Legal jurisprudence: foundational concepts and theories

¶ … Computers by Z. Bankowski and the Ethics of Legalism by D.N. MacCormick present interesting theories of jurisprudence as to how the rule of law can govern without being influenced by human emotions that are attached to specific situations. In other words, the issue is that legal rules cannot be expected to govern all situations equally because each situation is unique. The two theories compared in this paper attempt to understand the jurisprudence that exists when, in reality, there is no rule of law.

According to Zenon Bankowski, a Professor of Legal Theory at the University of Edinburgh, an inherent conflict exists between the generality of legal rules and the particularity of a specific situation. Bankowski argues that, by nature, legal rules cannot govern a particular situation automatically and instead governs through humans' use of them. Instead of being viewed as an impersonal computer, Bankowski states that, because humans are the ones who apply the law, it is more correct to view the law as being governed by what he terms "love."

By love, Bankowski means the personal and emotional attachments that a decision maker will have with every particular legal situation. Thus, according to Bankowski, real judicial adjudication swings between the generality of the law and the correctness of love. As he states, "In applying the law, we need, through our explosions of love, to get to the particular and be able to see the things behind the rule." According to Bankowski, the answer to this conflict between the universality maintained by law and the particularity maintained by love is the common law tradition, which he sees as finding "the middle way between creative autonomy of love and machine."

MacCormick expresses a similar argument, although in different terms. According to MacCormick, the law has no natural existence, no set form and no fixed ontology. In fact, according to this line of reasoning, "the law has no natural role because the law is not a brute fact."

Instead, the law is what MacCormick calls a "thought object," similar to the concept of Love presented in the other article. According to MacCormick's thought object, the law only exists because humans believe in it. In other words, the law does not pre-exist our observation but is instead is constituted in that original decision to designate a specific law. As MacCormick states, "Law is constituted as an object of observation by the very act of observation itself."