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Taking the evolution of legal doctrine seriously: review of Katayoun Baghai, Social Systems Theory and Judicial Review: Taking Jurisprudence Seriously (Farnham: Ashgate, 2015. 188 pp. £65/£58.50)

  • Richard Nobles (a1) and David Schiff (a1)

Extract

The endeavour to take jurisprudence seriously is addressed by Baghai, a sociologist, to those within her own discipline who fail to engage with the internal understandings of law, most particularly those exhibited within the discourse that accompanies appeal court decisions, namely the discourse that helps to establish and develop legal doctrine. In effect, the book is an appeal for sociologists to assign greater attention to legal doctrine as an object of study. But such an appeal can also be interpreted as a request for theorists who study legal doctrine to take sociology seriously – namely an invitation to legal theorists to bring sociology, or at least one version of it, to bear on their study of the evolution of doctrine. This proposal faces considerable resistance from those on both sides of this divide. Whilst Hart notoriously described The Concept of Law as an essay in both analytical jurisprudence and descriptive sociology, the analytic tradition that he sponsored has sought to augment its academic credentials by moving ever closer to philosophy rather than sociology. With the important exception of Brian Leiter's arguments for ‘naturalising jurisprudence’, the general drift of analytical jurisprudence has been towards a prioritising of philosophical methods over empirical insights. And the resistance to some rapprochement has not been limited to the philosophical side of the divide. The sociology of law has a long tradition of approaching the study of law in a manner that distances itself from the self-understandings of participants in the legal system (lawyers and especially judges). This transfers in turn into hostility towards the manner in which legal philosophy has engaged with those self-understandings, with its willingness to consider, at high levels of abstraction, whether law consists of rules, norms or principles. Rather than organising insiders' views into conceptual schemes, and then examining them for their coherence and consistency, legal sociology has generated its own facts and truths about laws and lawyers, principally using empirical methods (but also other methods) and contrasting these ‘truths’ with lawyer's self-understandings, treating the latter as an inferior form of knowledge either disconnected from reality or ideological rather than descriptive. It has also noticeably failed to engage with much of the central concern of legal philosophy – the attempt to identify law as a separate entity within society. Rather than considering the existence of law as a unity, it focuses instead on parts of law as examples of more general sociological categories, such as studying the legal profession within the sociology of professions or courts, legislatures and administrative agencies within the sociology of institutions or organisations.

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References

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