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  • The Province of Jurisprudence Democratized
  • Rueban Balasubramaniam
Allan Hutchinson The Province of Jurisprudence Democratized. Oxford: Oxford University Press, 2008, 240 p.

In The Province of Jurisprudence Democratized, Allan Hutchinson criticizes the analytic approach in legal philosophy, which conceives of jurisprudential inquiry as acontextual, ahistorical, and amoral. The analytic approach aspires to describe abstract truths about the very idea of law; Hutchinson argues, however, that this approach is normative and results in a conception of legal authority that privileges the perspective of legal officials over the perspectives of the citizenry, which makes the approach inherently undemocratic. He traces this problem to John Austin’s jurisprudential project to provide a [End Page 112] definition of the concept of law. Austin understands law to consist in the habitual obedience of legal subjects to the commands of a legally unlimited commander or sovereign, and thus in a vertical power relationship privileging the perspective of legal officials over the citizenry. In the first six chapters of his book, Hutchinson argues that the top-down image of law manifests in the views of the two most prominent legal philosophers of the twentieth century, H.L.A. Hart and Ronald Dworkin, and in the work of those who desire a more democratic jurisprudence.

Hutchinson’s proposed jurisprudential alternative to this analytic approach is based on the notion of “strong democracy” (p. 7). This agenda is unabashedly political, contextual, and pragmatic and seeks to answer real-world problems rather than to deliver abstract conceptual truths. Importantly, the democratic approach takes the citizen’s perspective seriously by taking political disagreement seriously. It does so by dismissing the idea of objective truth in morality and politics, beyond the truth of what works to resolve particular problems (p. 17), and by clarifying that no aspect of the political order is immune from democratic deliberation and change, so that officials cannot claim the authority to protect such features from democratic challenge. Importantly, Hutchinson limits his approach to “ostensibly democratic political cultures” (p. 141), cultures in which citizens are jointly committed to a set of values oriented around the willingness to engage in political debate as political equals in pursuit of justice and fairness (pp. 80–84). And because there is no truth about what justice and fairness require, citizens must be willing to defer to democratic political processes expressing a joint commitment to a shared “democratic ethos” (p. 187).

The trouble with Hutchinson’s argument is that it presupposes a political ontology, an image of political order, predicated upon the notion of social solidarity. Indeed, he variously invokes ideas such as “democratic community” and “the people.” This image of society does not fit with the reality of deep political disagreement, because social solidarity requires that citizens internalize a shared set of values or a shared ethos, a dynamic that further requires an authority to determine the content of these values and to enforce them in the face of deep political disagreement. But this necessitates an emphasis on the perspective of officials as the right perspective from which to think about legal authority over that of the citizenry, who are always potential threats to the democratic ethos—thus pushing us back to the top-down image of law. The grip of this image can be seen in Hutchinson’s claim that the distinction between an ostensibly democratic culture and a nondemocratic culture is that in the latter rulers are “bad” or “incompetent” (p. 141). The focus on officials is odd, given that Hutchinson wants to build a jurisprudential agenda that emphasizes the perspective of the citizenry. And that oddity is made starker by the fact that citizens in so-called nondemocratic cultures often understand culture in a way that spotlights the importance of cherished values of political morality, the same values one [End Page 113] finds in so-called democratic states.1 That Hutchinson treats the official perspective as the principal marker for distinguishing between political cultures suggests that he has not managed to break free from the top-down image of law that blights the analytic approach.

Hutchinson runs into this problem because he does not address the true source of the vertical image of law in Thomas Hobbes’s...

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