1. the science or philosophy of law
2. a. a system or body of law
b. the course of court decisions
3. a department of law
This is how the Merriam-Webster Dictionary defines the word. While on a trip overseas during my first year of law school, an Oxford law graduate asked if we studied jurisprudence at Osgoode. I replied, “Of course…depending on which definition of the word you are referring to.”
During my time at law school, we concentrated mostly on definition 2b: the course of court decisions. The philosophy of law wasn’t the focus of our learning, at least not a mandatory one. There was a small group seminar offered for upper year students, but it seemed that only those who had previously studied philosophy signed up. It was a shame because, inevitably, philosophical questions arose out of legal discussions in other classes, yet there was never an opportunity to really delve into the topic. Perhaps that was because we were ill-equipped to do so or maybe (more likely) people just weren’t interested.
Personally, the notion of objectivity haunted me throughout my three years of legal study. I wrote at least three research papers on the topic and brought it up somehow in nearly every course I took. Despite my self-driven curiosity in the area of legal philosophy, I always felt I was wading into very deep waters without any supports or supervision. Some help would be useful, I thought. The literature written on the concept of objectivity alone was intimidating enough. I persevered, however, and tried to connect the vague, abstract notion to more practical examples in law.
As I made sense of these theories and theorists — Dworkin, Hart, positivism, morality, epistemology and more — I wondered why the first time I came across these names was halfway through second year of law school. These questions seemed central to the study of law. How can one learn what the law says without questioning what and where it’s derived from, on what basis it earns its authority? Sociologically, it was a concern that old, white men with power were the ones writing the law in a literal sense (this topic to be blawged about at a later date), yet even that idea didn’t get very much official air time in class. Philosophically, there were other metaphysical concerns about the foundation of the law as well, yet, we weren’t questioning it.
I think this abstract nature of philosophy is exactly why so many students–law students in particular– are turned off by the subject. The reluctance is justifiable too. Understanding jurisprudence is a challenge and we already have the enormous task of understanding the law itself. This is perhaps why law schools choose not to make jurisprudence a mandatory course: students’ lack of interest. Granted, there are many, many arguments about why this or that course should be required in legal education. However, there is something so fundamental about legal philosophy that it boggles this writer’s mind as to how it didn’t make the cut.
I’ve heard lawyers described as the “engineers of the arts.” We learn to take ideas and positions, apply the law and mould it all into coherent arguments using language and logic. There is something quite mechanical about the process, although undeniably creative as well. Perhaps this kind of technical training is what puts so many off the study of legal philosophy: it seems unnecessary to the task at hand. Yet in other parts of the world, this corner of legal education is an official and highly valued part of the curriculum.
In contrast to the engineering analogy, Brian Leiter, Professor of Jurisprudence and Director of the Centre for Law, Philosophy and Human Values at the University of Chicago, argued in The Huffington Post that law is a “discursive discipline,” just like philosophy, in that “lawyers and judges live in the domain of reasons and meanings.” While there are obvious differences between the two fields, “the key fact is that both disciplines are concerned with rational and logical thought.” According to this perspective, these similarities are just the reason why jurisprudence should be a mandatory part of legal education today.
This conversation hints at one of the great current debates amongst legal scholars and educators: when is learning for learning’s sake equally important as learning for practical application? I’m a very strong proponent of experiential education in law school; however, in my opinion, a law degree should be a complete and well-rounded education that includes as much critique as application. I don’t think you can do one without the other. Lawyers, rightly or wrongly, are given much power and influence in society by virtue of being “experts” of the law that governs the entire population. Shouldn’t we also be experts in how and why it was formed?