Blackstone's Tower: The English Law School - College of Social ...

The Quest For a Core
content, it follows that all such exposition is "impure". To put the
matter simply: Kelsen tells us what is presupposed by any purportedly
"objective" statement of what the law is, but he also
implies that the only pure legal knowledge is knowledge of formal
structure, not content. If "science" encompasses an activity as well
as a form of knowledge, then Kelsen's science can have no scientists—one
cannot do pure exposition. On this interpretation, Kelsen's
expository science self-destructs. Any actual expositor who
claims to be applying Kelsen's method and to be doing pure science
is misusing him. The architect of the Pure Theory is, on this
interpretation, the leading authority for the view that objective,
pure exposition is impossible.
I share the opinion that Holmes and Kelsen are among the most
important figures in our heritage of Jurisprudence. But neither provides
much practical help on the problems of legal scholarship as
an activity nor a satisfactory basis for the core of law as a discipline.
Realism opens Pandora's box and allows all disciplines to escape. 21
Cynical acid destroys the subject-matter; genuinely pure science
induces paralysis; other claims to scientific purity are spurious.
(b) Subordination
A second response to the problem of developing a coherent
theory of legal scholarship is a different kind of reductionism. Subordination
is substituted for autonomy. Before the Enlightenment,
Theology was Queen of the Sciences in the Western tradition. Law
was just one subordinate enterprise within Theology. This is exemplified
by the Thomist tradition of Natural Law and by other religious
conceptions of law, such as one or other school of Islamic
Law. What is rendered unto Caesar, how it is interpreted and what
is valid or obligatory are determined by a higher law.
Since the Enlightenment the pecking order has been the subject
of endless competition. Sociology, Social Darwinism, political economy,
various schools of psychology, ethics, general philosophy,
linguistics and more recently biology have all staked claims to leadership
or even hegemony: "Law is a form of applied ethics"; "Law,
as a social institution, is part of sociology"; "All law is politics";
"Law is superstructure, determined by its material base, and as
such is to be explained by political economy"; "Psychology, as
the science of human behaviour, is the key to law". The incantations
are almost endless, subject to some circular law of fashions.
Of the many attempts to treat law as a sub-branch of some other
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