Two Models of General Jurisprudence
Transnational Legal Theory, Vol. 4, No. 3, 2013
11 Pages Posted: 18 Jul 2013
Date Written: July 18, 2013
The essay is a comment on William Twining’s recent book Globalisation and Legal Scholarship (2011), to be published as part of a symposium issue on the book. The aim of my comment is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining’s model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart’s version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining’s version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining’s descriptive approach is subtly tied to various prescriptive recommendations he makes in his book, which I believe are unattractive.
Keywords: general jurisprudence, William Twining, Jeremy Bentham, H.L.A. Hart, legal pluralism
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