The Analytic Jurisprudence of the New Private Law — Patrick Goold

Post by guest blogger Patrick Goold

Backed by an impressive array of renowned legal scholars, and the subject of a Harvard Law Review symposium, the New Private Law (NPL) project has gripped the attention of jurists throughout the common law world. Yet, despite the attention this enterprise has quickly garnered, there is one curious aspect of the development that remains largely unexamined. That is, in challenging us to “understand private law” on its own terms, much of the NPL project falls within the boundaries of “analytic jurisprudence.” This focus on analytic questions is surprising because of the suspicion, and sometimes hostility, the American legal academy has traditionally shown towards this branch of legal scholarship. Therefore, in this post, I intend to demonstrate how analytic jurisprudence lies at the core of the NPL project and thereafter, to defend NPL’s reliance on analytic methods against some common critiques that will surely be presented sooner or later.

Analytic jurisprudence is the attempt to clarify the nature of law and legal concepts. Such scholarship is embedded within the larger tradition of analytic philosophy. This philosophy, associated with the likes of Bertrand Russell and G.E. Moore, attempts to elucidate the basic concepts of the empirical world. For example, what is “truth”? What is “love?” What does it mean to say someone acted “intentionally?” In answering these questions, the analytic philosophers became associated with a certain style and method. They were known for eschewing broad sweeping generalizations, for their focus on logic, their attention to detail and appreciation of nuanced language. It is the application of this mode of thinking to the world of law that is embodied by analytic jurisprudence. The leading example of this scholarship is H.L.A. Hart’s, The Concept of Law, in which Hart poses the question, what is “law?” In the American context, the most significant work of analytic jurisprudence is arguably Wesley Newcomb Hohfeld’s attempt to understand the fundamental elements of juridical relationships.

Analytic jurisprudence is at the very core of the NPL project. The project seeks to “understand” private law in terms that are not purely functionalist. Rather than confine itself to mere analysis of the law’s efficiency or fairness, the scholarship tries to elucidate the fundamental “concepts and principles entrenched in the law.”  In setting this agenda, the scholarship poses a number of purely descriptive questions, for example: what is private law? What distinguishes it from public law? What are the boundaries of private law (does it include corporate law?)? What do the concepts of rights, duties, and wrongs mean in private law? And, in answering these questions, we see the cast of NPL scholars adopting the methods and style familiar to analytic jurists.  In true Hohfeldian mode, we find the NPL scholars decrying “sloppy” legal analysis, as well as adopting a rigorous focus on language. Certainly, NPL does not confine itself to this methodology, but in posing these questions, the whole project seems to put analytic jurisprudence at its foundation, with the hope that it will allow better normative theory to follow.

However, adopting the techniques of the analytic jurists is risky. Doing so exposes NPL scholarship to some misguided critiques that typically are leveled against analytic jurisprudence. Worst of all is the claim that analytic jurisprudence is “Legal Formalism.” This is simply untrue. As Hart stated over fifty years ago in his famous Holmes lecture, to mix Formalism and analytic jurisprudence together is an “entire misconception of what analytic jurisprudence is.” Legal Formalism is a theory of adjudication. It states that law is a closed system of rules that are determinate and which judges can apply without recourse to “non-legal” considerations such as efficiency or justice. Its competitor, Realism, rejects these tenets arguing that rules are indeterminate and judges therefore decide based on their normative instincts. By contrast, analytic jurisprudence is not a theory (and certainly not a theory confined to adjudication) but a methodology. Much as the economic analysis of law applies economic theory to analyze the efficiency of legal rules, analytic jurisprudence applies the tools and concepts of analytic philosophy to determine the true nature of legal concepts. As a result, whether one proclaims to be an “analytic jurist” says nothing about whether one is a Formalist or Realist. It is perfectly plausible to be both an analytic jurist and a Realist. Indeed, despite his criticism of both Formalism and Realism, arguably Hart, who claimed that legal rules were “open-textured,” lent more to the Realist side of the spectrum on adjudication. Even those on the left and the far left have adopted conceptual analytic tools (remember, according to the CLS “all law is politics”).

The second misguided critique is that as the literature is primarily descriptive rather than prescriptive, it is simply irrelevant. This is indeed a more challenging critique. But nevertheless, three standard responses are as follows. Firstly, one could claim that we need to know what certain concepts mean in order to engage in dialogue. My neighbor and I need to have some understanding of what we mean by a “right” if we are debating his right to walk on my land. Another answer is that understanding the law is necessary in order to debate what the law ought to be. We must first understand what a corporation is, before trying to decide whether corporations should have a right to political speech. And a final, but perhaps more controversial, benefit is that understanding the legal system is an end in itself. Wittgenstein thought the ultimate goal of philosophy was elucidation of the world; perhaps that is the same for analytic jurisprudence. Generations of law students have found some value in works like those of Hohfeld. I suspect that this work has such an enduring presence in our community simply because it allows generations of lawyers to understand their chosen discipline a little better.

But it’s hardly all bad news. Recognizing the links between NPL and analytic jurisprudence exposes it to some sadly predictable attacks, but it also reveals a great source of literature to aid NPL theory. The world of analytic jurisprudence has been developed not only by Hart and Hohfeld, but by the like of Jules Coleman, Joseph Raz, Neil MacCormick, William Twining, and Peter Birks. If NPL scholars can move past the critique that its reliance on analytics makes it a politically irrelevant Formalist pursuit, then the works of these scholars offers a wealth of insights to help us understand our new private law better.