Allan Hutchinson

The relationship between democracy and constitutions is a long and fractious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance; the recent experience of the U.S. State of California offers itself as a good forcing-ground for these ideas. In short, from a democratic standpoint, the challenge for the citizenry is not so much about defining the values of constitutions, but constitutions whose change is outside the scope of popular decision making, supposed to exclusively take place through judicial interpretation or through an amendment formula designed precisely to make change difficult and unlikely. Too often, constitutions place checks and limits on democratic participation in the name of some other set of vaunted truths or elite-favouring values. For the strong democrat, it is formal constitutions and their institutional paraphernalia that do more to inhibit and dull democracy's emancipatory potential than to nurture and fulfil it.

The recent publication of a lost essay by Herbert Hart is important for an historical appreciation of his work, but its likely celebration is a sad testament to the poverty and lethargy of contemporary legal thought. I use this occasion to review the state and condition of contemporary legal theorising. After positioning Hart's essay in the prevailing jurisprudential milieu, I highlight the thrust and the failings of the three main traditional approaches to contemporary legal theorising in regard to the nature and operation of 'judicial discretion'. Then, I suggest an alternative approach to legal theorising that recommends a more satisfying way of proceeding

As their title suggests, "legal philosophers" are more philosophers than lawyers; they are in the business of thinking generally about law rather than doing law in any practical way. While lawyers tend to be jurisdiction-specific in their affiliations and competence, legal philosophers are under no such restriction. At their most ambitious, legal philosophers claim dominion over a jurisprudential realm that is delineated by neither geography nor history. Indeed, presenting themselves as intellectual citizens of the whole legal world, their crafted contributions are not intended to be judged by the contingent standards of local usefulness, but by the pure canons of universal validity. As such, the professional commitment and authority of legal philosophers is based upon their capacity to deal with parochial matters of law, but in a way that rises above and is not reducible to their local circumstances. Accordingly, while these legal philosophers might talk about morality and politics as they relate to law, they do so only in the most theoretical and abstract terms. For them, philosophy inhabits the realm of "truth and necessity" in which the contingent and the local holds little or no analytical sway. The contemporary champion of legal philosophy is undoubtedly Joseph Raz. His extensive and sophisticated work represents the high-water mark of analytical jurisprudence. With the recent publication of Between Authority and Interpretation, he has provided an accessible and stylish showcase of his philosophical theory of law that is as rigorous and demanding as it is provocative and controversial. Because this book builds on as it clarifies and develops the main themes of his work over the past four decades, it offers itself as a convenient focus for a more general assessment of Raz's whole oeuvre. In traversing law's terrain, he is adamant that, whatever the purposes and methods of other disciplines (e.g., sociology, history, anthropology, etc.), any philosophical analysis worth its name must concern itself with delivering insights and understanding about law that are of universal significance. While general conclusions about local laws and systems are important and helpful, they will have no philosophical value unless they can say something general and enduring about law as an institutional phenomenon. A corollary of this is that legal philosophy must insulate itself from contingent moral and political influences that will compromise or contaminate its project of making statements about law?s nature and operation that are not only universally valid, but also locally accurate. In this essay I challenge Raz's philosophical ambitions - and, therefore, much contemporary work in legal philosophy - by concentrating on his crucial methodological distinction between the local and contingent and the universal and necessary. It is my contention that, as there are no places where "moral and political desirability" do not play a role, "necessity" has no reign. Accordingly, I argue that legal philosophy cannot live up to its own methodological expectations and standards of validation. For all its impressive erudition and sophistication, therefore, Raz?s work is a manifesto of "local enthusiasms" that, while instructive and useful in themselves, can lay no claim to reveal the necessary features of law's existence. His work comprises some very contingent and localised generalisations that no amount of philosophical razzle-dazzle can elevate to universal and global truths about law. Blinded by the philosophical light, there is more formal brilliance than substantive bottom-line to Raz's jurisprudence

Great cases are those judicial decisions around which the common law develops. This book explores eight exemplary cases from the United Kingdom, the United States and Australia that show the law as a living, breathing and down-the-street experience. It explores the social circumstances in which the cases arose and the ordinary people whose stories influenced and shaped the law as well as the characters and institutions that did much of the heavy lifting. By examining the consequences and fallout of these decisions, the book depicts the common law as an experimental, dynamic, messy, productive, tantalizing and bottom-up process, thereby revealing the diverse and uncoordinated attempts by the courts to adapt the law to changing conditions and shifting demands. Great cases are one way to glimpse the workings of the common law as an untidy but stimulating exercise in human judgment and social accomplishment.

Any effort to understand how law works has to take seriously its main players – judges. Like any performance, judging should be evaluated by reference to those who are its best exponents. Not surprisingly, the debate about what makes a 'great judge' is as heated and inconclusive as the debate about the purpose and nature of law itself. History shows that those who are candidates for a judicial hall of fame are game changers who oblige us to rethink what it is to be a good judge. So the best of judges must tread a thin line between modesty and hubris; they must be neither mere umpires nor demigods. The eight judges showcased in this book demonstrate that, if the test of good judging is not about getting it right, but doing it well, then the measure of great judging is about setting new standards for what counts as judging well.

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely. Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

The Province of Jurisprudence Democratized explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. He emphasizes the contested concepts of 'truth', 'facts' and 'law/morality relation' and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The Author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.

Toward an Informal Account of Legal Interpretation offers a viable account of law, judicial decision-making, and legal interpretation that is as fresh as it is familiar. The author expertly challenges the dominant mode of formalist theorizing and proposes an explanatory account of legal interpretation that can profitably be understood as an 'informal' intervention. Such an informal approach has no truck with either the claims of the formalists or those of the anti-formalists. Hutchinson insists that, when understood properly, legal interpretation is an applied exercise in law-and-ideology; it is both constrained and unconstrained in equal measure. In developing this informalist account through a sustained application of the 'no vehicles in the park' rule, this book is wide-ranging in theoretical scope and substance, but also accessible and practical in style.

Law is best interpreted in the context of the traditions and cultures that have shaped its development, implementation, and acceptance. However, these can never be assessed truly objectively: individual interpreters of legal theory need to reflect on how their own experiences create the framework within which they understand legal concepts. Theory is not separate from practice, but one kind of practice. It is rooted in the world, even if it is not grounded by it. In this highly original volume, Allan C. Hutchinson takes up the challenge of self-reflection about how his upbringing, education, and scholarship contributed to his legal insights and analysis. Through this honest examination of key episodes in his own life and work, Hutchinson produces unique interpretations of fundamental legal concepts. This book is required reading for every lawyer or legal scholar who wants to analyse critically where he or she stands when they practice and study law.

This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process rather than a miraculous one. In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up.