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Friday, May 20, 2011

Should Jurisprudence Be a Required Law School Course?

Note: the following is a guest post from Patrick Luff, who will be VAPing at W and L, and is currently at Oxford:

In doing some extracurricular reading on jurisprudence, I’ve been struck by how it can yield additional layers of understanding and meaning to any area of the law. No U.S. law school I know of requires students to take classes in jurisprudence or legal theory, and I expect that many U.S. lawyers have never read a word about jurisprudence (excluding that part that overlaps with constitutional theory, which they might get a bit of in their con law course). On the other hand, at the University of Oxford and some other law schools in the United Kingdom, undergraduate law students are required to take jurisprudence.

Granted, as most jurisprudence scholars recognize (usually on the first page of their books) that isn’t directly related to law practice­—you can’t plead that a law is invalid because it’s basis is an ought derived from an is. But if I were designing a law school curriculum from scratch, I might require jurisprudence as an upper-level course. I would make it required, rather than merely offered, because I think it would enhance students’ understanding of the other subjects they had studied. On the other hand, I wouldn’t place jurisprudence in the first-year curriculum, because I suspect that reading jurisprudence is a more enriching experience if you first understand the basics of how we use the law. Having examined various subjects in the rest of their courses, students might benefit from looking at the big picture of what law is­. I’m willing to admit, however, that my suggestion may be nothing more than the conceit of a law professor who thinks that jurisprudence is interesting, and that law students should therefore take an equal interest in the subject. Should jurisprudence be a required law school course? If so, when should students take it?


Posted by Administrators on May 20, 2011 at 10:15 AM in Legal Theory, Life of Law Schools | Permalink


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I guess, first we should be clear of wether Jurisprudence is philosophy of law, or it's philosophy of legal rules?

Law can be regarded as natural principles, such as Newton's law , Dawin's law of evolution and law of human rights. Law can also be regarded as legal rules,a category of social rules.

So, as a course for law school students, we have to define what this course is first. I believe that there should be a course named Basic Legal Theory,which includes what legal rules is, what is the relationship between legal rules and other rules(natural rules and social rulels), how legal rules are created, and how it is enforced. And elements of legal rules,prepresentations of legal responsiblity(Liability).

I hope, we should not talk more about philosophy of a specified discipline with students at the begining. For example, we should just teach basic theory of a specified discipline at the begining, instead of philosophy of phisics,philosophy of maths,philosophy of art,philosophy of literature,philosophy of history.

Posted by: lutong | May 27, 2011 9:40:03 PM

Great topic.
I agree that Jurisprudence or legal theory should be a required course for law professionals,but not for first-year law students.The required course for first-year law students should be"basic legal theory 'or "general legal theory",which should mainly introduce basically technical issues of positive law,and only a few about natural law.
I do hope that jurisprudence become a discipline of social science,not something like metaphysics.It should not seem like physics or maths,but it should learn a bit from the preciseness from natural science.I guess the biggest issue for jurisprudence is that different people use different conceptes in their research,though they use the same word.Just the same word,but not the same concept.And in their discussion,they violate the "law of identity" frequently and violates the definiting method of "genus et differentia".For example,I guess, as two basic concepts of jurisprudence,maybe "natural law" and "positive law" violates the "law of identity".The first "law"of "natural law" can only mean" principle "made by nature, or" rule "made by nature.So,according to the "law of identity",the second “law”must have the same meaning of principle or rule.If so,the concept of "positive law" just is man-made rules,which refers all kinds of social rules ,including religious rules,moral rules,and such a meaning can not make us aware of the contents of "rules guaranteed by final state's force"---legal rules.If someone insists "positive law" has the meaning of "rules guaranteed by final state's force",I wonder how does this meaning come into being?Such a meaning must not come from the word of "positive",and it must come from the second word of "law".So,the second "law" in "positive law"has more meaning than the first,thus that just violates the "law of identity",which requires same concept of "law" have the same meaning in same discussion.So,maybe the two phrase as concepts are disfigurement.

Posted by: Lutong | May 25, 2011 3:27:24 AM

At LSU all incoming students are required to take Legal Traditions their first semester. This course covers at some length the difference in jurisprudential philosophy and history underlying the Common Law and the Civil Law. Assigned readings include Hart, Aquinas, Austin, Aristotle, etc.

Posted by: LSU2l | May 24, 2011 9:15:45 AM

I'd vote for it to be included for the simple reason that the degree you get is a doctorate. It's always seemed weird to me in their undergraduate career, everybody takes philosophy and/or other courses of little day-to-day relevance to the work-a-day world. And yet, when they get into law school, many of them have an expectation that everything should be relentlessly oriented toward practice. Along the way to getting a graduate degree that admits you to a self-regulating profession that is largely responsible for our institutions of justice and their large and numerous flaws, I think, it makes sense to carve out a place for some considered reflection.

I also feel like students might be more receptive to "theory stuff" if they didn't feel it was forever competing with more practice-oriented knowledge found in doctrinal courses.

I agree with the above comments that there's a risk it turns into something useless in the hands of some instructors. Thus, there should be an expectation that it will include a set of canonical concepts agreed upon in advance. And, along the lines of some of what has been written above, I would put it in the fall semester of the 2L year. That's when I took Con Law, myself. I thought it was kind of sweet spot for forest-for-the-trees thinking.

Posted by: Eric E. Johnson | May 20, 2011 3:16:25 PM

As a teacher of jurisprudence for several years over several terms, I would wholeheartedly recommend it. I have been really impressed with students who have told me that their grades have improved and their understanding of some of the more complex issues in their other classes was improved. However, it has its dangers. It is a lot of material. I've had students who haven't done well simply because they haven't come from a political science or philosophy background and jumping right into Kant and Aquinas can overwhelm. I would recommend it though as part of the early second year curriculum.

Posted by: Jason Smith | May 20, 2011 3:01:23 PM

If anyone is teaching students that Putnam "deconstructed" the fact/value distinction, then they are guilty of educational and philosophical malpractice! Yet another reason not to *require* such courses!

Posted by: Brian | May 20, 2011 2:28:39 PM

I've taught our required upper level jurisprudence course here at Notre Damne for 30 plus years. Most students say they would not have taken the course if left to their druthers, but having taken it, they are glad for their experience. They now UNDERSTAND what it is that they are doing living a life in the law. In fact, I tell them that the only two more practical classes are law office management and remedies/excution, which are not generally taught or required. Moreover, in event, no student of mine would raise the is/ought distinction anyway; it has been thoroughly deconstructed by Putham (Collaspe of the Fact Value Dichotomy)

Posted by: G. Robert Blakey | May 20, 2011 1:04:01 PM

As Orin's example illustrates, a lot turns on what is meant by "jurisprudence." Requiring anyone to have to listen to Roberto Unger on Roberto Unger seems manifestly unjust, and pedagogically indefensible (if someone wants to do that voluntarily, that's of course fine). Chicago's "Elements" is a whirlwind tour of a variety of interdisciplinary approaches, some of which are jurisprudential in character, but most of which are not--it's a course that aims to give students a theoretical and conceptual vocabulary to utilize in their other classes. I'm skeptical that it should be required in the autumn quarter of the first year, but as we all know, habits die hard in law schools (vide: the persistence of the Socratic method). Personally, I would be opposed to a mandatory course in Jurisprudence, partly because of general skepticism about required courses (most of the standard 1L curriculum being the exception), and partly because part of the pleasure of teaching the subject is teaching it to students who are interested in the subject, not there at gunpoint.

Posted by: Brian | May 20, 2011 12:52:26 PM

Georgetown's curriculum B includes a jurisprudence course first semester of 1L year. It really shapes the way the students think and talk in all their other classes.

Posted by: Amy | May 20, 2011 12:49:41 PM

I'm willing to grant Orin that we shouldn't require a class whose appropriate title would be something along the lines of "Unger's Views on Law and Social Revolution." I would expect a week each on the following topics (which more or less follows the organization of the current edition of Lloyd's Introduction to Jurisprudence) would be a more standard approach: nature of jurisprudence; natural law; positivism; pure theory of law; modern analytical jurisprudence; interpretivism; realism; theories of adjudication.

Posted by: Patrick Luff | May 20, 2011 12:44:40 PM

Three reactions: 1) I'm a bit skeptical about the required courses we already have, and so I'm even more skeptical about adding to them. 2) Orin raises a good point, which is that there is (I think) a lot less consistency to the content of a jurisprudence/legal theory class than, say, Torts. So it could easily wind up being a bad and/or useless course at a particular school. 3) However, I think it is an underappreciated elective. I actually include a bit of philosophy of law in my Internet Law class, because students typically are not familiar with it, but it significantly adds to our debates about what the law is when the law was adopted before some change in technology.

Posted by: Bruce Boyden | May 20, 2011 12:10:00 PM

USC has a required first year course called "Law, Language, and Ethics" that usually has a substantial jurisprudence aspect.

Posted by: Doug | May 20, 2011 12:04:52 PM

Chicago's "Elements of the Law" course has quite a lot of the flavor of a jurisprudence course.

Posted by: TJ | May 20, 2011 11:44:48 AM

I took a Jurisprudence class in law school that was taught by Roberto Unger. The entire class was about Unger's argument that our conceptions of law were blocking social revolution, and that we needed a new conception to facilitate radical social change. For the exam, Unger had us write an essay in which we gave our personal reaction to his argument. All things being equal, I don't think I would have made that a required course.

Posted by: Orin Kerr | May 20, 2011 11:39:35 AM

The argument for jurisprudence sounds very similar to me to an argument that conflicts of law should be a required course. I took it as an elective, and it clarified so many of the procedural and substantive issues that confused me in civil procedure, torts, and contracts. Particularly the problems being addressed in the intricacies of the Erie doctrine cases.

Posted by: Tim S | May 20, 2011 11:28:19 AM

As kormal noted, jurisprudence is still required at Notre Dame. I taught it this spring, and decided to allow 1Ls to choose it as an elective.

I did so because I remember taking Jurisprudence my 2L year and thinking "So *that's* what my professors were trying to get at indirectly last year." 1L spring seems to be a decent spot between (1) having some knowledge of the law and methods of reasoning and (2) ameliorating some of the disorientation that accompanies the first year of legal education. The only potential drawback is that Spring 1Ls have not been substantially exposed to statutes, a problem if one wants to get into deeper discussion about interpretation.

The 1Ls performed as well if not better than the 2Ls and 3Ls on their finals, but that may also be a selection effect: a 1L who chooses jurisprudence as an elective may have the background or interest that aids performance.

As for practicality, it was sometimes hard to answer the "how will this help me" question, but I tried to explain how jurisprudence can systemize, or at least make explicit, the implicit and conflicting instincts operating in the background as we think about law. So it will make you a better lawyer.

Among the most rewarding comments I heard all year were from students who explained that the legal theory they learned helped make more sense of debates and doctrinal problems they confronted in classes like con law and fed courts.

Posted by: Jeff Pojanowski | May 20, 2011 11:11:45 AM

how about we require evidence first?

Posted by: really? | May 20, 2011 10:58:56 AM

Yes. It should be - but an upper-level course not a first-year course. I went to law school in Ireland - at UCD. There, jurisprudence is a required course that is taken in the final year. At that point, students already have a grasp of the core subjects and basic legal principles so can probably get more out of the course. Because courses at that time were taken for a whole year, it was not just legal theory and also incorporated some legal anthropology and classical legal history, which I found fascinating. I wrote my class paper on Hittite Law - not something I'd have been able to do in any other class!

Posted by: CSH | May 20, 2011 10:41:29 AM

"No U.S. law school I know of requires students to take classes in jurisprudence or legal theory . . ."

Notre Dame does; it's an upper-level requirement. I agree that it's a good thing, and more law schools should adopt it as a requirement.

Posted by: kormal | May 20, 2011 10:25:22 AM

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