The university year begins soon, and my students will be having what will be, for most, their first encounter with legal philosophy. (Online, if you’re in my own seminar or lectures. The pandemic is not going to disappear.)
At Oxford, as in much of Europe, jurisprudence is a compulsory part of our law degree. Since competent lawyers graduate from perfectly adequate law schools like Harvard or Yale, you may wonder why you will be made to study some philosophy. I will explain.
My non-jurisprudential colleagues may tout the non-specific benefits of philosophy. You will be promised transferrable skills that carry over to subjects like contract, constitutional law, or conflicts. What skills? The capacity to think: to read with care, to reason systematically, to parse complex arguments, to notice subtle distinctions. The objection is glaring: if you haven’t been able to develop these skills working with legal arguments, how will you ever master them working with philosophical arguments?
In terms of ‘skill sets’, law and philosophy are close cousins. They differ mainly owing to the fact that, in law, finding a relevant authority strengthens your case, while in philosophy the ‘appeal to authority’ is the name of a fallacy. So it would be strange if you found that law comes easily while jurisprudence is arduous just because there you need to read, think, and test arguments.
But good students are thrown off balance by the fact that in legal philosophy there are no authorities. No practical authorities of any kind–no one before whom you have to bow (unless you sign up to a dogmatic religious jurisprudence). As for our theoretical authorities— genuine experts whose say-so warrants credence–they are limited to a few technical and historical areas of the subject. It is a feature of most legal philosophy that you need to do it for yourself, though in the process you can have the pleasure of doing it in the company of some of the most penetrating thinkers in history, from Plato to… well, let’s just say to many of my friends and colleagues.
But pleasure isn’t everything, and maybe the intellectual pleasures aren’t your thing. For some of you, push-pin may really be just good as poetry. (I will explain that reference in my lectures. For now, substitute ‘Minecraft may be just as good as Mozart.’) And if that is true of you, it is absolutely fine: people differ. I’ve lived in England for thirty years and never once (intentionally) seen a cricket match. So just ignore imperious professors who tell you that X is intrinsically fascinating and fruitful, whereas Y is objectively boring and sterile. They don’t get out much.
Now, someone who did get out–in spite of a very difficult life– and who understood more about life itself than many of your professors (perhaps because his own life was so very difficult) was the writer David Foster Wallace. He also knew the answer to your question about philosophy. At a now-famous graduation address, he said this about the value of the liberal arts:
‘[I]t isn’t really about the capacity to think, but rather about the choice of what to think about. … How to keep from going through your comfortable, prosperous, respectable adult life dead, unconscious, a slave to your head and to your natural default-setting of being uniquely, completely, imperially alone, day in and day out.’
I’m afraid this applies to you, in spades. Lawyers have cultivated ways of being imperially alone together. Mention ‘sovereignty’ in England and most lawyers tend to think in unison of, and with, Albert Venn Dicey. In US law schools, every ‘theory of free speech’ struggles in the shackles of the First Amendment and its labyrinthine doctrine. What could be more dead, unconscious, and lonely than that? Sovereignty and free speech are things that matter. If they matter to you, why suppose that everything worth knowing or valuing about them begins (and usually ends) at home?
Legal philosophy is here to remind you that you are not a slave to your own (legal) head, that there is an escape from the ‘default setting’ of your own little legal system, however profitable and powerful it may be. It will explain how something that is true ‘legally speaking’ may be utterly false. It will show you the difference between the way things are around here and the way things ought to be. It may even help you envision the way things could well be, if only we cared enough.
That is why you will study jurisprudence.
Good luck with it!