ON THE HISTORY OF THE IDEA OF LAW

Vol. 16 No. 9 (September, 2006) pp.660-663

ON THE HISTORY OF THE IDEA OF LAW, by Shirley Robin Letwin. (Edited by Noel B. Reynolds.) Cambridge: Cambridge University Press, 2005. 362 pp. $80.00/£48.00. Hardcover. ISBN: 0521854237. ebook format. $64.00. ISBN: 0511138210.

Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu

More than thirteen years have passed since Shirley Robin Letwin died after an extended illness. Over that period, a great many students of history, philosophy, politics, and law, have come to appreciate her unique scholarly talents. Educated by F.A. Hayek at the University of Chicago, Letwin spent most of her professional career as an independent scholar pursuing answers to those philosophical and historical questions that most puzzled her. She enjoyed such an impressive career that a number of contemporaries insist that hers was a key voice in the “resurgence of conservative doctrine and thought in the second half of the twentieth century.” When she died, she left behind a rich legacy of curiosity, intellectualism, criticism, conservatism, and, above all else, wisdom.

She also left behind an unfinished manuscript. We are told that a good portion of the decade prior to her death was spent writing a lengthy volume on the vast subject of law. What intrigued her were “not the hundreds of lesser issues that occupy the pages of the legal philosophy journals . . . but the most general questions that have motivated philosophers in every age” (pp.vii-viii). Impressively edited by Brigham Young University scholar Noel B. Reynolds, that incomplete manuscript is now ON THE HISTORY OF THE IDEA OF LAW.

In the book, Letwin attempts to accomplish two parallel goals. First, as the title suggests, she traces the history of the idea of law, beginning with the conception sketched by the Ancients and concluding with a description of the subject defended by such twentieth century jurisprudential scholars as Ronald Dworkin and Michael Oakeshott. In between, Letwin describes the evolution of the idea of law through the writings of the major medieval, modern, and post-modern thinkers. She announces right away that her “object is to relate not what the law has been at any time or place, but how it has been understood and how that understanding has changed” (p.5).

Letwin’s second goal is a bit more subtle. She is, in the end, a critic of certain contemporary scholars of the law and so her less obvious objective is to derail the intellectual credibility of such legal philosophers as Jerome Frank, Roberto Unger, Catherine McKinnon, and Ronald Dworkin. Reynolds notes in his preface that “while the book explains and criticizes the legal theories of the most important philosophers from Plato to the present, it has at its primary target those theories of the twentieth century which in one way or another reject the [*661] classical understanding of law as illusory, and treat the idea of rule of law as a conservative mantra or a misnomer for rights” (p.viii). On the first aim of the book, the author succeeds admirably; on the second, the jury is still out.

The book is divided into six parts and sixteen chapters, all following a more or less chronological sequence. In Part I, Letwin describes the jurisprudence of the Ancients. The first chapter is devoted to a discussion of Plato, while the second focuses on Aristotle’s legal philosophy, and the third, Cicero’s. In each (and in all subsequent chapters), she sets out to describe the particulars of each philosopher’s legal theory while also attempting to show how the conception of law has changed through time. Originally, she indicates, an understanding of law was “anchored” to the “governing principles of the universe.” The relation of the “cosmic order” to human reason, for example, influences Plato’s jurisprudence. In her words, “the underlying thought common to . . . Plato’s view[] is that the idea of law is an answer to the fundamental difficulty of the human condition: how to bring some fixity into a world from which change and multiplicity cannot be eradicated” (p.19). This, Letwin contends, renders Plato’s conception of the law “highly ambiguous.” If reason is the governing principle that organizes a fixed universe, it can not also be the human characteristic that informs the law.

A related confusion plagues Aristotle’s view of law. Letwin claims that Aristotle does not resolve some of the inconsistencies evident in Plato’s description of law. In fact, she claims Aristotle “produced a sharper version of the tension between Plato’s two senses of justice” (p.41). And Cicero is no better. The author consistently refers to Cicero’s writings on the topic as “simplistic” and underdeveloped.

In Part II, Letwin turns to legal theorists of the Christian faith. The thread running through the work of St. Augustine and St. Thomas Aquinas, she says, is a commitment to the principles of peace and human perfectibility, and the existence of natural law as a constituting force. She is comparatively underwhelmed with the conception of law announced by Augustine. He, like Cicero, constructs a rather simplistic version, says Letwin. Aquinas, on the other hand, offers the most comprehensive and sophisticated understanding of law since Aristotle. She insists that Aquinas actually wrestled with the same internal tensions that paralyzed Aristotle’s and Plato’s conception of law. “The Thomistic account of law,” she writes, “is a powerful and explicit attempt to resolve the Aristotelian tension between law as the cement of society (something to be obeyed because it is law) and law as a moral absolute (something to be obeyed because it is an expression of eternal verities)” (p.86).

Beginning with the view of law defended by Hobbes in the seventeenth century, Letwin organizes Part III around what she describes as the “modern” conception. She insists that the transition from earlier definitions of law to the modern one represents an important historical moment in the entire [*662] debate. Hobbes and his descendants, she says, deliberately break with the Ancients by expanding the conception of law beyond the comparatively simple definitions of the past. Take Locke, for instance. He “identifies law for the first time with an instrument for serving a productive enterprise and achieving a given unitary end” (p.134). He gives law a utilitarian edge, in other words. Similarly, Jeremy Bentham’s “command theory” visualized law not as a reflection of the ordered universe, but as the expression of power. For Letwin, this marks a critical turning point in our understanding of law. In fact, she claims that Bentham’s association with the positivist theory of law (she says that he is often described as the “father of positivist jurisprudence”) severely undervalues his overall contribution to moving the conception of law in a new direction.

Part IV builds on a definition of law, first developed in the modern era, which rests on a firm commitment to stable, non-instrumental rules. Even here, Letwin is deeply skeptical. About H.L.A. Hart’s opinion that law’s validity is tied directly to the authority of the promulgator, and that following a legal rule may be obligatory even if one finds the principle at its core morally reprehensible, Letwin says “what is missing from Hart’s account is an account of why distinguishing law’s authority from its justice follows from recognizing why the rule of law is a desirable or just institution” (p.217).

All of this is a precursor to the real battle she intends to wage against several contemporary legal philosophers. The Marxist, Realist, Feminist, and Critical Legal Studies schools are the first to experience her pointed criticism. According to Letwin, these schools of thought share one glaring feature in common: they all “repudiate the idea of law;” they deny the existence of law as a body separate from the institutions that give it meaning and force. Still, despite the time Letwin devotes to condemning the major jurisprudential movements of the twentieth century, it is Ronald Dworkin who suffers her sharpest rebuke. In Letwin’s estimation, Dworkin’s conception of the law is really just a disguise for a particular political agenda that seeks to use law as an “instrument for redistributing resources so as to secure equality” (p.303). Dworkin confuses law and politics, says Letwin, and as a result creates a conception of law that subordinates individual liberty in favor of radical egalitarianism. Letwin accuses Dworkin of discounting the importance of fixed procedures in favor of “achieving certain results.” It is a wicked condemnation.

Fortunately for Letwin, Michael Oakeshott is there to save the modern idea of law. Letwin insists that Oakeshot discovers “a new kind of anchor for [the] system of legal rules” that was mostly renunciated under the modern jurisprudential paradigm. Describing Oakeshott’s legal philosophy as a “skeptical jurisprudence,” she argues that he fundamentally alters the way we think about law by offering “a radical redefinition of reason” (p.308). Oakeshott is unique because he has, at once, succeeded to break with the Ancient view that law is related to the [*663] order of the universe while also refusing to succumb to the modern notion that man is simply a slave to his passions. His jurisprudence lies somewhere in between. What he manages, according to Letwin, is an admirable conception of law that values individualism without relegating political governance to disorder or anarchy.

In general, the book is impressive. Letwin is at her best when explaining the historical progression of the idea of law. Her principal objective is achieved primarily because she is so careful to elucidate faithfully the jurisprudence of many diverse thinkers. That is not an easy task. The real strength of the book lies in the author’s ability to explain the many different threads that run through more than two millennia of philosophical debate. Her focus on questions related to the development of the idea of human reason, for example, nicely complements her broader agenda. For students of the history of law, the book is invaluable.

ON THE HISTORY OF THE IDEA OF LAW is far less valuable, however, as a discourse on the vices of twentieth century jurisprudence. It is not so much that Letwin misunderstands the legal positions of scholars such as Roberto Unger and (more critically) Ronald Dworkin. Rather, the major problem with the work is that her project remains, in a sense, incomplete. The secondary mission of the project—to take aim at the legal theories of the twentieth century “which in one way or another reject the classical understanding of law as illusory, and treat the idea of rule of law as a conservative mantra or a misnomer for rights”—is less successful precisely because it is now somewhat outdated. Even Reynolds acknowledges that the thoughts of the most recent theorists are still maturing, and that Letwin’s analysis represents merely a snapshot, a critique that, for obvious reasons, stops short of engaging the fully developed arguments of these thinkers. The entire analysis of Dworkin’s legal theory, for instance, considers only his writings prior to 1985—important work, to be sure, but not representative of his complete theory. And while it may be inappropriate to point out a flaw that the author had no ability to correct, the book still suffers from it. Once again, the profound effect of losing such a gifted intellect is exposed.

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