Time-Mindedness and Jurisprudence

Gerald Postema offers a gentle but damning critique of contemporary analytic jurisprudence for being antisocial , anti-philosophical, ahistorical, and, ultimately, mistaken not only about the province of jurisprudence but the nature of law. He also offers an elegant restatement of what jurisprudence with a wider ambition must be like; and it is a jurisprudence in which time and history are central. 1 Postema's basic diagnosis is that analytic jurisprudence accepts a peculiarly narrowing premise of Austin's: that the province of jurisprudence – by which Austin meant the subject-matter it studies – is solely the " core concepts of the professional practice of law—concepts of legal right and duty and the like. " 2 Although Hart and his successors in the Anglo-American tradition mostly reject Austin's definition of law as commands backed by threats, and not all are positivists, Postema believes they retain Austin's narrow understanding of the province of jurisprudence. Jurisprudence is the province of legal concepts used in professional practice, which turn out to be well-suited for the tools and intellectual style of analytic philosophy. A broad understanding of law in its social, economic, cultural, religious, 2 political, and historical dimensions largely vanishes from jurisprudence so conceived. 3 Analytic jurisprudence becomes unsociable, not only to the social sciences, but also to the ambition of genuine philosophy, famously defined by Wilfrid Sellars as the endeavor to understand " how things in the broadest sense of the term hang together in the broadest sense of the term. " 4 Postema goes so far as to call analytic jurisprudence " philosophy-phobic. " 5 This is an important point, because it makes it clear that Postema's complaint is not the familiar realist and law-and-society call for replacing jurisprudence with something more scientific – a view that Postema rejects because it " effaces any ambition of a truly critical theoretical perspective on legal practice. " 6 The realists wanted less philosophy in jurisprudence, where Postema wants more. Postema levels an additional complaint against analytic jurisprudence, directly related to the theme of this conference. Analytical jurisprudence largely ignores the history of law, and also the history of jurisprudence – two different, if related, points. Its most distinctive intellectual style consists of drawing distinctions, formulating precisely-worded principles, and testing them against linguistic and moral intuitions; but Postema objects that " [p]hilosophy that proceeds primarily by plumbing and pumping intuitions is 3 This complaint is reminiscent of …