Forum for Historical Jurisprudence: How Might Historical Jurisprudence Be Updated?

About this event

Two notable monographs (supplemented by a third) published in the middle of the last century approached jurisprudence from an historical position. The first was Walter Jones’ Historical Introduction to the Theory of Law (OUP, 1940) and the second was Herbert Jolowicz’s Lectures on Jurisprudence (Athlone, 1963), published from his lecture notes after his death under the editorship of his son Tony Jolowicz. Another work by Herbert Jolowicz, also published after his death, was Roman Foundations of Modern Law (OUP, 1957), this latter work perhaps not strictly a work on the history of legal theory, but nevertheless containing much that usefully supplements his Lectures. The purpose of this seminar presentation is to return to these works with the imagined aim of producing updated editions. In the case of Jolowicz this might seem a fairly straight forward exercise given that the historical section is chronological and so all that seems to be required is to pick up the historical progression from Herbert Hart onwards. As for Jones, however, the position is much more complex because the chapters do “not provide a systematic treatment of the whole field of modern legal theory, but... serve as an introduction to certain aspects which the law has presented, when it has been approached from different points of view and for different purposes” (Jones, Preface). To update this work presents an enormous challenge, not just because of the extraordinary scope of Jones’ learning, but also because of the chapter topics themselves. Where might Hart and Dworkin fit into the structure? Could, for example, feminist jurisprudence, Critical Legal Studies and legal pluralism be easily accommodated? And what about legal method and reasoning which has attracted considerable literature since 1940? Might one have to add and (or) delete a chapter or two? It will be argued that just reflecting on an updating of Jones is an interesting epistemological exercise in itself, yet more specific suggestions will be advanced in the seminar presentation. Such a reflection is not, however, to marginalise Jolowicz’s Lectures because, after his historical account (Part One), he goes on to discuss Sources of Law (Part Two) and Divisions of Law (Part Three). These latter parts are not strictly diachronic in their approach, but, especially when supplemented by chapters in Foundations, they clearly have their roots in the past. Moreover, as the editor pointed out, there was to be a Part Four dealing with legal concepts, but this was not included because Herbert Jolowicz was dissatisfied with his treatment of this topic and, anyway, he thought that it was well covered in standard textbooks (see Preface). Nevertheless might a Part Four on legal concepts usefully be included in a new edition? And how might it be achieved given the absence of any lecture notes by Jolowicz?

Speaker Bio
Professor Geoffrey Samuel

Some additional readings

Gordley, J, The Jurists: A Critical History (Oxford University Press, 2013)
Kelley, D, Foundations of Modern Historical Scholarship (Columbia University Press, 1970)
Samuel, G, Rethinking Historical Jurisprudence (Edward Elgar, 2022)
Stein, P, Legal Evolution: The Story of an Idea (Cambridge University Press, 1980)
Tierney, B (1982), Religion, Law, and the Growth of Constitutional Thought 1150-1650 (Cambridge University Press, 1982)
Ullmann, W, Law and Politics in the Middle Ages (Sources of History, 1975)
Villey, M, La formation de la pensée juridique moderne (Presses Universitaires de France, Quadrige, 2006)
 

 

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