The Style of Classical Jurisprudence

The Style of Classical Jurisprudence, by Huang Tao, an associate professor from the Department of Philosophy at Sun Yat-sen University, not only addresses classical thinkers such as Hobbes, Montesquieu, Rousseau, and Clausewitz, but also modern jurists such as Kelson, Hart, and Fuller. Topics discussed encompass classic legal propositions such as rights, justice, natural law, and rule of law, as well as issues beyond legal theory, such as virtue and total warfare. At first glance, it might seem like a “hodgepodge,” but a careful reading of the book reveals a clear underlying thread: “classical appeals” and “rights.” This underscores the ever-present issue of how classical ideas should be integrated into jurisprudence.

The author argues that “classical” or “classical jurisprudence” is not a “temporal” concept, but rather an “attributive” concept. His advocacy for classical jurisprudence stems from his critique of certain modern jurists, such as Kelsen, Hart, and Fuller, who he believes have led legal theory away from its classical character. While this critique may be somewhat harsh, it holds a degree of validity in the current context of Chinese jurisprudence. Thus, Huang’s criticism of these jurists does not target their theories per se; rather, he aims to highlight that Chinese jurisprudence should not be modeled after modern thinkers but should return to classical roots. This return involves two aspects: first, viewing jurisprudence within a broader perspective; and second, addressing some more fundamental issues, the most fundamental of which is the moral foundation of law.

Jurisprudence is never a wholly autonomous discipline, and law itself is not a self-sustaining domain. Law and jurisprudence are grounded in other academic fields, assuming that law’s essence can be understood without such support risks distorting our understanding. These foundations, if distilled into general forms, might be analogous to moral philosophy and social sciences.

From this perspective, the author advocates for a return to a “grander” viewpoint—a return to the foundational political and legal experiences that helped construct the edifice of modern jurisprudence in the early modern period, regardless of whether these experiences come from philosophers, jurists, historians, sociologists, or writers. In the context of Chinese jurisprudence, the priority should not be to adopt contemporary legal theory, which has become highly specialized and technical, but to embrace the classical approach that seeks to understand law and its objectives within a grander domain. In this sense, the classical appeal carries a certain subversive mission: to overcome the “narrowness” of vision, whether this narrowness arises from the belief that “more refined and clearer knowledge is superior,” or from overconfidence in the autonomy of law itself.

Wu Yan is an associate professor from the Law School at Tongji University.