Jurisprudence

Jurisprudence. The term “jurisprudence” technically means skill in the science of the law. That definition rests on the premise that law is a science, a premise deeply rooted in Anglo‐American legal education since at least the eighteenth century, but one that came under severe assault in the twentieth century. The conception of law as a science presupposes its methodological and even substantive universality as a set of fundamental principles that can be analyzed and discerned in an unchanging fashion, akin to the traditional view of “the scientific method.” Many conventional treatments of jurisprudence have been organized around these premises. However, jurisprudence can also be thought of as the cumulative history of ideas about the nature and cultural significance of law and legal institutions in a given nation. This essay takes the latter approach, emphasizing ideas about the law in successive periods of American history.

Fundamental to an examination of the stages in American jurisprudence is the assumption that a sea change in conceptions of the nature of law occurred over the course of the nineteenth century. Once thought of as a repository of essentialist, unchanging principles, akin to other fundamental causative forces in the universe, law came to be thought of as equivalent to the ideologies and policies of officials empowered to make legal decisions. While this change in the meaning of law as a causative agent in society took place gradually, the view of law as essentialist and external to human will, dominant at the time of the framing of the Constitution, had by the 1930s been replaced by one that defined law as largely indistinguishable from the legal decisions of authoritative officials.

Nineteenth‐century Jurisprudence.

This sea change in attitudes involved two fundamental stages, the “classical” (nineteenth‐century) and the “modern” stage, each associated with certain jurisprudential movements. The jurisprudential issues contested in the classical period revolved around whether judges had correctly “discerned the course prescribed by law”—in other words, whether they had accurately adapted fundamental legal principles to emerging social issues. Thus, the struggles that produced the leading constitutional decisions of the nineteenth century—over the federal government's authority to supplant the authority of the states, the constitutional status of slavery, federal enforcement of the civil rights of former slaves, income tax, antitrust legislation, or states' efforts to regulate contractual relationships among employers and their employees—were not thought of as raising fundamental questions about the the legitimacy of judges making law or entering into the domain of policy. They were thought of, instead, as raising questions of whether the judges deciding those cases had accurately discerned the course prescribed by law.

During the Gilded Age, some American legal commentators, influenced by the growing prestige of science and its secularized explanations for the flow of events in the universe, began to question the essentialist nature of law. This group of “modernist” commentators concluded that the distinction between the will of officials, including judges, and the “will of the law” was simply a fiction. Legal decision‐makers, including judges, were now characterized as “making” law. This characterization naturally raised issues that centered on the problem of separating politics from law, and of checking the potentially tyrannical or arbitrary tendency of legal decisions by human actors, in a society premised on the supremacy of a written Constitution and on democratic theory.

Early Twentieth‐century Developments.

In response to these problems, three successive twentieth‐century jurisprudential movements sought to erect constraints on legal decision‐makers, especially judges. “Sociological jurisprudence,” an early twentieth‐century movement, insisted that judicial decisions must be grounded in an empirical understanding of current social conditions. Legal realism, the next movement, abandoned the idea of essentialist legal principles altogether and proposed that judging be seen as the equivalent of policy‐making and that legal rules be frankly recast in a functional form. Some legal realists pressed the idea of judging as human will so insistently that, in the context of totalitarian threats to American democracy, it appeared frightening.

The next influential twentieth‐century jurisprudential movement, “process jurisprudence,” attempted to constrain the unsettling implications of the realist movement. Because process jurisprudence beliefs continued to be widely held by lawyers and judges of the late twentieth century, it merits a more extended treatment. Process jurisprudence attempted to justify a selective approach to judicial review, in which a degree of activism in common law‐judging and in certain constitutional realms—notably free speech—was combined with judicial deference to legislatures and to the federal administrative agencies that had proliferated from the 1930s on. Process jurisprudence correlated selective judicial review with a set of institutional spheres in “the legal process,” each with its own set of competence requirements.

For its adherents, process jurisprudence “solved” the jurisprudence dilemma of activist judging in a constitutional democracy by providing criteria for determining whether a particular judicial decision had been been grounded in institutional competence theory and was thus rational. Aggressive judicial review in the free speech area was seen as competent because the justifications for that review articulated the vital role of freedom of expression in a modern democracy. Deferential judicial review in the realm of political economy was equally viewed as competent because the collapse of orthodox capitalism had demonstrated that American democracy was not committed to an essentialist economic policy, but rather to experimentation, embodied in legislative solutions.

In an influential series of decisions highlighted by Brown v. Board of Education (1954), the Supreme Court expanded aggressive judicial review into areas beyond free speech, such as race relations, reapportionment, and criminal procedure. Process theorists insisted that these decisions be justified by a grounding in “neutral principles of law” that would demonstrate their rationality and competence. Eventually, after finding the Court's justifications inadequate, process theorists supplied their own justifications by formulating two additional essentialist policies to which the judiciary could subscribe: the policy of antidiscrimination on the basis of race or skin color, which justified the Court's desegregation decisions; and the policy of reinforcing the democratic principle of representation by ensuring that if a minority group was unrepresented or underrepresented in a legislature, the judiciary could invoke aggressive constitutional review on its behalf.

The Late Twentieth Century.

In the late twentieth century, the governing assumptions that linked sociological jurisprudence, legal realism, and process jurisprudence were called into question. Specifically, a series of theoretical perspectives appeared in legal scholarship that collectively denied that modern scientific methodology actually amounts to a constraint on its practitioners, whether in law or in any other human “science.” Critical legal studies, feminist theory, critical race theory, republicanism, and communtiarianism all were openly normative perspectives that made no pretense of being a positive, objective “science.” Their implicit jurisprudential theory appeared to be that no legal actors, including judges, are constrained in any meaningful fashion in their decision‐making. From this perspective, the effort of modern jurisprudence to substitute empirically derived and rationally justified essentialist policies for the essentialist principles of classical jurisprudence is simply incoherent.

Some commentators suggested that with the collective surfacing of these diverse perspectives, process jurisprudence had disintegrated, resulting in the dawn of a “postmodern” stage of American jurisprudence. This conclusion was perhaps premature. The problem of distinguishing the “will” of the law from the will of those who make legal decisions seems to transcend history, given that law, unlike economics or physics or literature, is assumed to be a regime that provides authoritative rules for governing human conduct. Unless “postmodern” jurisprudential perspectives devoted themselves to fashioning some techniques—whether derived from modern science or elsewhere—they were not likely to gain the lasting influence of their predecessors. The purported emergence of “postmodernism” in jurisprudence may have signalled not so much the collapse of modernist epistemology as the collapse of the idea, from which conventional treatments of jurisprudence had started, of law as a science. That is to say, law resists being analogized to a field with predictive universalistic rules; it is too grounded in human complexity. But at the same time, law's authoritative force, at least in democratic societies, derives from its ascribed ability to function as an alternative to tyranny and arbitrariness. Thus, at least in the United States, the subject of jurisprudence appears integrally bound to the recurrent dilemmas posed by law as both a facilitator of, and a constraint upon, human willfulness.
See also Federal Government, Judicial Branch; Legal Profession.

Bibliography

G. Edward White , Patterns of American Legal Thought, 1978.
Daniel Rodgers , Contested Truths, 1987.
G. Edward White , The American Judicial Tradition, 1988.
Dorothy Ross , The Origins of American Social Science, 1993.
Dorothy Ross, ed., Modernist Impulses in the Human Sciences, 1994.
G. Edward White , Intervention and Detachment: Essays in Legal History and Jurisprudence, 1994.
Neil Duxbury , Patterns of American Jurisprudence, 1995.
Laura Kalman , The Strange Career of Legal Liberalism, 1996.
Gary Minda , Postmodern Legal Movements: Law and Jurisprudence at Century's End, 1995.

G. Edward White