The Politics Of Jurisprudence

Roger Cotterrell THE POLITICS OF JURISPRUDENCE A Critical Introduction to Legal Philosophy Butterworths For Ann, David and Linda, again The Politics of Jurisprudence A Critical Introduction to Legal Philosophy Roger Cotterrell LLD. MSc (Soc) Reader in Legal Theory in the University of London (Queen Mary and Westfield College) Butterworths London and Edinburgh 1989 United Kingdom Butterworth & Co (Publishers) Ltd, 88 Kingsway, LONDON WC2B 6AB and 4 Hill Street, EDINBURGH EH2 3JZ Australia Butterworths Pty Ltd, SYDNEY, MELBOURNE, BRISBANE, Adelaide, Perth, Canberra and Hobart Canada Butterworths Canada Ltd, TORONTO and VANCOUVER Ireland Butterworth (Ireland) Ltd, DUBLIN Malaysia Malayan Law Journal Sdn Bhd, KUALA LUMPUR New Zealand Butterworths of New Zealand Ltd, WELLINGTON and AUCKLAND Puerto Rico Equity de Puerto Rico, Inc, HATO REY Singapore Malayan Law Journal Pte Ltd, SINGAPORE USA Butterworth Legal Publishers, AUSTIN, Texas; BOSTON, Massachusetts; CLEARWATER, Florida (D & S Publishers); ORFORD, New Hampshire (Equity Publishing); ST PAUL, Minnesota; and SEATTLE, Washington All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright holder except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, 33-34 Alfred Place, London, England WC1E 7DP. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. © RBM Cotterrell 1989 Typeset by Kerrypress Ltd, Luton Printed by Billing and Sons Ltd, Worcester Preface This book aims to survey key theoretical contributions to the field of modern Anglo-American legal philosophy in order to outline debates about the nature of law which these contributions have provoked. In this sense it is intended as a general introduction to central areas of modern legal theory. However, it attempts something more than most such general introductions. It seeks to put the debates in the literature into a broader context than that in which they are usually presented in introductory texts. It is intended not just as a survey of central areas of the field but also, more specifically, as a discussion of what Anglo-American legal philosophy, in some of its dominant forms, is and has been for. This involves examining approaches to legal philosophy in Britain and the United States in the light of conditions in which those approaches have emerged since the beginnings of modern legal professionalisation in both countries. I argue in these pages that the succession of dominant approaches in Anglo-American legal philosophy since the nineteenth century - the approaches which today make up much of modern jurisprudence - can usefully be understood, to a large extent, as responses to particular political conditions and also, especially, conditions of legal professional practice. Thus, t