More Reasons Why Jurisprudence Is Not Legal Philosophy

• Author: Michael Robertson
• DOI: http://doi.org/10.1111/raju.12185
• Published date: 01 December 2017
• Date: 01 December 2017

More Reasons Why Jurisprudence

Is Not Legal Philosophy

MICHAEL ROBERTSON

Abstract. It is generally assumed, without argument, that legal theory, legal philoso-

phy, philosophy of law, and jurisprudence all mean the same thing. This paper

rejects that assumption, and in particular the assumption that jurisprudence is the

same thing as legal philosophy. This assumption has recently been challenged by

Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I

seek to build on his arguments by adding insights found in thework of Stanley Fish.

1. Introduction

Is there any difference between legal theory, legal philosophy, philosophy of law,

and jurisprudence? The standard answer given by people interested in such mat-

ters is no; all of these terms really refer to the same thing. This conflation seems so

obvious that they present no arguments for the position. It is simply assumed. This

assumption generates book titles such as The Philosophy of Law: An Introduction to

Jurisprudence. The title implies that the two terms are equivalent, and the editors

make that claim explicitly in the preface where they refer to “the philosophy of law

(or jurisprudence, as it is sometimes called)” (Murphy and Coleman 1984, at xii).

Similarly, The Oxford Handbook of Jurisprudence and Philosophy of Law makes no

attempt to distinguish between the two terms in its title, and indeed goes on to

treat them as synonymous. The preface says that “[t]he volume not only captures

much of the jurisprudential past; it represents the current state of the philosophy of

law [...]” (Coleman and Shapiro 2002, v). Again, the prefaces to the first and sec-

ond editions of Understanding Jurisprudence: An Introduction to Legal Theory talk of

jurisprudence, philosophy of law, and legal theory without making any effort to

distinguish between them (Wacks 2009). The Blackwell Guide to the Philosophy of Law

and Legal Theory at first appears to address the issue. “At the outset, a remark is in

order on the implied contrast between ‘philosophy of law’—on the one hand—and

‘legal theory’—on the other.” But this hope is soon dashed:

The verbal distinction between the two came about largely as a historical accident [...]. [I]n

fact, the distinction between the two is evanescent: one that is no more useful than that

between ‘general’ jurisprudence (as a separate academic subject) and philosophy of law. It

has been the editors’ hope to rise above arbitrary divisions of academic turf [...]. (Golding

and Edmundson 2005, 1)

V

C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (403–416)