The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy

Rating:
Summary: A sociological approach to jurisprudence
Review: This book is excellent. Unlike general texts of jurisprudence, which tend to divide matters up into distinct, abstract schools of thought, like "positivism", "natural law", "critical legal studies", and so forth, Cotterrell takes the view that many of the changes in legal doctrine arise from the social context in which it is most used - the very practical concerns of the legal profession itself. This view that the 'politics' of the profession influences legal doctrine seems obvious, but from my reading, Cotterrell is one of the very few to take this approach to jurisprudence in a systematic way. Jurisprudence tends to be portrayed as timeless and somehow floating free of society. Cotterrell's view is that jurists' conceptions of law changed as the uses of law by the broader society changed. So, for instance, when statute law - law issued by the legislature - became the dominant form of law, positivism (the philosophical position that all law issues from a sovereign and is enforced by sanction) was embraced by the profession. Similarly, when the defects of positivism became clear in society, there was a shift back to "common law" thinking (one might say "community based conceptions of law").

Cotterrell is involved in the sociology of law movement, the study of law in society and its effects on society. So this book fits neatly into his oeuvre. I think he makes a very persuasive argument that jurisprudence is affected by the deeper currents of society. It's a shame this book isn't treated more seriously by mainstream commentators. A book which would complement a reading of Cotterrell's book is Robert Summer and Patrick Atiyah's text "Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions", which shows how different political, social, and institutional differences determine what arguments are considered effective, or persuasive in the American and English legal systems.

In each chapter, Cotterrell covers two figures - thus, in one chapter he deals with HLA Hart and Hans Kelsen, in another, Ronald Dworkin and Karl Llewellyn. It is a shame he covers so few personalities in the jurisprudential world. In a way, it is also quite limiting.

From this description, one should also note that Cotterrell's book is 'derivative', in the sense that it is more a primer about the thought of major figures in jurisprudence, than about a unified theory of law. For that, one has to turn to Cotterrell's other book, "Law's Community: Legal Theory in Sociological Perspective" - but even that is a bit derivative.

A neat feature of Cotterrell's book is the "further reading" section at the end, so if you are really keen on what you have read, you can go off and read more on the subject. If I have one complaint, it is the way he uses the social sciences' method of citation - ie., a short reference to the author, date of publication, and page - leaving you to flip back to the end of the book where all the books used are listed. Being a law student, I like to have the references in front of me, as footnotes, at the bottom of the page.

But this shouldn't stop you from reading this outstanding book. I give this book four stars, because it represents a real break from the books on jurisprudence that have killed off generations of law students' interest in the subject.