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15 Oakeshott on Law Steven Gerencser To write about law in relationship to Michael Oakeshott’s ideas generally, or his thoughts on politics in particular, presents a complicated task, not because law is an obscure concept in Oakeshott and not because it is a topic about which he has written little. In fact, Oakeshott wrote about law and jurisprudence at the beginning of his life as a publishing scholar and was still writing essays on law more than half a century later. Rather, it is a challenge to write about Oakeshott and law because his ideas about law are so closely nested with related and interlocking concepts that it is very easy to start by thinking about law and find oneself considering authority or politics or his distinction between civil association and enterprise association. These concepts are woven together so tightly for Oakeshott that to pull one out and consider it on its own without attention to the others would badly misconstrue the idea. To express this idea in the terms that Oakeshott employs regarding Hegel and Hobbes, these ideas are related as in a system, and to attempt to understand any element of the system in isolation can generate only a limited and incomplete view, that is, a misunderstanding. Yet this view of Oakeshott can itself lead to a misunderstanding, a mistaken belief that all he wrote about law over his life of analysis and commentary perfectly coheres. Instead, his thinking about law, as his thinking about politics, philosophy, and much else, changes over time, as we would expect from any complex and interesting thinker. His earliest published writing on law and jurisprudence comes before World War II, a period marked by the publication of Oakeshott’s first book, Experience and Its Modes, and like much of his writing of that time, “The Concept of a Philosophical Jurisprudence” bears the stamp of British idealism. In that work Oakeshott is less concerned with law itself than with what it would take to develop a philosophical explanation of law; he states there that he is not interested in the usage of “‘jurisprudence’ Franco.indb 312 8/2/12 8:44 AM oakeshott on law   313 that refers to ‘case-­ law’ or ‘judge-­ made law,’ or the practice of a court” (CPJ, 154). Instead, he reviews various schools of the philosophical explanation of law and, much as he did regarding history or science in Experience and Its Modes, finds them wanting. These all fail to achieve a true philosophical jurisprudence , because they cannot attain what a philosophical explanation must. Oakeshott states, “a philosophical explanation is one which, in principle, is the relation of its subject to what I have called the totality of experience” (175). What Oakeshott himself has to offer as a philosophical jurisprudence at this time is less clear, as he is more involved with the critical review of the claims of others and theorizing what a true philosophical explanation must be like than with offering a theoretical explanation of law. He even suggests, “it is unnecessary for me to apply in detail my view of the nature of philosophy to the study of the nature of law; I have given the principle and the reader, if he cares, can easily apply it himself” (CPJ, 175). Oakeshott’s early attention to law then is less about law than the nature of philosophical explanation and, like his writing on history or politics, in the period after the war, he would leave behind much of the attention to philosophical explanation according to the strictures of idealism and focus more on the actual consideration of law, history, and politics, among other matters. Of course, differing judgments about how much and how significantly Oakeshott does change his views on various topics are a source of ongoing debates among various scholars who have interpreted his work. Yet it is not my intention here to rehearse those debates; rather, it is to suggest that discussing Oakeshott on law means encountering a dilemma that reflects one feature of those debates. Put simply and directly, two emphases can be found in Oakeshott’s writing about government and politics, and seeing how these are reflected in his ideas about law reveals some conflicts between those emphases. On the one hand, there is an Oakeshott, famous to many, who highlights the significance of practical knowledge over technical knowledge, who focuses attention on the traditional elements of a community, and who is suspicious of attempts to create de novo clear, simple...


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