MODERN JURISPRUDENCE This textbook presents a clear exploration of the historical developments and ideas that give modern thinking its distinctive shape. It guides students through the rival standpoints on jurisprudence from the origins of Western jurisprudential thought and the classical tradition to the emer- gence of ‘modern’ political thought. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis lead the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject. This third edition includes a new chapter on feminist legal scholarship and non-Western approaches. ii Modern Jurisprudence A Philosophical Guide Third Edition Sean Coyle HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Sean Coyle, 2022 Sean Coyle has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2022001611 ISBN: PB: 978-1-50994-890-1 ePDF: 978-1-50994-892-5 ePub: 978-1-50994-891-8 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. Preface to the Third Edition T he third edition of Modern Jurisprudence includes a new chapter on ‘disruptive’ approaches to jurisprudential thought, but all of the chapters contain revisions to a greater or a lesser extent. I am grateful to Hart Publishing for agreeing to these amendments and additions. The unique character of the book is that it does not simply present the various theories of law and justice without further direction, but offers guid- ance, in the form of arguments, as to which theories are correct, or true, and which are incorrect, or false. This approach, common enough in textbooks on property law and tort, does not erode the reader’s critical engagement with the various theories, for he or she is always at liberty to disagree with the author in matters great or small. But it is preferable to provide some regimentation of the issues that are otherwise frighteningly complex, to allow that critical faculty to employ itself to best effect. Philosophical problems have no uncontested starting points, and no uncontroversial solutions. One is obliged to begin in the middle. The rehearsal of opposing positions is never likely to assist the reader in resolving any of these issues to their own satisfaction, except perhaps by simpli- fication or distillation. Instead, by providing a definite philosophical framework, I hope to provide the reader with a thought-provoking argument which can act as the starting point for their own reflections. The book’s value lies in its usefulness. I hope that it proves useful to every person who picks it up. SC University of Birmingham December 2021 vi Preface to the First Edition T his book is primarily intended for students taking university courses in Jurisprudence or legal philosophy, but it may be useful to persons in other fields, or at other stages of legal education, who wish to deepen their engagement with topics in legal and political philosophy. Within the structure of the modern law degree, Jurisprudence is usually taught either as a compulsory subject studied in the second year, or (more usually) an elective course in the third year. With this in mind, I have forsworn the customary introductory exhortation, beloved of jurisprudence textbooks, asking ‘why study jurisprudence?’: as presumably (if you are reading this book) you have already made an informed decision to do precisely that, or else you were not given the choice and found yourself thrust through the door whether you liked it or not. For readers of both kinds, there obviously already exist very many textbooks offering guidance in what is, irreducibly, a complex and challenging subject. The point of departure of this book, which is based on the Jurisprudence courses I taught at UCL, Durham and Birmingham, derives from the sense I have that Jurisprudence students do not simply want to be presented (as it were, democrat- ically) with a range of difficult, mutually contradictory standpoints and theories amongst which they are urged to make up their own mind, especially perhaps when feeling some intuitive attraction to all of them. Perhaps not unreasonably, many readers wish for a sense of direction when otherwise it is difficult to know where to turn. Certainly when studying the law of contract (for example), the lecturer’s audience is not simply presented with numerous, diverging lines of authority and instructed to think its own way through the thicket of conflicting judgements and interpretations. Contract textbooks provide no less a deliberate interpretation of the law: one view out of many possible reconstructions that is held out, however defeasible it may be, as being the correct way to look at things. (That is, as the historian AWB Simpson reminds us, the reason why we buy them all.) Why should it be any different with Jurisprudence? In this book, therefore, I have not hesitated to state how I think the central questions of jurisprudence should be understood, and where this takes us. I have not presented a series of theories relatively independently of one another, as on an equal footing, but have tried to indicate a coherent line of reflection from which sense of them can be made. At the same time, it is important not to think of jurisprudential questions as capable of dispositive ‘answers’. It is the primary characteristic of philosophical questions that they cannot be resolved, proved or disproved, once and for all. These are the widest questions one can ask: setting viii Preface to the First Edition no limits to the depth or the breadth of enquiry, not because human minds are forever removed from ultimate truths, but because there is no end to the task of interrogating the understanding of such truths. There is no point beyond which it becomes impossible further to deepen one’s reflection upon, and engagement with, ideas such as justice or of right. It goes without saying that I have simplified arguments here and there, given the introductory intention of the book, but (I trust) without actual distortion. Though I hope that readers will feel encouraged to make their way systemati- cally through the book, fully exploring the deeper issues raised, it is possible for the reader in a hurry to skip directly to those passages, mostly in the second part of the book, that discuss the writings of particular legal philosophers of modern times. For both sorts of readers, my hope is that this book provides some orientation in this endlessly fascinating subject, and sheds a measure of light upon some of its concerns. SC University of Birmingham September 2013 Acknowledgements I would like to thank everyone at Hart Publications for their support and hard work, especially Victoria Broom whose copy editing saved me from many errors. Thanks are also due to my colleagues and students, on whom I tried out, developed or refined many of the book’s doctrines and standpoints. S Coyle December 2021