The New Generation of Jurisprudence: Prof. Brian Leiter Writes a New ‘Philosophy of Law’ Entry for the Encyclopedia Britannica

Brian Leiter

When the Encyclopedia Britannica decided to update its entry on “Philosophy of Law” for the first time in a half century, they contacted Brian Leiter, a Law School professor who specializes in moral, political, and legal philosophy and is known for his extensive writings on the jurisprudence of American legal realism, as well as work on the German philosopher Friedrich Nietzsche.

Of course, it is no small task to distill an expansive topic that is at the center of one’s life’s work into a 10,000-word essay aimed at a general, though educated, audience. But Leiter, the Law School’s Karl N. Llewellyn Professor of Jurisprudence and the Director of the Center for Law, Philosophy, and Human Values, was happy to take it on. He immediately recruited a co-author—Michael Sevel, a former student who is now a lecturer in jurisprudence at the University of Sydney Law School in Australia—and the two set about making the philosophy of law accessible to intellectually curious non-experts.

“We wanted to be sure the essay gave someone new to the subject a suitable orientation to the main themes, questions, and writers,” said Leiter, who has also written more specialized entries on Nietzsche’s Moral and Political Philosophy and Naturalism in Legal Philosophy for the Stanford Encyclopedia of Philosophy. “The phrase ‘philosophy of law’ can be used very capaciously, but we decided early on not to do anything about the philosophy of particular areas of law. For instance, we didn’t include the philosophy of criminal law (What’s the justification for punishment?) or the philosophy of tort law (Is it about deterrence, or is it about corrective justice?) Instead, the questions are: What is law? What’s the difference between law and other systems of normative guidance in human societies, such as morality? Those are questions with a very long history.”

The new essay, which went live on August 12, traces the history of jurisprudence from the ancient Greeks through to the present day. It covers major theories, exploring the contributions of both ancient philosophers, such as Plato, Aristotle, and Cicero, and more modern thinkers, such as 17th-century English philosopher, scientist, and historian Thomas Hobbes; 19th-century English philosopher, economist, and theoretical jurist Jeremy Bentham; 20th-century English legal theorist H.L.A. Hart, and 20th-century Austrian-born jurist Hans Kelsen.

The essay replaced a Philosophy of Law entry written more than 50 years ago by Julius Stone, who was the Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and, like Leiter, a proponent of legal realism. But Stone’s entry was written at a time of tremendous change within the field of jurisprudence. A few years before, in 1961, Hart had released his seminal book, The Concept of Law, which advanced Hart’s theory of legal positivism.

“That’s the book that really brought about the transformation of jurisprudence into a centrally philosophical topic and a philosophical approach,” said Leiter, who gave the Julius Stone Address in Jurisprudence at the University of Sydney in 2013. “Stone was writing this entry in 1964 or ’65, and the transition was just beginning. His essay didn’t reflect the philosophical turn in jurisprudence.”

The new essay does. Leiter—who wrote much of the modern section while Sevel focused on the  history—devoted more than a dozen paragraphs to the theory, describing the 20th century as “very much the century of legal positivism.” He explored the theory’s development and impact, and also described the work of critics such as Ronald Dworkin.

“My hope, of course, is that essay serves its main purpose of being understandable even to those who are not experts,” Leiter said. “And we hope that it stands the test of time and ages well.”

Encyclopedia Britannica, which was founded in 1768 and has been available in a variety of digital forms since the 1980s, maintains a database of tens of thousands of entries, said Brian Duignan, a senior editor at Britannica. They publish revisions and updates to about 200 traditional encyclopedia articles per week, and also publish several hundred new entries every year—a faster pace than during their print-only days. Revision cycles vary, depending on editorial priorities and how enduring a particular topic is.

“Our philosophy of law article is the sort of sweeping, comprehensive entry that we tend to replace only once a generation,” Duignan said. “This was an exciting opportunity to work with Brian to craft an entry that we expect to stand, with periodic maintenance, for another 50 years.”

Leiter and Sevel’s essay is available for free to those who follow a direct link or access it via a search engine, such as Google.