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on philosophy in american law

In recent years, there has been tremendous growth of interest in the connections
between law and philosophy, but the diversity of approaches that claim to be working
at the intersection of these disciplines might suggest that this area of inquiry is so
fractured as to be incoherent. This volume gathers leading scholars to provide focused
and straightforward articulations of the role that philosophy might play at this juncture
of the history of American legal thought.
The volume marks the seventy-¬fth anniversary of Karl Llewellyn™s essay “On Phi-
losophy in American Law” in which he rehearsed the broad development of American
jurisprudence, diagnosed its contemporary failings, and then charted a productive path
opened by the variegated scholarship that claimed to initiate a realistic approach to
law and legal theory. The essays are written in the spirit of Llewellyn™s article: they are
succinct and direct arguments about the potential for bringing law and philosophy
together.

Francis J. Mootz III is the author of Rhetorical Knowledge in Legal Practice and Critical
Legal Theory (2006) and Law, Rhetoric and Hermeneutics (to be published in 2010).
He is editor of Gadamer and Law (2007) and Nietzsche and Law (2008, with Peter
Goodrich). He is also the author of a law casebook, Commercial Transactions: Sales,
Leases, and Computer Information (2nd ed., 2008, with David Frisch and Peter Alces).
He has published numerous articles in a variety of journals, including law reviews and
peer-reviewed journals. Professor Mootz is a regular presenter at academic symposia
focusing on issues of legal theory. He is a member of the editorial advisory board
of the interdisciplinary journals Law, Culture and the Humanities, and International
Journal for the Semiotics of Law and is a member of the Organizing Committee of
the Association for the Study of Law, Culture and the Humanities. He is an active
member of the Association of American Law Schools, the North American Society for
Philosophical Hermeneutics, the Law and Society Association, the Society for Ricoeur
Studies, and the Rhetoric Society of America.
He currently is the William S. Boyd Professor of Law at the University of Nevada,
Las Vegas. Prior to accepting this appointment, he was the Samuel Weiss Distinguished
Faculty Scholar and Professor of Law at the Dickinson School of Law of the Pennsylvania
State University.
On Philosophy in American Law
Edited by
Francis J. Mootz III
William S. Boyd School of Law
University of Nevada, Las Vegas
CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York

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© Cambridge University Press 2009


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accurate or appropriate.
Contents




Introduction page ix
Francis J. Mootz III

part i. karl llewellyn and the course of philosophy
in american law
1 On Philosophy in American Law (1934) 3
K. N. Llewellyn
2 Law in Life, Life in Law: Llewellyn™s Legal Realism Revisited 11
Jan M. Broekman
3 On Realism™s Own “Hangover” of Natural Law Philosophy:
Llewellyn Avec Dooyeweerd 19
David S. Caudill
4 On the Instrumental View of Law in American Legal Culture 27
Brian Z. Tamanaha
5 When Things Went Terribly, Terribly Wrong 35
Steven L. Winter
6 The Mechanics of Perfection: Philosophy, Theology, and
the Foundations of American Law 44
Larry Cat´ Backer
a

part ii. philosophical perspectives on law
7 Toward Normative Jurisprudence 55
Robin West
8 Critical Legal Theory Today 64
Jack M. Balkin
9 Reviving the Subject of Law 73
Penelope Pether



|v|
vi Contents

10 Law and Creativity 81
George H. Taylor
11 The Stories of American Law 88
Robert L. Hayman Jr. and Nancy Levit

part iii. areas of philosophy and their
relationship to law
12 On Philosophy in American Law: Analytical Legal Philosophy 99
Brian H. Bix
13 Political Philosophy and Prosecutorial Power 106
Austin Sarat and Connor Clarke
14 On (Moral) Philosophy and American Legal Scholarship 114
Matthew D. Adler
15 The Aretaic Turn in American Philosophy of Law 122
Lawrence B. Solum
16 On Continental Philosophy in American Jurisprudence 130
Adam Thurschwell
17 Psychoanalysis as the Jurisprudence of Freedom 139
Jeanne L. Schroeder and David Gray Carlson

part iv. philosophical examinations of legal issues
18 Law as Premise 151
Frank I. Michelman
19 Doing Justice to Justice: Paul Ricoeur 159
David H. Fisher
20 Love Is All You Need: Freedom of Thought versus Freedom of Action 167
Eugene Garver
21 Legal Philosophy over the Next Century (While We Wait for the
Personal Rocket Transportation We Were Promised) 176
R. George Wright
22 Atmospherics: Abortion Law and Philosophy 184
Anita L. Allen

part v. law, rhetoric, and practice theory
23. Foundationalism and Ground Truth in American Legal
Philosophy: Classical Rhetoric, Realism, and Pragmatism 195
Eileen A. Scallen
24 The Irrelevance of Contemporary Academic Philosophy for Law:
Recovering the Rhetorical Tradition 205
Francis J. Mootz III
Contents vii

25 Dicta 215
Peter Goodrich
26 Recent and Future Concepts of Law: From Conceptual Analysis
to a Practice Theory of Law 223
Dennis Patterson
27 The Tasks of a Philosophy of Law 232
Robert P. Burns

part vi. questioning the relationship between
philosophy and american law
28 Law and Philosophy at Odds 241
Larry Alexander and Emily Sherwin
29 Jurisprudence: Beyond Extinction? 249
Steven D. Smith
30 Law and Philosophy in the Hyperreal 257
Pierre Schlag
31 Philosophy? In American Law? 265
Philippe Nonet

part vii. commentaries
32 Optimism and Pessimism in American Legal Philosophy 273
Carlos A. Ball
33 This Jurisprudential Moment 279
Marianne Constable
34 Fresh Looks, Philosophy-in-Action, and American Law 285
Michael Sullivan

Contributors and Selected Bibliography 295
Name Index 305
Introduction
francis j. mootz iii




The purpose of a book is never entirely justi¬ed. In any event, no one is required
to display his motives or to entangle himself in a confession. To attempt it would
be self-delusion. Yet, more than anyone, the philosopher cannot refuse to give his
reasons.
(Ricoeur 1970: 3)

This project has a distinct provenance, and so it might be instructive for the reader
to know this history before engaging with the lively and diverse essays in this
volume. On the other hand, it is always the case that a project outstrips its humble
beginnings and takes on a life of its own; this is particularly true when the project
involves thirty-seven individuals. I recognize that my effort to tell the story of an
undertaking such as this book is, in the end, fanciful. Nevertheless, I must give my
reasons.
I have long admired Karl Llewellyn™s irreverent and sweeping prose. Llewellyn
cast aside received wisdom about the nature of law in favor of looking at what
really goes on in the activities that constitute law. In many ways he was similar to
Nietzsche in form and attitude: incisive in his analysis, unique (sometimes odd)
in his delivery,1 committed to clearheaded investigation but rejecting scientism,
tortured in his personal life, and maddeningly frustrating both to those who
would erect a logical system of thought around his legacy and to those who
would deride his efforts as an intellectual blind alley.2 Llewellyn was committed to
1
One of Llewellyn™s reviewers made this point in a pithy manner while still extolling the value of
Llewellyn™s work, commenting that there “are many Gothic structures worth half a trip around the
world “ and this book is one of them” (Levy 1961: 1051).
2
William Twining describes Llewellyn in a manner that could easily be applied to Nietzsche. Llewellyn,
Twining (1985: 113“14) explained,
imprinted his personality on everything he did, and even if it were desirable, it would be vir-
tually impossible to exclude the strong ¬‚avour of the Llewellynesque from any study of his
work. Few people could be indifferent to Karl Llewellyn. He frequently stimulated admira-
tion and enthusiasm, but there were also non-enthusiasts. There is some consistency in the
respective reactions of those who were de¬nitive Karlo-phobes or Karlo-philes. The former
tended to consider him a vulgar exhibitionist, sometimes brash and insensitive, sometimes


Dennis Patterson offered very helpful comments on an incomplete draft of this Introduction.

| ix |
x Introduction

reforming American commercial legal practice as a Nietzschean “great lawgiver”
who disdained the effete practice of academic philosophy, but he was enmeshed in
the most vital discussions of his day regarding the philosophical problems posed by
law. Llewellyn helped to pioneer modern legal anthropology in his work with the
Cheyenne, he wrote a book in German that adopted a comparative law focus, and
he was a central ¬gure in the creation and adoption by the states of the Uniform
Commercial Code. Simply put, he was deeply engaged in the real world of law but
also was always informed by a critical assessment of what paraded as knowledge
in this real world. Musty academics hiding in their book-lined of¬ces have no easy
task if they wish to dismiss the larger-than-life Llewellyn and his legacy.
Llewellyn™s essay, “On Philosophy in American Law,” is particularly interesting
because it uses his customary succinct and clipped prose to explore far-reaching
themes. In a period of great jurisprudential ferment Llewellyn produced a sugges-
tive and wide-ranging essay in an impossibly concise format. This short piece is
worthy of emulation because Llewellyn captured the moment in jurisprudential
thinking in an arresting manner and also outlined a path of productive develop-
ment. The origin of the present book can be traced directly to my embarrassing
epiphany while reviewing Llewellyn™s essay to check a quotation for use as an
epigraph for a forthcoming book. Simply put, as I ¬nalized my own lengthy
monograph I doubted that I could match Llewellyn™s example of speaking about
the jurisprudential moment so abruptly and provocatively. A simple idea followed
quickly on the heels of my prepublication self-doubt: wouldn™t it be fascinating to
charge a diverse group of scholars to present their own summations of the current
status of jurisprudential thinking in Llewellyn™s manner?
I am grati¬ed that so many talented individuals have taken this task to heart
in response to my call and have contributed such excellent essays to this volume.
In doing so, they have inspired me to try to meet the same challenge. It must
be emphasized that the subject of this book is neither Llewellyn nor his essay.
The book addresses the connections between philosophy and law at this point in
American legal history; Llewellyn serves as inspiration in form only. The diversity
of approaches that claim to be working at the intersection of philosophy and law


perverse, lacking in self-discipline and too erratic to be taken seriously. His admirers tended to
emphasize his combination of humanity and brilliance: warm-hearted, gay, tolerant, uninhibited
and vital as a person, stimulating and inspiring as a teacher, perspicacious and wise as a thinker.
Taken together such judgments suggest a volatile genius. There is truth in this image, but on its
own it is too facile.
There is a strange aura about Llewellyn™s writings which is unique in juristic literature. It
fascinates some readers, repels others and perplexes most. This strangeness is often attributed to
his prose style, which at its best is picturesque and memorable, but is often mannered, irritating
and obscure. His use of language is idiosyncratic but it is quite clear that by itself Llewellynese
does not explain the Llewellynesque. It is beyond my competence to try to emulate the brave
biographer who seeks to give a rounded account of the relationship between the personality and
the ideas of his subject. The pitfalls are too many and this study is, in any event, not intended
to be in any sense a ˜complete™ biography. However, there are two aspects of Llewellyn™s private
life which have a direct bearing on his work as a jurist: his supposed ˜artistic™ qualities and his
personal credo.
Twining did not intrude on the truly private dimensions of Llewellyn™s life, but there are reports
of his troubled relationships, depression, and alcoholism that suggest that he lived a life not wholly
unlike Nietzsche™s (Connolly 1998).
Introduction xi

might suggest that this area of inquiry is so fractured as to be incoherent, and
so it seemed helpful to invite a broad range of scholars to provide focused and
straightforward articulations of the role that philosophy might play in American
legal thinking. Each contributor was limited strictly to no more than 4,500 words
and footnotes were discouraged. As a result, the book brings together succinct
articulations of diverse assessments of the intersection of law and philosophy in
a manner that makes the whole greater than the sum of its impressive parts. By
asking leading scholars to deliver concise accounts of the relationship of law and
philosophy and to offer their suggestions for future productive work, the book
should focus and stimulate ongoing work in the ¬eld. By offering a side-by-side
comparison of different perspectives presented in crisp and direct terms, the book
should also prove useful to a wide audience. There was a risk of cacophony or radical
polarization, but in the end the book presents a range of views in the manner of a
vigorous and nonlinear dialogue. Perhaps the most important contribution of this
volume is what lies between the essays “ the unstated connections, disputations,
and elaborations “ that must be supplied by the reader. This book opens a fruitful
conversation; it does not pretend to provide the last word.

LLEWELLYN ON PHILOSOPHY IN AMERICAN LAW
The volume begins with Llewellyn™s essay, published seventy-¬ve years ago.
Llewellyn (1934: 205) makes clear that he adopts a pragmatic and functional-
ist view of philosophy, arguing that theoretical efforts gain traction with “life-
in-action” only when they meet social needs. He sets out to investigate how we
grow “into ways of doing which comport with some one philosophy and not with
another . . . a process dependent largely on the felt needs of the persons concerned”
(206). Philosophy is part of our lived reality “ often plural, messy, and inconsis-
tent “ rather than an intellectual exercise that can bring clarity to social practices
and issue de¬nitive guidance about how to reform those practices (206). Llewellyn
suggested that philosophers might help to shape social reality, but only by tapping
into a “felt need of which no one had been conscious before” either by inventing a
new philosophy or adapting the philosophical underpinnings to a changing society
(206).
Working from this conception of philosophy, Llewellyn brashly describes the
tides of legal philosophy over the previous two hundred years in terms of the
adjustment of philosophy to social need. From natural law to Holmes and Cardozo,
legal philosophy has found its resonance by answering the challenges posed by
contemporary society. Llewellyn™s description of the past is a breezy romp of half-
sentences and allusions, but he ends with the serious questions that undoubtedly
motivated him to write the article: why is legal realism the correct philosophy
for American society in the 1930s, and why hasn™t society expressly recognized
its “felt need” for this changed philosophical outlook (211)? During the previous
four years Llewellyn had battled for the realist camp in the great intellectual debate
of his day, but his functionalist view of philosophy required him to consider “
even if somewhat elliptically in this short essay “ why the realist cause had not
quickly succeeded. By acknowledging that law™s leaders remained beholden to the
ideology of business rapacity that had dominated the end of the previous century,
xii Introduction

Llewellyn faced the possibility that the legal realism propounded by the professors
was simply irrelevant to the practice of law.
Llewellyn™s response to this dilemma is not unlike Nietzsche™s: messianic yet
coldly analytical. Nietzsche knew he was condemned to be a posthumous philoso-
pher; although he could see clearly that God had already died, that the moralism
of his peers was utterly decadent, and that scholars were blind to the vitality of will
to power that animated life, he knew that it would be years before his lessons could
be understood by the philosophers of tomorrow. Similarly, Llewellyn suggested
that the “spear-point” of legal realism had “advanced” in the work of Pound,
Frankfurter, Brandeis, Dewey, and others, and had been accepted in “the actual
behavior of the better bar” despite its “hopelessly unorthodox” character; never-
theless, he acknowledged that legal realism remained on the fringes of conscious
legal life. Legal practice would have to grow into legal realism, because there was as
yet no expressly felt sense of the need to do so.3 Just as Holmes slowly developed a
cynical realism that even more slowly won over the Supreme Court in public law,
Llewellyn (1934: 210) predicted that there would be a “lag” between insight into a
vaguely felt need in private law and the instantiation of a new philosophy.
Moreover, Llewellyn understood that philosophies do not appear and disappear
in a ¬‚ash. Instead, they tend to cumulate and provide a heterodox account even
as one or more become ascendant at a particular time. He argued that while
the “profession at large” is still in¬‚uenced by natural law, and even more by
the positivism of the robber-baron era, nevertheless it was then beginning to
incorporate realism into its practices (Llewellyn 1934: 212). Legal realism is not the
better philosophy because it can tell practitioners how to go about their business,
Llewellyn emphasized, but because it provided the orientation for practitioners to
address the rapidly changing needs of society. Legal realism is the philosophy that
will answer future needs, rather than the philosophy that will create the future.

LLEWELLYN™S REALIST CRITIQUE OF LEGAL PHILOSOPHY
Llewellyn™s essay is cast in the context of the debates of the 1930s, but he raises
fundamental questions about the nature of philosophy and its relationship to social
practices such as law. Llewellyn™s attitude about potential connections between phi-
losophy and law is explained in greater depth by his biographer, William Twining.
Llewellyn plainly evidenced a “dislike of professional philosophy and philosophers”
(Twining 1985: 93) and rejected “what might be termed the Royal Tennis Tradition
in jurisprudence” (173). But Llewellyn was equally adamant that his jurisprudence
course was the most important course offered in the law school, with many of his
students subsequently agreeing with this assessment. Llewellyn was not playing
3
“We are all legal realists now” is a well-worn phrase that suggests that Llewellyn™s assessment was
correct, and that to some extent he was fated to be a posthumous jurisprude. But as Joseph Singer
(1988: 467, 504) “ perhaps the ¬rst theorist to endorse the phrase “ suggests, the statement is true
only with quali¬cation. Although legal realism, as channeled through such diverse forms of modern
legal theory as law and economics and critical legal studies, certainly holds sway in the modern
academy, it has not yet succeeded as a philosophy that can describe legal practice satisfactorily
(Singer 1988: 467“8). Perhaps the theoretical “spear-point” has not been advanced much since
Llewellyn™s day, although our lived experience has clearly become more realistic.
Introduction xiii

semantic games. He believed that legal theory should be simplifying rather than
esoteric or specialized, and he considered jurisprudence the bringing to bear of
“general serviceable life-wisdom” to issues facing lawyers and judges (Twining
1985: 116).

While it is not uncommon for theorists to seek a rapprochement between “theory”
and “practice,” Llewellyn™s persistent urge to operate at the level of participant
working theory is rare in jurisprudence, if not unique. Many of those who have
revolted against the Royal Tennis Tradition have rejected all jurisprudence as
being esoteric and useless; few, if any, have rivalled Llewellyn™s consistency in
seeking to provide for participants usable theory, drawing on the best modern
thought available in a variety of disciplines, whilst maintaining a broad perspective
and liberal values. . . . With some justi¬cation Llewellyn considered this line of
thinking to be his most original contribution to jurisprudence (Twining 1985:
370).

Llewellyn avoided the problem of relating theory to practice by steadfastly refusing
to sever them at the outset of his inquiry.
Llewellyn was a legal realist but he adamantly dismissed the idea of a ¬nely
tuned realist school of thought, eschewing the reductionist sociological and psy-
chological approaches taken by some of his colleagues. He embraced the powerful
potential for modern social science to clarify pressing issues in law, but he con-

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