De Iurisprudentia

Neil Maccormick (Edinburgh)

The Trinity Term of 1964 in Oxford was one of pleasant weather, so much so that it could reasonably have been called a “spring”, or even a “summer” term, matching its eight weeks duration from late April to late June.

On first reporting for duty at Alan’s rooms in Oriel, I was quite surprised to discover how remarkably youthful he was in appearance, but glad to find him formidable only in his scholarship and in his unspoken expectation of a similar level of energy and commitment in his pupils. This was an energy and commit­ment to scholarship that was not deemed in any way incompatible with devo­tion to high jinks of the various kinds available to the moderately studious youth of early-1960s Oxford. Being then considerably involved in the activities of the Oxford Union, I found the situation an exhilarating one. Like most of his pupils, I speedily became extremely fond of Alan, and laid the foundation of what became, especially through our later period as close colleagues in the University of Edinburgh from 1972 until 1979, a deep and valued friendship.

One consequence of that colleagueship and friendship was the invitation extended by Alan to me to act as translator of Book I of the Digest.

However that may be, my task in the earlier sections brought me into con­frontation with an issue to which my own predecessor and Edinburgh colleague Archie Campbell had at one point given some attention, the meaning of the term “jurisprudence”. ^[159] In my case, however, the question concerned the correct translation of the word iurisprudentia. The crux was presented by one of the best-known sentences in the Corpus Iuris, both in Institutes 1.1.1 and in Digest 1.1.10.2: “Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia”. To translate this in a literal way is to say something pretty unconvincing, almost lacking in sense, if we use any of the senses of the term “jurisprudence” noted as current by Campbell. Here is an example of such a literal rendering: “Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust”.^[160]

In 1980, when I was getting on with my translator’s work, I happened also to have had my interest in the Roman uses of Aristotelian philosophy re-awakened by a reading of John Finnis’s then new Natural Law and Natural Rights.^[161] In it, Finnis draws attention to the fact that prudentia is the normal Latin translation of the Greek phronesis, perhaps best rendered in English as “practical wisdom”.

Then it seemed, and now it still seems, obvious to me that whatever the Romans of the classical period of Roman law meant by iuris prudentia, the sec­ond word of the compound term must be primarily redolent of the Aristotelian phronesis. So we are not talking just about a scholarly or learned virtue or activ­ity, such as we nowadays mainly take jurisprudence to be. We are looking at practical wisdom, that is, at wisdom, reasoning and intelligence directed to answering the questions: “How to live?” “What to do?” But we are not looking at it in its largest or unrestricted sense. We are focusing on practical wisdom as directed to ius, in short iuris-prudentia. A second difficulty appears. “Law” is at best an imperfect rendering of ius, for there is as much of lex as of ius in “law”. Recht, droit, diritto work better as translations, precisely in being ambiguous between the English “right” in various of its senses and the English “law”.

On that account, the translation that I offered, and that was accepted, for D. 1.1.10.1 was the following: “Practical wisdom in matters of right is an aware­ness of God’s and men’s affairs, knowledge of justice and injustice”. That was on the right lines, and preferable to the later suggestion of Birks and McLeod:^[162] “Learning in the law entails knowledge of god and man, and mastery of the dif­ference between justice and injustice”, for this version ignores the practical ele­ment of prudentia, treating it in purely cognitive terms.

It is a useful point, though, to reflect on the implications of this view about iurisprudentia, and thus about those who cultivate this virtue, this special branch of phronesis, the iurisprudentes. The claim is indeed being made that law as a life’s study is more than a science, it belongs as much to praxis as to techne. In particular, we might want to suggest, learning in law that rested con­tent with a listing or recitation or even full grasp of legal rules and principles stated in the abstract would not amount to iurisprudentia. It is these rules, prin­ciples and implicit values brought into the concrete setting, weighed and bal­anced and finally applied to yield an answer to a concrete question of right, that amounts (when it is well done) to iurisprudentia fully and properly understood. A contemporary author has given new body to essentially this idea, approach­ing it from a quite different direction. Klaus Gunther in his Sense of Appropriateness has argued that we must differentiate a “discourse of justifica­tion” concerning norms of conduct from a “discourse of application”.^[163] It is one thing to work out and justify a set of abstract principles of conduct through the kinds of procedures suggested by Jurgen Habermas. But these are not self­applying, and the discourse that justifies them does not of itself take us through to applying them well and wisely. What needs to be added is that the proper virtue cultivated in developing a “discourse of application” will be iurispruden­tia.

Alan Watson is not only an outstanding jurist. I salute him also as a wise and kind iurisprudens.