Legal Theory Blog

Blogging from Granada, Part Three
It’s Friday morning in Granada, and I’m sitting in a mostly empty (and huge) auditorium. William Twining, Professor Emeritus at University College, London, is this morning’s speaker, and his talk is entitled “General Jurisprudence and Globalization.” Twining has a distinctive voice among legal theorists; he does legal theory that is high level, abstract, and interesting, but from a distinctively “legal” perspective—bucking the trend towards interdisciplinarity that dominates the American legal academy. I find Twining’s work to be stimulating and refreshing, so I am looking forward to this talk.
Twining begins. His aim, he says, is to revive a “general jurisprudence” for a globalized society. Anglo-American jurisprudence, he suggests, has been “parochial.” But his perspective is itself parochial—reflecting his own immersion in the Angle-American tradition. Jurisprudence is theorizing about the law that is ideological in the nonpejorative sense—linking views about law to the rest of our views about the world. Jurisprudence has a crucial role in the development of law as a healthy discipline. The heritage of Anglo American jurisprudence is parochial in three ways: 1) it has been done within the western legal tradition, 2) it is focused almost exclusively on state law and ignores other forms of law, including religious and transnational systems of legal ordering, and 3) the agenda of Anglo-American jurisprudence is quite limited, ignoring many important issues. The central argument of the paper is that law is becoming more cosmopolitan and jurisprudence needs to face this.
Globalization challenges some of the basic assumptions of contemporary Anglo-American jurisprudence. Twining says he teaches a course on globalization, and in his course, he bans the “G-words,” references to global and globalization, unless the words are justified and defined clearly. He does this because there is a tendency to overuse the word globalization, and to ignore the difference between truly global phenomena and other transnational spheres. Much of transnational law is not global. The global perspective can actually encourage bad theorizing, that seeks to universal phenomena that are actually not universal. He suggests that although theories like Brian Tamanaha’s are valuable, there is a need for more data-driven.
General jurisprudence has a number of different meanings. Twining’s list includes, for example, general as “universal” and general as “abstract.” So if we talk about general jurisprudence, we need to be clear about what we mean. A central issue of a general jurisprudence should be: how useful is it to generalize across different legal cultures. Generality and particularity are relative. A general jurisprudence need not be a “universal” jurisprudence.
Jurisprudence, legal theory, and socio-legal studies have similar but not identical meanings. Some questions, e.g., theories of justice, belong to philosophy of law. Other questions, e.g. the difference between questions of law and fact, are not topics on which philosophers have any special expertise. Twining then discusses the tendency to assimilate jurisprudence and philosophy of law. Brian Leiter, for example, argued that no American legal theorist (Holmes, Pound, etc.) has made a significant contribution to philosophy. Twining maintains that not all of the issues that are important to legal theory are philosophically interesting. The revival of contact between analytic philosophy and jurisprudence inaugurated by H.L.A. Hart has had important beneficial effects. But there has been a growing sense of dissatisfaction with philosophy of law. Two common complaints: (1) legal philosophy has become too detached from legal practice, and (2) legal philosophy is too narrow.
Charges of narrowness can mean several different things. One point is that legal philosophy has been isolated from socio-legal studies and ignored the realist turn to looking at law in action. The method of conceptual analysis, nonetheless, can be useful to socio-legal studies.
Many have argued that legal doctrine needs to be understood in context. Socio-legal studies and analytic jurisprudence have been mutually antagonistic, but recently there are signs of reconciliation. Brian Tamanaha’s use of Hart has been especially important in this regard.
Recently, there have been arguments in favor of a broad conception of law that includes non-state law. This goes beyond the assumption that there are only two kinds of law: municipal and international. The picture of law that focuses only on these two kinds of law is too narrow—it omits religious law, like Islamic Law, for example. Yet these forms of law are important to understanding law in a global context.
Several serious thinkers, including Tamanaha and Glenn, have made the case for taking non-state law seriously. Twining’s paper discusses this in more detail, but he says he will omit those arguments from his oral presentation.
The central point of taking non-state law into account is that they are crucial for understanding legal phenomenon. He suggests that a “master plan” is not appropriate, but he does offer some examples of what a cosmopolitan theory might be like.
Dennis Patterson asks a question: If you believe that the business of philosophy is defining the necessary and sufficient conditions for the application of concepts, then philosophy is the master discipline and there is no room for sociology. But if you believe that metaphysics and conceptual analysis are dead (along the lines suggested by Brian Leiter), then there is no room for philosophy. Is there any middle ground? Twining expresses some skepticism about Leiter’s Quinean naturalism and suggests that Nicola’s Lacey’s work offers a better model. Lacey suggests that questions like judge’s conceptions of their role, modes of institutionalization, and so forth must be taken into account. Twining suggests that he is after a middle ground, but that he does not need a controversial philosophical theory to get it.
The questions continue, but I am not putting down my pen—or rather, powering down my laptop for now! It was a provocative session that I very much enjoyed.