THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED by ALLAN C. HUTCHINSON
| Date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00474.x |
| Published date | 01 September 2009 |
THE PROVINCE OF JURISPRUDENCE DEMOCRATIZED by ALLAN C.
HUTCHINSON
(Oxford and New York: Oxford University Press, 2009, ix and 223 pp.,
£50.00)
The great Canadian legal philosopher, Leonard Cohen, has long claimed that
`Democracy is coming to the USA'.
1
Another leading Canadian (by way of
Manchester) jurisprudential thinker, Allan Hutchinson, adds nuance to
Cohen's vision by arguing, in his typically insightful fashion, that if
democracy is indeed coming, two interrelated roadblocks stand in the way.
For Hutchinson, both the practice of legal theory in the academy and judicial
review by the courts are, at their cores, fundamentally undemocratic. The
first main thrust of Hutchinson's latest provocative intervention, The
Province of Jurisprudence Democratized, can be found in the opening lines
of the book:
Contemporary jurisprudence is based on a heist of spectacular proportions.
Perpetrated over 175 years ago and carried on by subsequent generations of
jurists, the general study of law has been hijacked by a strictly jurisprudential
approach.
2
For Hutchinson, analytical jurisprudence, in all its variants, has committed
and perpetuated one original sin, the denial and obfuscation of law's
fundamentally social and political essence. The tradition of Anglo-American
legal theory is deeply implicated in a process of masking the true nature of
law, for Hutchinson, a contingent, and messy, political process, beneath the
pretence that law is neutral and apolitical, that law is law. Grounded in a
similar jurisprudential position, judicial review then concretizes the
theoretical miasma of legal theory by applying `law' in situations which
are at their core, political, social, and economic. Hutchinson does not so
much advocate the notion of the counter-majoritarian difficulty most often
associated with critiques of judicial review as undemocratic as attack legal
reasoning itself as undemocratic. As detailed throughout The Province of
Jurisprudence Democratized, both legal theory and legal practice serve to
obfuscate the political nature of social existence.
Hutchinson spares no one in his spirited, and insightful, attack on the
fundamental self-denial of legal thinking. From John Austin, to Herbert Hart,
and thence to Joseph Raz, Ronald Dworkin, Jules Coleman, Jeremy
Waldron, and Brian Leiter, among others, Hutchinson cuts a bloody, but
often humorous, swathe through the history of Anglo-American juris-
prudence, laying waste centuries of legal philosophy as he demonstrates the
fundamental error of any pretence that `law' has an essence or a core which
can be found outside of politics, sociology, or economics. The self-satisfied,
408
1 `Democracy', track 6 on The Future (1992).
2 A.C. Hutchinson, The Province of Jurisprudence Democratized (2009) 1.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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