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The Challenge of Jurisprudence: to Build a Science and Philosophy of Law

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The Challenge of Jurisprudence: to Build a Science and Philosophy of Law Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1-1951 The Challenge of Jurisprudence: To Build a Science and Philosophy of Law Jerome Hall Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Jurisprudence Commons, Legal History Commons, and the Legal Profession Commons Recommended Citation Hall, Jerome, "The Challenge of Jurisprudence: To Build a Science and Philosophy of Law" (1951). Articles by Maurer Faculty. 1417. https://www.repository.law.indiana.edu/facpub/1417 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The Challenge of Jurisprudence: To Build a Science and Philosophy of Law by Jerome Hall • Professor at the Indiana University School of Law 0 Jurisprudence, says Professor Hall, is a subject that seems remote from the daily of horno sapiens. Jurisprudence also practice of most lawyers. Most members of the profession dismiss it as academic provides a record of the ways in and impractical, he says, and yet ultimately the survival of our legal principles de- which the most profound men grap- pends upon lawyers' building a rational system of law based on truth and rightness pled with these difficulties. In doing that it comprises a body of knowl- -a philosophical system that members of the Bar understand, not as an academic edge and a methodology by use of subject, but as a system of law that is superior to its competitors in satisfying human which we can better solve our prob- needs and aspirations. This article is taken from an address delivered before the lems. Thus the challenge of juris- Indianapolis Bar Association last autumn. prudence, stated from another view- point, is a challenge to acquire that The is an uninhibited adventure in ideas, E challenge of jurisprudence is kind of knowledge. the unrecordable flash of creative ultimately the challenge to live the The major problems of our times fullest, best life of a lawyer. But some mind probing the most difficult hu- reveal the clash of sharply conflicting of man problems. Accordingly, if, smit- the subjects I shall discuss will interests. They are problems whose ten by the sting of an inexhaustible seem remote from daily practice. To solution depends on factual knowl- that extent jurisprudence challenges love of wisdom, we rise above the edge, the discovery of sound values, accepted notions of the meaning of inertia of technicality, we can con- the use of rational methods of inves- the lawyer's vocation. It is a chal- fidently predict that men will con- tigation and the threat or applica- lenge to re-examine and revaluate tinue to cultivate the soil of juris- tion of organized coercion. In a word, prudence imaginatively in the future the pattern of legal practice. Certain- they are, basically, legal problems. ly it is a fact that many lawyers have -though temporary blackouts are That is why the challenge of juris- discovered that their participation in not impossible. prudence addresses itself with par- various activities of a jurisprudential ticular emphasis to the lawyer. It nature is far from being a handicap. Challenge of Jurisprudence amounts to a challenge to do the best They provide living demonstrations Is Chance To Acquire Knowledge possible thinking on law and legal of the significance which jurispru- Recognition of the permanence of methods and thereby raises the level dence can confer on the practice of jurisprudence implies certain endur- and widens the range of professional law. ing qualities of human nature which skill and influence. jurisprudence is the play of the bring reassurance in times of stress Just as philosophy and science speculative mind on law and legal when men, sensing the limitations of problems. Its history included the finite beings, feel as impotent as were born in ancient Greece, so, too, thinking of the greatest philosophers sticks tossed on a wrathful ocean of was jurisprudence. Greek genius in all places and times until, some- passion and irrationality. Jurispru- sought the reason of everything. Its what over a century ago, jurispru- dence encourages us not only because searching mind fused with an incom- dence became the dismal science of it heightens regard for human na- parable sense of beauty so that what modern times, with a corresponding- ture; it is also evidence that our for Eastern peoples was a mass of ly narrow appeal. But jurisprudence problems are not entirely new but isolated information, like geometric traditionally and in its recent revival are, instead, the perennial difficulties measurements and rules of thumb, January, 1951 - Vol. 37 23 The Challenge of Jurisprudence became in Greece organized knowl- their desire. Socrates' efforts to refute tions to the individualizing processes edge, science, Every science has a this position paralleled the discover- of government. rational as well as a factual aspect. ies of the earlier scientists. Every- Plato and Aristotle were not only Without the thread of reason, ex- thing we see about us changes in- great theorists; they were great re- pressed in laws, principles and the- cessantly you can't step into the searchers as well. Plato's Academy ories, men stumbled along in a crude same river twice, it was said (even drafted codes of laws for many com- trial-and-error method of investiga- once, someone added, because it is munities and Aristotle studied 150 tion. The Greeks created the meth- (hanging every split second you are different constitutions. They can ods and the ideas which established putting your foot into it.) But Greek hardly be said to have fully explored Western science and philosophy and scientists had discovered that under- the possibilities of constructing an made them imperishable values of lying the phenomena of ceaseless empirical science of law. But, for our culture. So, too, of the jurispru- change are certain constants, the laws that matter, we are still largely in the dence they left us. of science, not visible entities but stage of discussing the prolegomena able to be apprehended mentally. of legal science rather than of carry- They discovered Greek Jurisprudence ultimate truths re- ing on the researches necessary to Grappled with Major Problems garding the physical world, the con- construct such a discipline. Finally, stitution of matter and the processes it has recently become rather per- But jurisprudence 'was not the cre- of motion and change. Arid so suasive that the basic legal concep- ation of a gifted people indulging Socrates, turning thought to human tions were familiar notions among in idle speculation. It was also a way, beings and the needs of a social- the Greeks though, again, in this indeed the most important way, of political community, searched for en- branch of their jurisprudence, we grappling with the major problems during principles of conduct, abid- find nothing like the elaborate detail o' their times. By the end of the ing values and methods of discover- provided by Austin and his success- seventh century B. C., the clash of ing them and proving their validity. 0s. interests had already culminated in In the pursuit of his investigations, revolution. The economic structure he made many discoveries which Greek Thinking crystalized in large land owners, Was Not Departmentalized Plato, his student and disciple, fixed peasant farmers, maritime and com- It is impossible here to discuss permanently in the foundations of other mercial classes. Their first efforts Greek contributions to the founding jurisprudence. Plato nurtured the to resolve the social conflicts are of jurisprudence, but one additional Socratic seed; and in a brilliant style, represented in the codes of Draco point of particular never since even approximated in importance must and Solon (594). But the clash of be noted. The Greeks philosophical writing, he added his did not de- interests continued. In addition, con- partmentalize jurisprudential ideas which have their thinking about siderable information about the var- social and political problems. What profoundly stirred thoughtful per- ious Greek city-states and about we call jurisprudence was an integral sons for more than 2000 years. In his foreign countries-Egypt, the Near part of political science, and ethics immortal Dialogues the method of East, Africa, indeed, about all the had the dominant dialectics, the so-called Socratic role in this disci- lands bordering on the Mediterra- pline. The method, is elaborated; and lawyers modern age saw the rise nean made it abundantly clear to of specialization with concomitant who have barely heard of Plato have the seafaring Athenians that laws increase in certain been the beneficiaries for centuries. types of efficiency and customs differed widely. The de- purchased, however, at the cost of The nature of law and justice is ex- feat of Persia led to the rise of Athens understanding the interrelations plored. One of the two or three and as a great naval power, supreme in the whole of social-political prob- greatest trials in all history is pre- Greece and set on its course of em- lems. sented. Socrates, condemned to death pire. The comrbination of practical I have said that the Greek dis- by a thoughtless jury, refuses to per- power-politics, the drive for suprem- coveries and contributions were not mit his powerful friends to arrange acy, the clash of economic and polit- the creations of idle speculation but his escape. Instead, he chooses death, ical interests, and the gift of specula- were born of necessity. In fact we extolling tion set time scene and provided the the law of his native city may say that Greek jurisprudence stimuli for the birth of jurisprudence.
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