How to Be a Transnational Jurist: Reflections on Cotterrell’s Sociological Jurisprudence

• Date: 01 December 2019
• Author: Sanne Taekema
• Published date: 01 December 2019
• DOI: http://doi.org/10.1111/raju.12263

© 2019 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 32 No. 4 December 2019 (509–520)

How to Be a Transnational Jurist:

Reflections on Cotterrell’s

Sociological Jurisprudence

SANNE TAEKEMA

1. Introduction

In 2017 Brian Tamanaha’s book A Realistic Theory of Law was published, which ar-

gues that there is a forgotten third branch of legal theory that studies law in soci-

ety, taking empirical knowledge seriously. Tamanaha (2017) makes a good case for

Montesquieu, Savigny, Ehrlich, and Holmes as contributors to this social or realistic

legal theory. Contemporary scholars, however, are strangely absent from his lists.

This is surprising, because Roger Cotterrell’s Sociological Jurisprudence, and the ear-

lier work on which it builds, is a great example of what a legal theory informed by

sociological knowledge can be (Cotterrell 2018). Where Tamanaha stresses the empir-

ically and historically informed character of this “third branch” of jurisprudence and

argues for its recognition in legal theory, Cotterrell combines a similar argument for

empirically grounded jurisprudence with a distinct focus on the role of jurists in so-

ciety. Although I believe their sociologically informed jurisprudence is an important

way of theorizing law, I am more intrigued by Cotterrell’s additional argument about

the connection of jurisprudence with legal practice.

A crucial strand in Cotterrell’s book is an argument for jurisprudence as opposed

to analytical legal theory, seeing it as a form of theorizing to support legal practice

(ibid., 4). Cotterrell does not treat jurisprudence as an abstract body of legal thought,

but as the main resource for jurists. There is much to be said about the distinction

Cotterrell makes between jurisprudence and legal theory, and I touch upon this

briefly in the next section, but my main concern here is to understand the role of the

jurist. Cotterrell explains the idea of the jurist with the help of Gustav Radbruch’s

legal philosophy, which Cotterrell sees as a vision on how jurists may be the guard-

ians of law’s values and advance those values in society. Although this role is prac-

tical, in the sense that it engages with the problems and conflicts in legal practice, it

is also general: Jurists stand for the idea of law as a whole, promoting law’s coher-

ence to achieve broader social unity (ibid., 42). This formulation makes it sound as if

Cotterrell’s claim is a straightforward moral appeal to jurists to promote the idea of

law, but that is not the case. Cotterrell emphasizes the variability of values, and the

diversity of views on justice, and therefore also the need for sociological insights in

how these are shaped. As Cotterrell says: “Sociological study of law has the potential

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