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Jurisprudence
Theory and Context
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Jurisprudence
Theory and Context

Sixth Edition

Brian Bix

Carolina Academic Press

Durham, North Carolina
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Copyright © 2012 Brian Bix

All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Bix, Brian.
Jurisprudence : theory and context / Brian Bix. -- 6th ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-61163-311-5 (alk. paper)
1. Jurisprudence. 2. Law--Philosophy. I. Title.

K230.B5786A348 2012
340'.1--dc23 2012025898

Carolina Academic Press

700 Kent Street
Durham, NC 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com

This edition of
Jurisprudence: Theory and Context, 6th edition
is published by arrangement with
Sweet & Maxwell
part of Thomson Reuters (Professional) UK Limited
Aldgate House, 33 Aldgate High Street,
London EC3N 1DL

Printed in the United States of America

 For Joseph Raz

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 Preface to the Sixth Edition
This book derives from efforts over the course of two decades to teach
jurisprudence: in particular, the struggle to explain some of the more
difficult ideas in the area in a way that could be understood by those
new to the field, at the same time without simplifying the ideas to the
point of distortion. This text is grounded in a combination of frustra-
tions: the frustration I sometimes feel as a teacher, when I am unable to
get across the beauty and subtlety of the great writers in legal theory1;
and the frustration my students sometimes feel, when they are unable to
understand me, due to my inability to explain the material in terms they
can comprehend.
I do not underestimate the difficulty of the task I have set myself, and
I am sure that this text does not always achieve all that it sets out to do.
At the least, I hope that I do not appear to be hiding my failures behind
legal or philosophical jargon. H. L. A. Hart once wrote the following in
the course of discussing an assertion made by the American judge and
theorist Oliver Wendell Holmes, Jr.:

“To make this discovery with Holmes is to be with a guide whose words may
leave you unconvinced, sometimes even repelled, but never mystified. Like our
own [John] Austin . . . Holmes was sometimes clearly wrong; but again like
Austin he was always wrong clearly.”2

I do not purport to be able to offer the powerful insights or the elegant

prose of Holmes and Hart, but I do strive to emulate them in the more
modest, but still difficult task, of expressing ideas in a sufficiently straight-
forward manner such that when I am wrong, I am “wrong clearly”.
This book is part introductory text and part commentary. In the
preface to his classic text, The Concept of Law, Hart stated his hope that his
book would “discourage the belief that a book on legal theory is prima-
rily a book from which one learns what other books contain.”3 My aims

1
Unlike some writers, e.g. William Twining, “Academic Law and Legal Philosophy: The
Significance of Herbert Hart”, (1979) 95 Law Quarterly Review 557, at pp. 565–580, I do
not distinguish between “jurisprudence”, “legal theory”, and “legal philosophy”, and I
will use those terms interchangeably.
2
H. L. A. Hart, “Positivism and the Separation of Law and Morals”, 71 Harvard Law
Review 593 (1958).
3
H. L. A. Hart, The Concept of Law (2nd ed., Clarendon Press, Oxford, 1994), p. vi.

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 viii preface to the sixth edition

are less ambitious: the present text is a book meant to inform readers
what other books contain—the idea being that the primary texts are not
always as accessible as they might be. However, this book is distinctly
not meant as a substitute for reading those primary texts: the hope and
the assumption is that readers will go to the primary texts first, and will
return to them again after obtaining whatever guidance is to be offered
in these pages. Additionally, there are a number of places in the text
where I go beyond a mere reporting of the debate, and try to add my
own views to the discussion. This is especially true of Chapters 2 and 11,
but, in smaller ways, throughout the other chapters of the book as well.

why jurisprudence?

Why study jurisprudence?

For many students, the question has a simple answer: for them, it is a
required course which they must pass in order to graduate. For students
in this situation, the questions about any jurisprudence book will be
whether it can help them to learn enough of the material to get them
where they need to be: passing the course (or doing sufficiently well in
the course that their overall class standing is not adversely affected).
However, even students who have such a minimal survival attitude
towards the subject might want to know what further advantage they
might obtain from whatever knowledge of the subject they happen to
pick up.
At the practical level, reading and participating in jurisprudential
discussions develops the ability to analyse and to think critically and
creatively about the law. Such skills are always useful in legal practice,
particularly when facing novel questions within the law or when trying
to formulate and advocate novel approaches to legal problems. So even
those who need a “bottom line” justification for whatever they do should
be able to find reason to read legal theory.
There is also a sense that philosophy, even where it does not have
direct applications to grades or to practice, has many indirect benefits.
Philosophy trains one to think sharply and logically; one learns how to
find the weaknesses in other people’s arguments, and in one’s own; and
one learns how to evaluate and defend, as well as attack, claims and
positions. Philosophy could thus be seen as a kind of mental exercise
program, on a par with chess or bridge (or theology). Giving the cen-
trality of analytical skills to what both lawyers and law students do, one
should not quickly dismiss any activity that can help one improve those
abilities.
At a professional level, jurisprudence is the way lawyers and judges
reflect on what they do and what their role is within society. This truth
is reflected by the way jurisprudence is taught as part of a university

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 the selection of topics ix

education in the law, where law is considered not merely as a trade

to be learned (like carpentry or fixing automobiles) but as an intellec-
tual pursuit. For those who believe that only the reflective life is worth
living, and who also spend most of their waking hours working within
(or around) the legal system, there are strong reasons to want to think
deeply about the nature and function of law, the legal system, and the
legal profession.
Finally, for some (whether the blessed or the cursed, one cannot say),
jurisprudence is interesting and enjoyable on its own, whatever its other
uses and benefits. There will always be some for whom learning is inter-
esting and valuable in itself, even if it does not lead to greater wealth,
greater self-awareness, or greater social progress.

the selection of topics

One can find entire books on many of the topics discussed in the present
volume in short chapters (or parts of chapters). I have done my best to offer
overviews that do not sacrifice the difficulty of the subjects, but I fear that
some mis-reading is inevitable in any summary. In part to compensate for
the necessarily abbreviated nature of what is offered, a list of “Suggested
Further Reading” is offered at the end of each chapter (and there are foot-
note citations to the primary texts in the course of the chapters) for those
who wish to locate longer and fuller discussions of certain topics.
A related problem is that in the limited space available, I could not
include all the topics that are associated with jurisprudence (a course
whose content varies greatly from university to university, and even from
teacher to teacher in the same university). The variety of topics included
in one source or another under the category of jurisprudence is vast, so
inevitably there always seems to be more missing from than present in
any text. Through my silence (or brevity), I do not mean to imply that
the topics not covered are not interesting, not important, or not properly
part of jurisprudence.
It is inevitable that those using this book will find some chapters more
useful for their purposes than others, even (or especially) if they are stu-
dents using this book to accompany a general jurisprudence course. In
particular, the topics in the first part of the book are usually not covered
in university courses, though I believe that thinking through some of the
questions raised there might help one gain a deeper or more coherent
view of jurisprudence as a whole.
One caveat I must offer is that references to legal practice offered in
this book will be primarily to the practices in the American and English4

4
I am following the usual convention of using the term “English legal system” to refer to
the legal system that extends over both England and Wales.

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 x preface to the sixth edition

legal systems, as these are the systems with which I am most familiar.
It is likely (though far from certain) that any comments based on those
two legal systems would be roughly generalised to cover all common law
systems. The extent to which my lack of familiarity with civil law systems
biases my views about legal theory and about the nature of law I must
leave to others to judge.
I take seriously the obligation that comes with publishing a new
edition of an existing book. I believe that any new edition should offer
resources that the prior edition did not have. While there is rarely time
to revisit and rewrite everything, in the preparation of the sixth edition
of this book, many of the chapters have been expanded, discussions of
the most recent scholarship has been added throughout, and many topics
have been significantly rethought. While there are changes throughout
the book, the most extensive changes are located in Chapters 2, 3, 7, 9,
15, 18, 21, and 22.
Where possible, I have tried to include references (especially in each
chapter’s “Suggested Further Reading” list) that are readily accessible:
e.g., articles in well-known journals that would be available in most law
libraries or from electronic law journal collections (like Hein OnLine), and
articles from Internet sources (like The Stanford Encyclopedia of Philosophy
(plato.stanford.edu) and the Social Services Research Network (www.
ssrn.com)) that are available without cost (at least at the time of writing).
Work on this book often overlapped with work I was doing for other
smaller projects: sometimes work done for the book was borrowed for
other projects, and sometimes I found that work done for other projects
could be usefully incorporated in the book. An earlier version of parts
of Chapter 2 appeared in “Conceptual Questions and Jurisprudence”,
1 Legal Theory 415 (1995); earlier versions of parts of Chapters 5, 6, and
7 appeared in “Natural Law Theory”, in A Companion to the Philosophy
of Law and Legal Theory (D. Patterson, ed., Blackwell, Oxford, 1996,
2nd ed., 2010); an earlier version of brief sections of Chapters 1 and 7
appeared in “Questions in Legal Interpretation”, in Law and Interpretation
(A. Marmor, ed., Clarendon Press, Oxford, 1995), pp. 137–154; and an
earlier version of parts of Chapters 1, 2, and 14 appeared in “Questions
in Legal Interpretation”, 18 Tel Aviv Law Review 463 (1994) (translated
into Hebrew). I am grateful to the publishers of these texts for allowing
me permission to use material from those articles.
I would like to thank the following for their helpful comments and sug-
gestions: Mark Addis, Larry Alexander, Jack Balkin, Lisa Bernstein, Scott
Brewer, Keith Burgess-Jackson, Kenneth Campbell, Tom Campbell,
Richard Delgado, Anuj Desai, Anthony M. Dillof, Neil Duxbury, Neal
Feigenson, John Finnis, Stephen Gilles, Martin P. Golding, Aristides N.
Hatzis, Alex M. Johnson, Jr., Sanford N. Katz, Matthew H. Kramer,
Kenneth J. Kress, Brian Leiter, Andrei Marmor, Jerry Mashaw, Linda
R. Meyer, Martha Minow, Thomas Morawetz, Martha C. Nussbaum,

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 the selection of topics xi

Frances Olsen, Dennis Patterson, Stanley L. Paulson, Margaret Jane

Radin, Julian Rivers, Daria Roithmayr, Frederick Schauer, Scott
Shapiro, A. J. B. Sirks, M. B. E. Smith, Larry Solum, Scott Sturgeon,
Brian Tamanaha, Adam Tomkins, Lloyd L. Weinreb, Tony Weir, James
Boyd White, Kenneth Winston, Mauro Zamboni, and Yushuang (Alex)
Zheng. I am also grateful for the research assistance of Joshua Gitelson,
Annie Jacob, Galen Lemei, Ruchita Sethi, Justin Stec, Jason Steck, and
Erin Steitz.

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 Contents

Preface to the Sixth Edition vii

Why Jurisprudence? viii
The Selection of Topics ix
List of Cases xix

PART A Legal Theory: Problems and Possibilities

Chapter One: Overview, Purpose and Methodology 3

Questions and Answers in Jurisprudence 3
Descriptive Theory 4
Transforming the Question 5
To What Extent is it Legal Theory? 7
Suggested Further Reading 8

Chapter Two: Legal Theory: General Jurisprudence and

Conceptual Analysis 9
The Problem of Theories of Law 9
Conceptual Analysis 12
Alternative Purposes 19
Challenges to Conceptual Analysis 25
Boundary Lines in Law 27
Conclusion 29
Suggested Further Reading 30

PART B Individual Theories About the Nature of Law

Chapter Three: H. L. A. Hart and Legal Positivism 33

An Overview of Legal Positivism 33
Summary of Hart’s Position 37
The Rule of Recognition 40
The Internal Aspect of Rules (and of Law) 41
Open Texture 45
The Minimum Content of Natural Law 48
Inclusive versus Exclusive Legal Positivism 49
Other Approaches 52
Suggested Further Reading 55

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 xiv contents

Chapter Four: Hans Kelsen’s Pure Theory of Law 57

The Pure Theory of Law 58
Reduction and Legal Theory 61
Hart versus Kelsen 63
On the Nature of Norms 65
Suggested Further Reading 65

Chapter Five: Natural Law Theory and John Finnis 67

Traditional Natural Law Theory 67
Medieval and Renaissance Theorists 73
John Finnis 75
Natural Law Theory versus Legal Positivism 77
Other Directions 79
Suggested Further Reading 80

Chapter Six: Understanding Lon Fuller 83

A Different Kind of Natural Law Theory 83
Fuller’s Approach 84
Contemporary Views 88
Fuller and Legal Process 88
Suggested Further Reading 89

Chapter Seven: Ronald Dworkin’s Interpretive Approach 91

Earlier Writings 91
Constructive Interpretation 93
Right Answers 98
Dworkin versus Hart 100
Debunking Questions 102
Suggested Further Reading 104

PART C Themes and Principles

Chapter Eight: Justice 107

John Rawls and Social Contract Theory 109
Rawls’ Two Principles 112
Rawls’ Later Modifications 114
Robert Nozick and Libertarianism 115
Michael Sandel, Communitarianism and Civic
Republicanism 117
Feminist Critiques 120
Suggested Further Reading 122

Chapter Nine: Punishment 123

Starting Point 123
Retribution 124

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 contents xv

“Making Society Better”: Consequentialism/Utilitarianism 126

Other Objectives 127
Suggested Further Reading 128

Chapter Ten: Rights and Rights Talk 131

Hohfeld’s Analysis 134
Will Theory Versus Interest Theory 136
Other Topics 137
Suggested Further Reading 138

Chapter Eleven: Will and Reason 141

Legal Positivism and Natural Law Theory 142
Social Contracts and Economic Analysis 144
Suggested Further Reading 146

Chapter Twelve: Authority, Finality and Mistake 147

Suggested Further Reading 151

Chapter Thirteen: Common Law Reasoning and Precedent 153

Suggested Further Reading 158

Chapter Fourteen: Statutory Interpretation and Legislative

Intentions 161
Legislative Intention 161
“Plain Meaning” 163
Suggested Further Reading 166

Chapter Fifteen: Legal Enforcement of Morality 169

Dividing Lines 169
Topics 171
Hart versus Devlin 172
A New Start 175
Suggested Further Reading 178

Chapter Sixteen: The Obligation to Obey the Law 181

Obligation and Consent 182
Other Approaches 184
The Argument Against a General Moral Obligation to Obey 186
Connections 189
Suggested Further Reading 189

PART D Modern Perspectives on Legal Theory

Chapter Seventeen: American Legal Realism 193

The Target: Formalism 195

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 xvi contents

Realism and Legal Analysis 197

Realism and the Courts 200
An Overview and Postscript 202
Suggested Further Reading 204

Chapter Eighteen: Economic Analysis of Law 205

In Search of Consensus 206
The Coase Theorem 211
Description and Analysis 216
Economics and Justice 218
Game Theory 221
Public Choice Theory 224
Other Variations 226
The Limits of Law and Economics 227
Suggested Further Reading 231

Chapter Nineteen: Modern Critical Perspectives 235

Critical Legal Studies 235
“Outsider Jurisprudence” 240
Feminist Legal Theory 241
Critical Race Theory 247
Other Critical Approaches 253
Suggested Further Reading 254

Chapter Twenty: Law and Literature 257

Interpretation and Constraint 258
Other Critics 261
Miscellaneous Connections 262
Suggested Further Reading 263

Chapter Twenty One: Philosophical Foundations of the

Common law 265
Tort Law 266
Contract 267
Property 268
Criminal Law 270
Causation 271
Suggested Further Reading 272

Chapter Twenty Two: Other Approaches 275

Historical Jurisprudence 275
Free Law Movement 276
Marxist Jurisprudence 277
Scandinavian Legal Realism 278
Legal Process 279

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 contents xvii

Pragmatism 280
Postmodernism 284
Suggested Further Reading 287

Bibliography 291
Index 329

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 List of Cases

Adams v Lindsell (1818) 106 Eng. Rep. 250, KB 197n

American Booksellers Assoc. v Hudnut, 771 F.2d 323 (7th Cir. 1985),
affíd mem., 475 U.S. 1001 (1986) 171n, 245n
Re Baby M, 537 A.2d 1227 (N.J. 1988) 171n
Black-Clauson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G.
[1975] 1 All E.R. 810 163n
Board of Education v Barnette, 319 U.S. 624 (1943) 149n
Boomer v Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309
N.Y.S.2d 312 (1970) 218n
Bowers v Hardwick, 478 U.S. 186 (1986) 171n
Brown v Board of Education, 347 U.S. 483 (1954) 151n
Cooper v Aaron, 358 U.S. 1 (1958) 148n
Davis v Johnson [1979] A.C. 264 147, 163
Donoghue v Stevenson [1932] A.C. 562 158
Ellison v Brady, 924 F.2d 872 (9th Cir. 1991) 250n
Garcia v San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985) 149n
Geduldig v Aiello, 417 U.S. 484 (1974) 174n
Henthorn v Fraser [1892] 2 Ch. 27 197n
Kelo v City of New London, 545 U.S. 469 (2005) 269n
Lawrence v Texas, 539 U.S. 558 (2003) 171n
Lochner v New York, 198 U.S. 45 (1905) 198n
Lynch v Donnelly, 465 U.S. 668 (1984) 250n
MacPherson v Buick Motor Co., 217 N.Y.382, 111 N.E. 1050 (1916) 158
Madzimbamuto (Stella) v Lardner-Burke N.O. (1968) (2) S.A.L.R. 284 28n
Muller v Oregon, 208 U.S. 412 (1908) 202n
Murphy v Brentwood District Council [1990] 3 W.L.R. 414 149n
Omychund v Barker (Ch. 1744) 1 Atk. 21, 26 Eng. Rep. 95n
Palsgraf v Long Island Railroad, 248 N.Y. 339, 162 N.E. 99
(1928) 198
Pepper v Hart [1993] A.C. 591 163n, 164
Plessy v Ferguson, 163 U.S. 537 (1896) 150n
Ploof v Putnam, 71 A. 188 (Vt. 1908) 269n
Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 154n
R. v Brown [1994] 1 A.C. 212 158n, 171n
R. v Shivpuri [1987] A.C. 1 149n

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 xx list of cases

River Wear Commissioners v Adamson (1877) 2 App. Cas. 743 165n

Schwegmann Bros. v Calvert Distillers Corp., 341 U.S. 384 (1951) 163n
Southern Pacific v Jensen, 244 U.S. 205 (1917) 154n, 198n
Swift v Tyson, 41 U.S. 1 (1842) 154n
Uganda v Commissioner of Prisons, Ex p. Matovu [1966] East Afr. L.R.
514 28n
United States v Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947) 217n
United States v E.C. Knight Co., 156 U.S. 1 (1895) 196
Vincent v Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910) 269n
Young v Bristol Aeroplane Co. Ltd. [1944] K.B. 718 147n, 154n

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