approach to legal theory ‘uninformed by history’ as one of them puts it (23)—and find a way of yoking history back to jurisprudence by renewing the neglected dialogue between the two. Maine’s ‘historical jurisprudence’, however, figures only marginally.

II

The volume is an important contribution to the topic, which has seen something of a resurgence lately and one from which both legal theorists and legal historians will greatly benefit. The essays in the volume emerge from a conference ‘Legal Theory and Legal History: A Neglected Dialogue?’ held at Queen Mary University of London in 2013. The sixteen essays are divided into four parts preceded by an editors’ preface and followed by an afterword by Brian Tamanaha (‘How History bears on Jurisprudence’) which provides an instructive survey of all the essays in the volume except for those in Part I, which were written later. Part I, titled Introducing the Dialogue between Legal Theory and Legal History, comprises four essays. The first two are contributions by the editors, Michael Lobban (‘Legal Theory and Legal History: Prospects for Dialogue’) and Maksymilian Del Mar (‘Beyond Universality, Particularity, Necessity and Contingency: On Collaboration between Legal Theory and Legal History’) which ‘set the scene for the entire collection’ (vi); the other two essays written by Fernanda Pirie (‘Legal Theory and Legal History: A View from Anthropology’) and Sionaidh Douglas-Scott (‘Legal Theory and Legal History: Which Legal Theory?’) partly comment on the first two essays and partly offer substantive arguments.

Part II on Methodology and Historiography comprises four essays written by Christopher Tomlins (‘Historicism and Materiality in Legal Theory’), Jonathan Gorman (‘Legal Consciousness: A Metahistory’), the co-editor, Maksymilian Del Mar (‘Modelling Law Diachronically: Temporal Variability in Legal Theory’), and John Bell (‘Is Comparative Law Necessary for Legal Theory?’). Part III, entitled the History of Theory, features essays by Roger Cotterrell (‘Reading Juristic Theories in and Beyond Historical Context: The Case of Lundstedt’s Swedish Legal Realism‘), Dan Priel & Charles Barzun (‘Legal Realism and Natural Law‘), Ian Williams (‘The Role of Rules: Legal Maxims in Early-modern Common Law Principle and Practice‘), and the co-editor, Michael Lobban (‘Theory in History: Positivism, Natural Law and Conjectural History in Seventeenth- and Eighteenth-Century English Legal Thought’). Part IV on the Uses and Limits of Theory in History features essays by Pierre Brunet & Jean-Louis Halpérin (‘Legal History and Legal Theory Shaking Hands: Towards a Gentleman’s Agreement About a Definition of the State’), Joshua Getzler (‘Law, Self Interest and the Smithian Conscience’), Stephen Waddams (‘The Practical Dimension of Legal Reasoning’), and Steve Hedley (‘Corrective Justice—An Idea Whose Time has Gone’).

Some of the essays tackle questions on the ground floor, as it were, of interactions between legal theory and legal history. Others offer metatheoretical reflections on legal theory and legal history. Some combine the two. Given that the essays offer a rich variety of perspectives and do not unfold according to a master plan, it would be ill advised for a reviewer to impose an artificial order on them to be able to discuss the whole in one go, which, incidentally, happens to be one of the errors legal theorists are charged with in some of the essays. Instead, the discussion that follows will revolve primarily around some key themes picked out from the editors’ essays and essays commenting on them in Part I revolving around the method and aims of legal theory. Later in the review, I will also connect this theme to essays by John Bell, Steve Hedley, and Ian Williams.

Lobban’s essay carefully differentiates between ‘the concept of law’ and ‘other legal concepts’ (9). This distinction, as we shall see later, is a crucial one. As for the concept of law, Lobban, citing Kelsen’s argument that any sociological study of law presupposes the concept of law as defined by general jurisprudence, points out that, ‘the jurist is engaged in the philosophical task of clarifying concepts abstracted from all context’ (4). Such theories of Hart and Kelsen, according to Lobban, are ‘stipulative’, and since they give only the most general indications of the activity called law, they are ‘therefore only a start’ which invites further detailed study (7). Analytical jurisprudence therefore ‘gives us theoretical tools in understanding the concept of law, but they are only tools for further work’ by which he means work of the empirical kind (9). Lobban argues that legal theorists’ ‘unhistoricized or single definition (or “central case”) of law’ overlooks multiple ways of conceptualizing the law which ‘undermines the status of their insights as offering a universal truth’ (8). Turning to other legal concepts—contracts, torts etc.—Lobban points out that the analytical tradition supposes that ‘legal doctrine is developed by jurists, uncovering timeless truths and facilitating their application to modern problems’ (10). But this is problematic since ‘legal theorists’, Lobban warns us, ‘have yet to decode an immanent set of structures and principles, whether in tort law, public law, criminal law or even contract law’ (15).

Del Mar is sceptical about the philosopher’s outlook that informs the method of the legal theorist, namely, that ‘which posits universal types’ and understands ‘individual entities’ as instances of them (24). Del Mar finds dizzyingly ambitious the legal theorists’ project—he cites Raz—of creating universal theories of law (28). And finds troubling that legal theorists seek—he cites Raz again—to move from ‘our understanding of society’ to ‘claiming that the features identified apply universally’ (29). Del Mar is also puzzled by how general jurisprudence, as Gardner describes it, ‘enable(s) empirical inquiry’ and yet is ‘immune from being embarrassed by empirical investigation’ (32). Del Mar suggests that the law ought to be modelled ‘diachronically’, which means increasing the ‘variables one indexes to what one claims we can know about law in general’ (112). The insights thus generated will be ‘modestly general’, ‘polythetic’, and will admit of degrees of variables as opposed to some ‘universalistic’ claim (112). This last argument connects with Lobban’s argument against the ‘central case’ method and his scepticism about universalizability of legal theorists’ claims (8), and it is among the principal charges against the legal theorist’s universalizing ambitions.

III

So far as the concept of law goes, a bulk of the strictures of the essays in Part I—and the proposals for course correction which follow—appear to be directed at a smaller, albeit influential, sub-set of legal theorists in the analytic tradition (Austin, Kelsen, Hart, Raz and Gardner)—something that is also noted by Douglas-Scott (46) and Tamanaha (331). But making claims about ‘analytical legal philosophers’ as a group—let alone the more amorphous group ‘legal theorists’—is a tricky enterprise. The label ‘analytic legal philosophy’ does not pick out a homogenous group of theorists with a unifying programme. No sooner we look for analytic legal philosophers engaged in the business of offering conceptual analysis of law than we are confronted with a fork in the path requiring us to have to—following Heidegger—distinguish between ‘ontological’ and ‘ontic’ inquiries. This is not a dichotomy found in the jurisprudential literature, but I invoke it nonetheless because it provides a useful rubric to help clarify just what is at stake in ‘conceptual’ debates besides being, to borrow William James’ phrase, a new pair of labels for what are clearly ‘old ways of doing things’. An ‘ontological’ inquiry carves out a field and provides an ‘initial fixing of the areas of subject-matter’.^{Footnote 3} It ‘runs ahead’ of ontic inquiry, which follows it.^{Footnote 4} Ontological accounts that fix the subject matter ‘law’ sometimes go under the label of ‘stipulative’ accounts of law. Ontic inquiry studies entities in a field that is presupposed by the ontological inquiry. Subjects of an ontic inquiry may include a host of concepts starting with, at the highest level, law, legal validity, legal normativity, legal systems, and rights, and going all the way down to doctrinal areas of the law such as contracts, torts, etc. The classificatory project defended by Gardner, which marks out the area of inquiry, is of the ontological variety and is of a different type from the ontic projects such as Raz’s Concept of a Legal System. Some general jurisprudents like Kelsen, and Austin—and Hart too—it might be argued, combined both ontological and ontic inquiries in their accounts. Hart, for instance, noted that his work was at once a ‘clarification of the general framework of legal thought’ and also meant to ‘sharpen our perception of the [legal] phenomena’.^{Footnote 5} This ontological-ontic dichotomy might go some distance towards allaying Del Mar’s disquiet at how an ontological account such as Gardner’s might claim immunity for its project from any empirical verifiability while at the same time, facilitating empirical inquiries. Clearly, such a claim would be puzzling when made of ontic inquiries, which have the burden of providing an explanatory account of what in this case is a social phenomenon, and hence need to ‘fit the facts’, to use Hart’s expression.^{Footnote 6} It is here, in the category of ontic inquiries, that one might suppose, the full force of the strictures against making universal conceptual claims about a contingent social phenomenon like the law will be felt. But here again, things are far from straightforward.

It would be fair to say that analytic legal philosophers, for the most part, take law to be a social artefact which is the product of contingent human practices rather than a natural kind.^{Footnote 7} One starting off at this point would be slow to look for universally or timelessly valid essences of law. It is not at all obvious that even Hart—whose work is widely regarded as the paradigm for conceptual analysis—was interested in isolating some necessary and universally true essence of law from which he could generalize about all legal systems.^{Footnote 8} It is a respectable position to hold in analytic legal philosophy that rather than bother with conceptual analysis in the sense of identifying necessary and essential properties of law, one is better off looking for ‘typical’ properties yielding nothing more than Wittgensteinian ‘family resemblances’ between various instantiations of law^{Footnote 9}—which also happens to be the kind of conceptual analysis favoured by Pirie (42). Such conceptual analysis should, no doubt, as Pirie supposes, escape the strictures against universalistic theorizing. But if this holds true for family resemblances, the ‘central case’ methodology too could make a decent case for being exonerated from these strictures. As John Finnis reminds us, the ‘central case’ method—which is also found in the works of Hart and Raz—unlike the ‘univocal’ method of Kelsen, recognizes that law could have multiple traits which admit of various degrees with focal and marginal cases.^{Footnote 10} This would place it nearer the family resemblance paradigm than the problematic ‘universal type’ paradigm that subsumes individual cases under it.

Now, Raz does, in his later work, ostensibly endorse a conceptual analysis of the kind that elucidates universal and essential features of law^{Footnote 11}—with which Del Mar joins issue (28-29). But Raz offers his account against the backdrop of a keen awareness of the challenges posed by the historical and cultural contingency of law; and what he offers are deflationary accounts of the ideas of necessity and universality, thus opening the space for the ‘paradoxically sounding’ ideas of ‘necessary truths that change over time’;^{Footnote 12} and universal judgments from our parochial perspective. To be sure, none of this is meant to establish that there is no commitment to essentialism or universalism among the ranks of analytic legal philosophers working on the concept of law, but it is crucial to note that there is hardly any metatheoretical or methodological dictate of analytic legal philosophy, let alone legal theory, which necessitates this position.

Moving over to other legal concepts, which is to say, to theories in doctrinal areas of law such as contracts, torts, crimes and the like; here one does indeed find much faith in universalism and essentialism—and great deal of it unwarranted, as some of the essays in the volume persuasively argue. The method of these accounts is aptly captured by John Bell’s description of positing ‘first principles…abstracted from contingent and particular content’ (129). In his incisive critique of theories of corrective justice, Steve Hedley notes how these theories seek to be ‘timeless’ and, in many cases, do not even purport to be theories of any jurisdiction in particular (306-09). As both Hedley and Lobban warn, the artificial order they seek to impose on complex areas of law is unworkable (11).

What might explain the peculiar methodology of these theories? Lobban lays the blame at the door of the ‘analytical tradition’; Austin in particular (10).^{Footnote 13} However, this peculiar rationalizing method, it could be argued, is less the result of any metatheoretical mandate of analytic legal philosophy and more a derivate of the law-as-science idea borrowed from civil lawyers.^{Footnote 14} This idea was seen in action in the form of the nineteenth-century legal treatise inspired by civilian theorists, particularly Robert Joseph Pothier (10). Pothier’s method, in turn, was borrowed from Cartesian rationalism which postulated, following the Aristotelian ideal of science, that any science must follow the logical-deductive method of Euclidian geometry.^{Footnote 15} Support for this can also be found in Ian Williams’ instructive essay on legal maxims, which traces the rise of maxims in the early-modern common law (years 1528-1650) to the Aristotelian ideal of science (204). It is unsurprising then that maxims made a return in the high noon of the law-as-science movement in the nineteenth-century. Analytic legal philosophy does not dictate any special methodology to theorize about these matters, much less require the theorist to find pure and timeless categories or unitary theories. Consider Hart’s work, for instance. Whatever universal or essentialist ambitions one might be tempted to attribute to Hart’s account of the concept of law, one only needs to cast a glance at his Causation in the Law (co-authored with Tony Honoré) or his depiction of vitiating factors in contract as ‘irreducibly defeasible’ and hence not susceptible of capture in a ‘formula’ or ‘definition in terms of a set of necessary and sufficient conditions’,^{Footnote 16} to gauge just how contingent, culture-specific, and non-essentialist he was prepared to admit other legal concepts were.