Maurice & Hilda Friedman Professor of Law, and
Director of the Center for Law and Philosophy at Columbia Law
School
01/21/04 and 01/22/04 Lectures: 5:30 pm in TCSEQ 201
TCSEQ is located at 370 Serra Mall. Lecture hall 201 is towards
the rear of the William R. Hewlett SEQ Teaching Center, which
is across from the David Packard Electrical Engineering Building
and diagonal from the Gates Computer Science Building.
01/23/04 Discussion Seminar: 10 am in Building 460, room 426.
Building 460 faces Palm Drive from the Main Quad on campus.
In a recent book Roberto Mangabeira Unger suggested that one
of the "dirty little secrets of contemporary jurisprudence"
is "its discomfort with democracy."* This discomfort sometimes
takes the form of active hostility to democracy ‚ for example,
in the cult of the higher judiciary, in the constant denigration
of legislatures, and in the emphasis give in constitutional
theory to the importance of countermajoritarian safeguards.
In analytic legal philosophy, the discomfort takes a milder
form ‚ that of (possibly benign) neglect. Analytic philosophers
of law say they are interested in the conceptual analysis
of the concept of law as such, irrespective of the type of
regime with which it is associated.
In these lectures, Professor Waldron explored the possibility
of a jurisprudence that is less neglectful of, and perhaps
more tightly associated with, democratic values. We often
distinguish between general and special jurisprudence: special
jurisprudence is either the jurisprudence of particular
areas of law ‚ the philosophy of tort law or criminal law,
for example ‚ or the philosophy of particular kinds of legal
system ‚ for example, the philosophy of the common law.
Maybe we should think also about a third dimension of special
jurisprudence ‚ associated with particular kinds of political
system: for example, the philosophy of democratic law. Also,
we associate ideals like the rule of law with certain values,
such as individual autonomy and respect for persons; it
seems worth exploring whether democratic values might also
play a role in determining normatively the general shape
and character of legal institutions.
Professor Waldron explored these possibilities in some familiar
contexts - the interpretation of legal texts and also common
law doctrines of precedent ‚ but also in some unfamiliar
contexts. In thinking about the nature of law, we need to
consider the place that it occupies in our lives and the
difference that it makes to the quality of our dealings
with others. Law is not just something to be enforced or
submitted to; but nor is it simply something to be assessed
as right or wrong, just or unjust. A people live under law
when they see the rules and principles that bind them as
their law, something they have made together for each other,
something they own collectively. (We get a glimpse of this
in the spirit of proprietorial affection with which many
Americans regard their constitution.)
These ideas sound like platitudes, but they pose quite a
challenge to conventional approaches in jurisprudence. On
H.L.A. Hart's account, for example, a society can have a
legal system even though the attitude of most people in
the society is one of sullen acquiescence and even though
the secondary rules that constitute the workings of the
legal system are known to and practiced by only a small
corps of officials.** I think that at the level of general
jurisprudence Hart is right to emphasize this possibility:
that a legal system may exist in a society even though most
members of the society are alienated from its workings in
this way. (He is right, not because jurisprudence should
cultivate value-neutrality, but because we need to be aware
of the dangers of alienation and oppression associated with
law as such.)** But that makes it all the more challenging
to imagine a special jurisprudence for legal systems that
set out to preclude this possibility, and which try to develop
general doctrines of law, legality, legislation and adjudication
that really do embody the idea of a people regarding the
law that governs them as theirs, in a robust democratic
sense. ______________________________________________________________________________
* Roberto Mangabeira Unger, What Should Legal Analysis Become?
(London: Verso, 1996), p. 72-3.
** H.L.A. Hart, The Concept of Law, Second Edition (Oxford:
Clarendon Press, 1994), p. 118.
January 21-23
______________________________________________________________________________
Information
on Past Wesson Lectures
Wesson
Lecture 2005-2006
Wesson
Lecture 2004-2005
Wesson
Lecture 2003-2004
Wesson
Lecture 2002-2003
Wesson
Lecture 2001-2002
Wesson Lecture 2000-2001
