The Past of Jurisprudence

Anglo-American jurisprudence is sometimes accused of being ‘unhistorical’. There are indeed pressures that lead us to exaggerate the significance of contemporary concerns and ideas. After examining these, I consider what we might learn from the past. I argue that neither the past of law nor the past of jurisprudence present special ‘test cases’ for legal theory. On the other hand, the past of jurisprudence may be a resource for philosophical questions about law: (A) It may suggest solutions we have missed or misunderstood, sometimes by prompting us to clarify or repair questions that have been handed down to us in bad or misleading form. This is solution-oriented jurisprudence. (B) But when we do engage the past of jurisprudence, we also encounter some problems that do not respond to reasoning or repair: they are intractable. Here, in the realm of problem-oriented jurisprudence, we should trust the teachings of the problems over anyone’s supposed solution to them. The value in philosophical reflection on law lies not only in solutions to theoretical problems but also in actual engagement with solutions proposed by past writers. For this reason, among others, the work of jurisprudence will never be completed.

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