Academic

Waldron on Democratic Jurisprudence

By Lawrence Solum

Jeremy Waldron (New York University - School of Law) has posted Can There Be a Democratic Jurisprudence? on SSRN.  Here is the abstract:

General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion (made by Ronald Dworkin and others) that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation. At the very end, the paper also considers Jean-Jacques Rousseau's view that the word "law" should be confined to measures that are applicable to all, made by all, and enacted in the spirit of a general will.

And from the paper:

A legal system is democratic because of who produces the laws and the way they are produced. But does its being democratic also have anything to do with the way norms are recognized as law? I don not mean now the source-based criteria that are used to recognize them, but the business or activity of recognition. In modern jurisprudence, the recognition of law is conceived as a matter for judges: the rules of recognition are rules judges use to identify the law. Is this something a democratic jurisprudence might address? Putting it that way sounds as though I am looking for the theoryof- adjudication part of a democratic jurisprudence. But actually that is not what I want to address. I want to raise a democratic query about the assumption implicit in the modern approach to rules of recognition—the assumption that the recognition of norms as law is best understood as a practice among officials.

In the old ideology of English law, it used to be said that the Common Law originated in the customs of the people of England.38 According to this mythology, English law was like the demotic law celebrated on the Continent by theorists like Savigny, who spoke about the "organic connection of law with the being and character of the people":39 it was a body of customary law so implicitly the possession of the people as to be in effect their 'second nature," something as intimately bound up with who they were and the minutiae of their social relations as their language was or their culture.40 On this account, there would be no particular difficulty with recognition.

* * *

I have long been intrigued by the fact that it is no part of the modern positivist understanding of law that any of this should be so. (It seems to have died with Bentham.) According to the canonical account of H.L.A. Hart, a society can have a legal system even though the attitude to the rules on the part of most people in the society is one of sullen acquiescence and even though few ordinary people have any accurate idea of how laws are made and recognized. For a legal system to exist on Hart's account, all that is necessary is that the rules recognized as legal be generally complied with (out of fear or whatever other motive), whether people understand them as legal or understand what it means for them to be legal or not. Of course a legal system must have secondary rules (like rules of recognition) which exist as social practices; but on Hart's account, their existence need not involve more than a tiny subset of the society, persons who, by virtue of participating in these practices, count as the society's officials'its judges, legislators, senior bureaucrats, etc.

I wanted to keep adding quotes, but soon realized that I would be reproducing a large chunk of the paper.  So let me say instead that this paper is quite wonderful.  Download it while its hot!

Full post as published by Legal Theory Blog on October 13, 2008 (boomark / email).