More Reasons Why Jurisprudence Is Not Legal Philosophy

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More Reasons Why Jurisprudence Is Not Legal Philosophy

Introduction

Too many people, legal theory, philosophy of law, legal philosophy, and jurisprudence are terms that mean the same thing in the legal field. Most commonly, many people tend to relate legal philosophy and jurisprudent as being the same thing, which is not valid. The confusion between the meaning of the two terms comes as a result of authors not clearly distinguishing the two terms, but an article by Roger Cotterrell explains the distinction between the two terms. According to Cotterrell (2014), he states that jurisprudent is not legal philosophy, and he gives his reason behind his sentiments.

Cotterrell’s Position

According to Cotterrell, he states that there is a vast difference between legal philosophy and jurisprudence, but also jurisprudence is losing its ground on issues of legal philosophy. The complete takeover between legal philosophy and jurisprudence has not yet taken over as the schools of law have given the philosophy department to take over generating the general account of law (Robertson, 2017). The reason why the philosophers have been given total control over these issues is that lawyers feel as if their contribution is not taken seriously and not considered, which results in living the issue in the hands of the philosophers.

Professionals need to be placed in a field that suits them to prevent confusion, especially in the academic field. Having professional teach a field or a course that they have not specialized in it brings confusion to the students because these professionals use different techniques to teach a course which is not suitable for that specific field of study (Robertson, 2017). For instance, Brian Leiter who has a degree in law but has specialized in philosophy to Ph.D. level, Leiter has more specialization in philosophy, so in the instance, he is allowed to teach law to students, he uses philosophical approaches to teach law which results in creating confusion to the students. Having people who are not qualified in finding a solution to a problem in a field that they do not specialize in leads to more negative results because of the use of different approaches to the problem.

Different scholars have come up with the various definition of jurisprudent to show the difference between what it means and what legal philosophy means to show there relation or difference between the two (Robertson, 2017). Cotterrell critiques the definition given by other scholars stating that they are half baked and do not conform to the true meaning of jurisprudent. He says that jurisprudent cannot conform or developed by other fields of study apart from the law. Also, it cannot be generally described as it entails a lot of, and it is not just a part of the legal system.

Fish’s Contribution

According to Fish, he believes that there is a distinctive difference between jurisprudence and legal philosophy, and there is no comparison between the two. He also mentions that he believes that legal philosophy is not a superior practice of law. It is noted that legal philosophy is not focused on jurist experience; instead, it deals more with problems that are defined by philosophical interest. However, Fish disagrees with Cotterrell by mentioning that philosophy has no particular consequence for any other field or practice (Fish, 2003). Fish claims that philosophy is not a master of all arts, as previously claimed by philosophers because it does not directly affect other fields of practice.

The main issue why Fish has a different position of philosophy by using the anti-foundationalism epistemology (Robertson, 2017). Foundationalism states that people can attain an unmediated and direct perception of reality that is independently characterized by the human‘s perception. It states that it is by accurate apprehension of the exterior realism that humans can arrive at the truth. Nevertheless, on the other hand, the anti-foundationalism perspective claims that foundationalism perception is not possible because human reality is shaped by humans themselves (Fish 1989, p.326). Fish believes that it is human nature for them to live in a world with order and with significance in facts such as values and beliefs.

The primary aim of Fish to critique the foundationalism epistemology is because he says it built on the impossible beginning of the self. The foundationalism perspective tries to avoid the fact that human beings are limited and that there is a distorting nature of human beings which tries to paint them as mere accidents or contingent features. Fish claims that if human beings were locally rooted beings, it might show the relevant difference between jurisprudence and legal philosophy. Fish agrees with Cotterrell’s description of jurisprudence, where he states that it is a local theory, and it is rooted in a particular socio-legal situation reality.

Through fish arguments on anti-foundationalism, he gains more information that goes hand in hand with Cotterrell’s idea about rejecting that of legal philosophy has proceeded of jurisprudence. He says that for human experience to have a shape, it does so because of the background that is already in place (Robertson, 2017). It is due to the shared background in human beings that people tend to have the same meaning. On practice should not affect another, and it should not affect each other, and with that, then the relationship between legal philosophy and jurisprudence does not exist. As mentioned earlier, philosophy is not a superior art that affects other art, so it does not affect jurisprudence.

Disciplinary Autonomy, Interdisciplinary, And Interdisciplinary Borrowing

There is an objection to Fish’s analysis as it is termed as being defective since his thesis separates all tasks into different and separate units which barely not affected or influenced by other factors. His analysis does not explain interdisciplinary coordination or cooperation, which exists in the real world, as there is no independent practice (Robertson, 2017). Fish defends his arguments by stating that independence of practice is not attained by separating them from others but out is achieved by taking exclusive jurisdiction over the specific tasks that that are to be done in the society. Fish claims that disciplinary autonomy is claimed to have a direct relevant relationship between the jurisprudence and legal philosophy, stating that practice A can borrow from practice B.

Do Cotterrell and Fish Have Incompatible Epistemologies?

There is an incompatibility between Fish and Cotterrell, although they both agree that there is a difference between legal philosophy and jurisprudence, each of them has taken a different route to come to their decision (Robertson, 2017). For example, Cotterrell focuses more on socio-legal and sociological law while, on the other hand, Fish focuses more on denying that the anti-foundationalism epistemological have any relative consequences and does not pose any threat to intentions facts. Universal truth on this matter cannot be attained or reached without controversy, which is contributed to the fact that every individual has knowledge of something, and they believe what they know is the truth.

Conclusion

In conclusion, both Fish and Cotterrell agree that there is no direct relationship between jurisprudence and legal philosophy. The two also decide that jurisprudence is rooted in a practice that is specific to a particular place and time and legal culture. While on the other hand, legal philosophy aims at rising above local settings to grasp timelessness and universal truth. Although each one of them uses different approaches, the end up with the same solution that jurisprudence is not legal philosophy.

References

Cotterrell, R. (2014). Why Jurisprudence Is Not Legal Philosophy. Jurisprudence: An International Journal of Legal and Political Thought 5(1): 41–55.

Fish, S. (2000). Theory Minimalism. San Diego Law Review 37: 761–76.

Fish, S. (2001). Holocaust Denial and Academic Freedom. Valparaiso University Law

Review 35(3): 499–524

Robertson, M. (2017). More Reasons Why Jurisprudence Is Not Legal Philosophy. Ratio Juris, 30(4), 403-416.