Beiser, Edward N.

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Washington University Law Review Volume 1973 Issue 4 January 1973 Review of “Foundations of Jurisprudence,” By Jerome Hall Edward N. Beiser Brown University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Jurisprudence Commons Recommended Citation Edward N. Beiser, Review of “Foundations of Jurisprudence,” By Jerome Hall, 1973 WASH. U. L. Q. 956 (1973). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1973/iss4/13 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSFoUNDAToINs oF JURISPRUDENCE. By Jerome Hall.' Indianapolis:The Bobbs-Merrill Company, 1973. Pp. viii, 184. $9.50.Jerome Hall's eighth book brings to mind the graduate student whoreported that he had written a long dissertation because he didn'thave the time to write a short one. This brief volume contains exceed-ingly rich fare, reflecting as it does the author's long career as a leaderin the field of jurisprudence. Professor Hall has indeed taken thetime to write a short book; he speaks to important themes in a seriousand professional way. While one may ultimately disagree with Hall'sposition, there is no question but that it has 'been articulated by a sig-nificant scholar.Foundations of Jurisprudence is not a book for timid souls who seeka cursory introduction to jurisprudence. Hall plunges deeply into theintricacies of his subject matter. The book will probably be of greatestinterest to specialists in the field who are familiar with the authorswhose works Hall discusses and with the background of the issues heanalyzes. Nevertheless, it is certainly approriate for the generalreader who is willing to pay careful attention to the author's line ofargument.In a sense, reading Foundations of Jurisprudence is not unlike pick-ing up an extension telephone and listening in on the middle of a con-versation which has been going on for some time. One senses thatlanguage is being used in a special way. The participants in theconversation share certain assumptions and points of reference, and thelistener must attempt to place their remarks in the appropriate context.In part, this may result from the nature of the beast: jurisprudence,according to Hall, is the continuation of a conversation begun centuriesago by Plato in his dialogues. 2 Much of the book consists of Hall'sreactions to the leading participants in this process-Kant, Kelsen, Aus-tin, Hart, and Fuller, to name only a few. The author's substantial1. Professor of Law, University of California-Hastings College of Law; Distin-guished Service Professor Emeritus, Indiana University.2. J. HALL, FOUNDATIONS OF JUrmsPRUDENCE 5-11, 24-25 (1973).Washington University Open ScholarshipVol. 1973:956]reliance on footnoted references to his discussions in earlier works isan additional problem in this regard.What can one hope to gain by jumping in at the midst of this on-going conversation? One benefit is an appreciation of the kinds ofquestions which constitute the field of jurisprudence. The followingincomplete list indicates the range of Professor Hall's concerns:1. What is law? What is the difference between "law" and "a law?"2. What is the relationship between "law" and "values?"3. What is the nature of the debate between proponents of "naturallaw" and "legal positivism?"4. What is the relationship between "law" and "sanctions?" Aresanctions necessary to a theory of law?5. What is the relationship of the state's "laws" to other norms?6. What is the relationship of "formal law" (law on the books) to"law in action?"Hall's detailed discussion of these questions reveals their complexity.At a minimum, the reader of Foundations of Jurisprudence will comeaway with an awareness of the terrain of jurisprudence and, perhapsmore significantly, with heightened sensitivity to the subtleties and nu-ances of the enterprise.The feature of Hall's jurisprudence which is likely to strike mostreaders-particularly those trained in American law schools-espe-cially forcefully is his fundamental rejection of the positivist tradition.3Hall believes that a legal system must embody ethical standards. Theterm "law" as a symbol has honorific connotations, and Hall believesthat it should be utilized only in that sense: "[A] point is reachedwhere it must be recognized that an enactment falls outside the ac-cepted criteria and is, therefore, not bad law but not law."4  That is,enactments are not necessarily law, quite regardless of whether theyare complied with. It is the content of a statute which earns for itthe meritorious label, "law."Unfortunately, Hall does not put forth an adequate justification ofthis position, at least not one which I find convincing. In part, hisargument rests on his detailed criticisms of legal positivism. 5 His stanceis essentially that if he can demonstrate fallacies-in the positions of thevarious schools of positivism, he will have demonstrated the validity3. See id. at 21-53.4. Id. at 67 (emphasis original).5. See id. at 21-53.957BOOK REVIEWShttps://openscholarship.wustl.edu/law_lawreview/vol1973/iss4/13958 WASHINGTON UNIVERSITY LAW QUARTERLYof his alternative approach. I don't think this move works. Even if all ofHall's specific criticisms of positivism are granted-and it is far fromobvious that this should be the case-he has simply established the ne-cessity for some alternative approach, not his particular alternative withits natural law overtones. In addition, Hall frequently appears to fallback on an argument in the form, "Fifty million Frenchmen can't bewrong." Since significant philosophers, as well as the public over theages, have employed the term "law" in an honorific sense, surely wecannot dismiss this usage. At the least, usage over the ages entitlesa position to serious examination and consideration, but this hardlycompels us to accept the position.A basic weakness of Hall's honorific usage is that he never definesthe particular content which an enactment must have in order to qualifyas "law." What are the standards which define "law?" Where canthey be found? In short, Hall is close enough to a natural law doc-trine that he must meet the standard responses to it; I think he failsto do this.By way of illustration, consider Hall's -attempt to differentiate betweenlaw and other social norms. Since law (as he understands it) musthave "ethical validity," it can be differentiated from "conventional rulesthat have no actual normative significance, for example, that vacationsare to be taken in July."6 Unfortunately, Professor Hall never defines"normative significance," nor does he indicate the source of these ethi-cal norms. Consider a Sunday closing ordinance; does it have "norma-tive significance?" Presumably, a religious observer of the Sabbathwould say yes; a secularist might say no. Why aren't July vacations of"normative significance?" Hall's fundamental intuition that law musthave ethical content is devoid of meaning because he has not told uswhat "ethical content" means, or how we would recognize it.This fundamental problem in analysis also weakens Hall's presenta-tion of what he calls "integrative jurisprudence."17 A topic of currentinterest to social scientists to which Hall addresses himself is the effec-tiveness of law. Clearly, one must not confuse what the Supreme Courtdecided, for example, in Miranda v. Arizona8 with the realities of be-havior in local police stations. Hall has much to say that is of inter-est with regard to the question of effectiveness, and how it should be6. Id. at 137.7. See id. at 142-77.8. 384 U.S. 436 (1966), discussed in id. at 170-71.[Vol. 1973:956Washington University Open ScholarshipVol. 1973:956]conceptualized. But he feels obligated to employ "effectiveness" in anormative sense. If "law" implies ethical standards, so too must "effec-five" law. Hall asserts that "it is extremely difficult, if not impossible,to treat 'effectiveness' in purely descriptive terms because the valuesthat make a social theory significant intrude to qualify the factual state-ments. . . . If, therefore, in the context of dealing with socio-legalproblems, 'effectiveness' has normative as well as descriptive connota-tions, a law is effective if it maximizes values."9Unfortunately, Professor Hall never defines "values." He rejects asinappropriate both the use of "effective' in the context of "a sharpknife that is used to cut someone's throat," and a discussion of theeffectiveness of "statutes that kept blacks out of washrooms."' 10 ButHall doesn't tell us how we know that this segregation enactment-which clearly supports something which one might reasonably call a"value"-doesn't qualify for honorific usage.I would suggest that Hall's commitment to a normative jurisprudencehas led him to ask the wrong questions. His discussion of "effective-ness," for example, poses the following question: Has this enactmentin fact produced results which are in accord with appropriate values?But until we have a clear definition of the appropriate value standard,this question is meaningless. I personally find no difficulty with analternative question: Given a particular enactment, what social inter-ests have benefited and what social interests have suffered as the resultof its enforcement?Professor Hall explicitly wished to consider much more than "lawon the books;" hence, his discussion of "the dynamics of law-as-ac-tion."1' Yet, his analysis is rigid and limited, precisely because he em-ploys conventional formal-legal categories as if they were behaviorallysignificant. For example, he distinguishes between the state (and itsrules) and other associations (and their rules) by fiat: "The State,by contrast, is a unique association; resignation is not possible, it doesnot occur, and would be rejected out of hand as simply irrelevant."' 2It may be that there are some senses in which nation-states are signifi-candy different from other social organizations. Clearly, there aremany similarities between what we call nation-states and "private" or-ganizations. My basic objection is the way in which Hall deals with9. J. HALL, FOUNDATIONS OF JURISPRUDENCE 171 (1973).10. Id.11. Id. at 161-68.12. Id. at 139.959BOOK REVIEWShttps://openscholarship.wustl.edu/law_lawreview/vol1973/iss4/13960 WASHINGTON UNIVERSITY LAW QUARTERLYthis matter. Just as he utilized the notion of "ethical values" withoutcareful definition, so too does he employ the concept of "the state"and, indeed, the concept "legal" without precise definition. Whetherthe state is a "unique" social institution is an empirical question whichcan be tested in the real world. Hall postulates its uniqueness, employ-ing "state" as a category, one assumes, because it has been so employedin our legal tradition. But the comfortable ring of familiar terms isnot a satisfactory basis for scholarship.Consider Hall's statement that "rules of law. . provide the distinc-tive features of certain actions that otherwise dissolve in an amorphousocean of behavior; they supply the structures that the mind grasps togive distinctive meaning to legal experience.' 1 3 Precisely because Hallbegins with the premise that law is honorific, that it is worthy of sup-port at least in part because of its content, he must distinguish it fromless elevated aspects of human behavior. Query, whether this orientationincreases or limits our understanding of phenomena which a particularsociety happens to call "legal."' 4  It may be that something called"rules of law" has the effect of distinguishing forms of behavior in theminds of the members of some societies. But maybe not. What Hallasserts by definition-as he must, given his attachment to the beliefthat "law" is special-I would pose as an hypothesis to be tested. Ifit were demonstrated that types of behavior which have traditionallybeen branded "legal" were in fact not differentiated from "the amor-phous ocean" of other human behavior, I would certainly not be of-fended. And I might learn a great deal.Which leads us once again to the basic questions: Is there a formof behavior called "legal behavior" which is significantly different fromother forms of behavior; and, is there a phenomenon called "the law"which is sufficiently different from other political and social institutionsthat it and legal behavior must be studied and understood in specialways? An affirmative answer to both of these questions is central toProfessor Hall's book. His argument would rest on a much firmerfoundation had he explicitly defended these basic assumptions, ratherthan postulating them as givens.EDWARD N. BEISER*13. Id. at 161.14. This would, of course, be heresy in Hall's view.* Associate Professor of Political Science, Brown University.[Vol. 1973:956Washington University Open Scholarship

Review of “Foundations of Jurisprudence,” By Jerome Hall

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Review of “Foundations of Jurisprudence,” By Jerome Hall

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