Professor Gerald Postema offers a gentle but damning critique of contemporary analytic jurisprudence for being antisocial, antiphilosophical, ahistorical, and, ultimately, mistaken about not only the province of jurisprudence but also the nature of law. He also offers an elegant restatement of what jurisprudence with a wider ambition must be like, and it is a jurisprudence in which time and history are central.
Postema’s basic diagnosis is that analytic jurisprudence accepts a peculiarly narrowing premise of Austin: that the province of jurisprudence—by which Austin meant the subject matter it studies—is solely “the core concepts of the professional practice of law—concepts of legal right and duty, possession, ownership, liability, fault, person, thing, status, intention, will, motive, legal sources, legislation, precedent, custom and the like.”Although Hart and his successors in the Anglo-American tradition mostly reject Austin’s definition of law as commands backed by threats, and not all are positivists, Postema believes they retain Austin’s narrow understanding of the province of jurisprudence. Jurisprudence is the province of legal concepts used in professional practice, which turns out to be well-suited for the tools and intellectual style of analytic philosophy. A broad understanding of law in its social, economic, cultural, religious, political, and historical dimensions largely vanishes from jurisprudence so conceived. Analytic jurisprudence becomes unsociable, not only to the social sciences, but also to the ambition of genuine philosophy, famously defined by Wilfrid Sellars as the endeavor to understand “how things in the broadest possible sense of the term hang together in the broadest possible sense of the term.” Postema goes so far as to call analytic jurisprudence “philosophy-phobic.” This is an important point, because it makes it clear that Postema’s complaint is not the familiar realist and law-and-society call for replacing jurisprudence with something more scientific—a view that Postema rejects because it “effaces any ambition of a truly critical theoretical perspective on legal practice.” The realists wanted less philosophy in jurisprudence, where Postema wants more.
Postema levels an additional complaint against analytic jurisprudence, directly related to the theme of this symposium. Analytic jurisprudence largely ignores the history of law and the history of jurisprudence—two different, if related, points. Its most distinctive intellectual style consists of drawing distinctions, formulating precisely worded principles, and testing them against linguistic and moral intuitions; but Postema objects that “[p]hilosophy that proceeds primarily by plumbing and pumping intuitions is inevitably and uncritically in thrall to the present.” More specifically, Postema accuses analytic jurisprudence of confining its attention to time-slice legal systems—that is, legal systems as they exist at a given moment of time—and he argues that this ahistorical procedure “can offer very little illumination of law and legal practice.”
Postema offers two general programmatic suggestions for jurisprudence besides greater historical consciousness: sociability and synechism. Sociability, as suggested above, has two dimensions. First, it means interdisciplinarity—a continual dialogue with the study of legal phenomena by the sciences, humanities, and even theology. Second, it means embedding jurisprudence in general philosophy, which in Sellars’s words encompasses “not only ‘cabbages and kings’, but numbers and duties, possibilities and finger snaps, aesthetic experience and death.”
Synechism is a less familiar idea, drawn from the philosophy of C.S. Peirce. It is the commitment to seek continuity among phenomena. Continuity-seeking may sound like another version of sociability, but as I understand it, synechism is a much more specific and theory-laden requirement. Peirce was metaphysically committed to the existence of actual continua everywhere in nature, history, and human psychology. So synechism will impose a certain demand on all systematic studies, namely discerning those continua. In particular, synechism commits us to a certain kind of historiography: The historian’s job is to unearth continuities between past and present rather than studying ruptures. This, it seems to me, is a contestable commitment that rules out a great deal of important historical work.
Furthermore, Peirce understood synechism to imply that ideas are intrinsically temporal and historical phenomena. Although Postema does not endorse this general thesis, he does argue for a special case of it, namely that law is “intrinsically temporal.” This conclusion is central to his argument against the possibility of time-slice legal systems. It, too, is contestable; but, I shall suggest, Postema can reach his conclusion on grounds other than synechism, and I agree with him about law’s intrinsic temporality.