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had long known and what cognitive psychologists were just discovering “ the
extraordinary power of stories. Research in the social sciences shows that stories
The Stories of American Law 93

are the way people organize information and make sense of the world. Stories
matter in law not only because they are the way people comprehend experiences,
but because personal stories are such powerful tools for persuasion. They are rich
with details and facts; they humanize, evoke empathy, and offer insights into other
people™s lives. For good lawyers, then, legal practice is a storytelling enterprise.
Trials have long been contests in storytelling, and now, stories are sifting into
appellate litigation. As just one example, in the mid-1980s, the National Abor-
tion Rights Action League began to submit an amicus brief in major Supreme
Court abortion cases. Known as the “Voices Brief,” this document was primarily
a compilation of letters “ narratives of women™s reasons for having an abor-
tion and experiences in trying to obtain one “ intended to create some level of
empathic understanding in members of the Court by allowing them to more
directly hear women™s voices. Today, appellate decisions, once relentlessly stripped
of their human content, now address the stories of lived experience.
Even the ability to tell a story “ to have one™s day in court “ has value. The
expressive function of the legal process “ the very heart of due process “ is signi-
¬cant and often undervalued. People who have been wronged want to tell their
stories, want to voice their pain. The opportunity to be heard in a formal tribunal
that takes complaints seriously may give a victim a restored sense of control or a
renewed sense of dignity. This is why the client-centered narrative work by Al¬eri
and others is so important “ it makes sure that the story is the client™s, not the
lawyer™s.
Narratives provide truths beyond the individual tellings. Because lived experi-
ences have plural truths, stories offer multiple different perspectives and interpre-
tations of events. Narratives thus offer an important type of qualitative research “
they record personal experiences in varying cultural contexts and often provide a
platform for survey research. Researchers are beginning to undertake ethnographic
studies of participants in the legal system. For example, John M. Conley, an anthro-
pologist and law professor, conducted interviews of lawyers in law ¬rms to compare
perceptions of racial and gender equity in law ¬rms to diversity statistics. The com-
bination of interviews and statistics revealed that lawyers felt resigned to the racial
status quo, while law students lack incentives to change the racial dimensions of
¬rms and feel powerless to do so (Conley 2006).
Stories have become the evidentiary foundation for some fundamental changes
in law, particularly in the human rights arena. Stories from all over the world have
documented human rights abuses: arbitrary detention, enslavement, forced labor,
rape, torture, forced relocations, political executions, cultural genocide. Organiza-
tions like Human Rights Watch and Amnesty International gather victims™ stories
to illuminate these violations of rights. The Battered Mothers™ Testimony Project
collected the accounts of battered women about their degrading treatment in Mas-
sachusetts family court. “˜Typically, these are the very voices that are muted or
silenced by the government and society™” (Goodmark 2005: 723, 729). Law from
the bottom up will demand even more speci¬c attention to the particular situations
of individuals “ and that means their stories.
We are learning that narrative truths are vital to human existence. As generations
age, the gathering and preservation of stories has taken on a particular urgency.
94 Robert L. Hayman Jr. and Nancy Levit

The projects to collect these narrative truths have ranged widely from the stories
of comfort women in Asia to those of the stolen generations in Australia. The
Department of Justice™s Of¬ce of Special Investigations has preserved stories from
Holocaust survivors to assist in the prosecution of Nazi war criminals. The Truth
and Reconciliation Commission in South Africa helped a country transition from
apartheid to democracy. The lesson is timeless “ stories can do more than unearth
agonizing truths, expose perpetrators, and document atrocities; they can turn
toward understanding, toward forgiveness and love; they can begin to heal people,
and even heal nations.
———
But if lawyers are to trade in stories “ and if we are to take the lawyer™s trade
seriously “ is it fair to ask that their stories be true? The “Voices Brief,” after all, has
yielded to the new reality of Gonzales v. Carhart: the teaching of a very different
amicus brief, that women come to regret the choice to terminate a pregnancy.
Which story do we believe? What stories are true?
The simplest answer “ and, we suspect, the most common response “ equates
truth with persuasiveness: those stories are true that persuade. There is no end to
the questions begged by this response “ the whom™s, how many™s, how much™s, for
how long™s, and so on “ but we sense a more fundamental dilemma.
The line separating persuasion and coercion is surely a ¬ne one when we speak
of the law: the of¬cial narrative comes cloaked in an inherent “ and perhaps
necessary “ veneer of truth. But of¬cial narratives can be faulty; of¬cial narratives
can be false. And we “ storytellers, and critics of stories “ need a way to describe
the faults, and the falsehoods. We need a way, then, to describe the truth, as a
condition of “ not merely the result of “ persuasion.
Thus, the task of the modern storyteller, we think, is to renew the struggle
for truth. It is a struggle that must recognize limits: that knowledge is culture
bound; that the structural conditions on knowledge are barely known and perhaps
unknowable; that truth must be contextual, and contingent, and personal. But it is
simultaneously a struggle for transcendence “ for truths to be found beyond these
limits, if only because the limits must be, in the course of the search, momentarily
suspended.
If law is to partake equally of science and art, we probably should insist that its
art be genuine. “Language destroyed by irrational negation becomes lost in verbal
delirium,” wrote Camus; “subject to determinist ideology, it is summed up in the
slogan.” “Halfway between the two,” he concluded, lies art. We should insist on
more than verbal delirium, on more than slogan. We should insist on something
that “uses reality and only reality with all its warmth and its blood, its passion and
its outcries” but that simultaneously “adds something that trans¬gures reality”
(Camus 1956: 273). We should insist on some reconciliation of the actual and
aspirational, of the real and the ideal. We should insist on something that we can,
without embarrassment, describe as the truth.
We do not know the criteria of narrative truth. We suspect that they will be
found in those features of our lives that are distinctively “ and universally “
human. Precisely what those are, and how they are to be identi¬ed, we cannot say.
The Stories of American Law 95

But we think the search is a worthy project “ a necessary chapter, perhaps, in the
story of American law.

WORKS CITED

Al¬eri, Anthony V. “Reconstructive Poverty Law Practice: Learning Lessons of Client Nar-
rative.” Yale L.J. 100.7 (1991): 2107“47.
Balkin, J. M. “Some Realism about Pluralism: Legal Realist Approaches to the First Amend-
ment.” Duke L.J. 1990.3 (1990): 375“430.
Bell, Derrick. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic
Books, 1987.
Camus, Albert. The Rebel. New York: Vintage, 1956.
Cohen, Felix S. “Transcendental Nonsense and the Functional Approach.” Colum. L. Rev.
35.6 (1935): 809“47.
Conley, John M. “Tales of Diversity: Lawyers™ Narratives of Racial Equity in Private Firms.”
Law & Soc. Inquiry 31.4 (2006): 831“53.
Conley, John M., and William M. O™Barr. “A Classic in Spite of Itself: The Cheyenne Way
and the Case Method in Legal Anthropology.” Law & Soc. Inquiry 29.1 (2004): 179“216.
“Court Strikes Blow to School Race Policies: Justices Used Brown Decision to Undo Its Spirit
and Intent.” Star-Trib. (Minneapolis-St. Paul), July 2, 2007: 8A.
Cross, Frank B. “Political Science and the New Legal Realism: A Case of Unfortunate
Interdisciplinary Ignorance.” Nw. U. L. Rev. 92.1 (1997): 251“326.
Delgado, Richard. “Storytelling for Oppositionists and Others: A Plea for Narrative.” Mich.
L. Rev. 87.8 (1989): 2411“41.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 1977.
Erlanger, Howard, Bryant Garth, Jane Larson, Elizabeth Mertz, Victoria Nourse, and David
Wilkins. “Is It Time for a New Legal Realism?” Wis. L. Rev. 2005.2 (2005): 335“63.
Farber, Daniel A. “Toward a New Legal Realism.” U. Chi. L. Rev. 68.1 (2001): 279“303.
Frank, Jerome. Courts on Trial: Myth and Reality in American Justice. Princeton, NJ: Princeton
Univ. Press, 1949.
Goodmark, Leigh. “Telling Stories, Saving Lives: The Battered Mothers™ Testimony Project,
Women™s Narratives, and Court Reform.” Ariz. St. L.J. 37.3 (2005): 709“57.
Gulati, Mitu, and Laura Beth Nielsen. “Introduction: A New Legal Realist Perspective on
Employment Discrimination.” Law & Soc. Inquiry 31.4 (2006): 797“800.
Liptak, Adam. “The Same Words, but Differing Views.” N.Y. Times, June 29, 2007: A24.
Llewellyn, K. N. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
Llewellyn, Karl N., and E. Adamson Hoebel. The Cheyenne Way: Con¬‚ict and Case Law in
Primitive Jurisprudence. Norman: Univ. of Oklahoma Press, 1941.
Rubin, Edward L. “The New Legal Process, the Synthesis of Discourse, and the Microanalysis
of Institutions.” Harv. L. Rev. 109.6 (1996): 1393“1438.
Williams, Patricia J. The Alchemy of Race and Rights. Cambridge, MA: Harvard Univ. Press,
1991.
part three. areas of philosophy and their
relationship to law
12 On Philosophy in American Law:
Analytical Legal Philosophy
brian h. bix


THE RECEPTION OF ANALYTICAL LEGAL PHILOSOPHY
Analytical legal philosophy is the study of the nature of law, and the nature of legal
concepts, through analysis “ the breaking down to component parts, the search for
necessary and suf¬cient conditions, or the rational reconstruction of a practice. It is
connected to, or a subcategory of, the analytical tradition in philosophy generally,
a tradition that has dominated English-language philosophy for the past century.1
In Britain, analytical legal philosophy is at the center of jurisprudence, a position
it has held basically since John Austin™s work in the early nineteenth century (e.g.,
Austin 1995). It is not accidental that most of the central work in analytical
jurisprudence has been done by theorists teaching at British universities (e.g.,
Austin, H. L. A. Hart, Joseph Raz, and Neil MacCormick). In particular, modern
English-language legal philosophy largely derives from the work of Hart (1968,
1982, 1983, 1994). In other countries, legal philosophy is often dominated by
theories that derive from the work of another analytical legal philosopher (and
another legal positivist), Hans Kelsen (e.g., 1992).
Matters have always been different on this side of the Atlantic. In the United
States, analytical legal philosophy has been both consistently misunderstood and
marginalized. For an American scholarly audience that tends to focus on practical
questions “ in particular, how should judges decide cases? And how should the
Constitution be interpreted and applied? “ the analytical questions about the basic
nature of law and legal concepts seem out of place. American law students, when
faced with analytical writers, tend to be perplexed as to why one would spend
time inquiring about the nature of law if such investigations have no bottom-line
implications for legal practice. And such misunderstandings or dismissals do not
occur only among students; they have been common among legal scholars as well,
with the legal realists of the early twentieth century mischaracterizing the analytical
1
Analytical approaches to philosophy are generally contrasted with the Continental tradition, usually
associated with more systemic thinkers like G. W. F. Hegel, though some commentators argue that
the analytic-Continental distinction is misleading or overstated.
I am grateful to Matthew Adler, Francis J. Mootz III, Mark D. White, and an anonymous reviewer for
their comments and suggestions on an earlier draft of this chapter.


| 99 |
100 Brian H. Bix

legal theorists (seeing them as mere formalists; Sebok 1998: 20“47) just as badly
as have contemporary law and economics analysts and critical theory advocates.
Among contemporary American legal scholars, it is common for central analytical
legal philosophy texts like H. L. A. Hart™s (1994) The Concept of Law to be read as
merely misguided instructions for judicial (or constitutional) reasoning.2
Despite the somewhat hostile reception analytical legal philosophy has had in
the United States, American theorists have made important contributions. On the
whole, this is both a very good time and a very dif¬cult time for analytical legal
philosophy in the United States. The positive news is the growing quality and
sophistication of the product. If the analytical legal philosophy of one hundred
years ago, or even forty years ago, was mostly re¬‚ections of lawyers with theoretical
interests but little philosophical training, contemporary writing in the area is
dominated by academics with doctorates in philosophy or comparable training
and commitment, and the literature re¬‚ects this.
However, the growing sophistication of the debate within analytical jurispru-
dence,3 and a corresponding demand for expertise among those taking part, has
created its own obstacles for the role and reception of analytical legal philosophy
in the United States. The problem is that the current level of debate in analytical
legal philosophy requires a level of theoretical knowledge of the philosophical lit-
erature that few not already af¬‚icted with a philosophy doctorate are likely to have,
and few not already committed to working in the area will likely have the time
or motivation to attain. To partake in the most important debates in the current
literature, it is helpful “ and perhaps necessary “ to have a familiarity with concep-
tual analysis, natural kinds analysis, Wittgenstein™s rule-following considerations,
epistemological naturalism, the philosophical analysis of conventions and joint
intentional activity, and many other philosophical topics. None of these is easy
to develop ¬‚uency in over a weekend. It is perhaps not surprising that those who
have taken the long, hard path to a careful understanding of a dif¬cult thinker
might be irritated when coming across the shoddy and misleading use of those
same ideas by academics who display only a surface familiarity (see Leiter 1992).
I think it is reasonable to ask scholars who invoke (say) Wittgenstein or Hegel or
Kant or Foucault to do so knowledgeably. However, these are not theorists who
can be quickly or easily mastered.
At the same time, much is lost if legal philosophy, narrowly understood, becomes
a conversation con¬ned to a handful of specially quali¬ed scholars. The argument
here is not that analytical philosophy needs to be accessible so that it can contribute
directly to debates about legal reform. To the contrary, as already mentioned, I
think such a view would re¬‚ect a common but quite unhelpful misunderstanding
of analytical legal theory. However, there is a great and obvious loss if theories about
the nature of law were to be cut off from input by thoughtful practitioners and

2
Misunderstandings, to be sure, do not go in only one direction; it is equally common for European
theorists to misinterpret American legal realism, law and economics, and contemporary critical
theories.
3
This in no way is to deny that there is a similar increase of expertise and specialization (and jargon)
in other parts of American legal theory. It is just this universal increase in specialization that,
unfortunately, decreases the possibility of discussions across disciplinary approaches.
On Philosophy in American Law: Analytical Legal Philosophy 101

theorists whose specialty or (inter)discipline was something other than advanced
philosophy.
A related, if somewhat different, complaint regarding the discussion of famous
analytical theorists in the legal literature is the tendency to display a famous
theorist™s name as an authority “ as a conversation stopper. The message comes
across as, “My position is supported by famous philosopher (or social theorist
or literary critic or economist) X, and who are you, mere mortal, to question
X™s views!” Basically, what one has here are theorists hiding behind big names in
philosophy, as if the mere mention of Wittgenstein or Kant or Aquinas should be
suf¬cient to quiet all opposition.
The ¬rst problem with these sorts of articles is (as already discussed) that the
author has often not done the work necessary to ground his or her reading of the
great theorist™s work, or to justify the application of that work to the legal topic in
question (I am most familiar to such errors in the purported application of Ludwig
Wittgenstein™s later work to legal interpretation [Bix 2005], but I have heard of
similar errors relating to many other theorists “ from Hobbes to Kant to Heidegger
and Habermas, and beyond).
Second, even if the article™s argument does offer an accurate portrayal of, say,
Wittgenstein™s or Kant™s or Foucault™s views on the topic in question, the accuracy
of the exegetical claim is no guarantee that the claim is correct in its assertions (e.g.,
about the nature of language, reality, or law). It is true that we should show proper
humility and deference before the great ¬gures in our ¬eld. However, all but the
truest of true believers are willing to concede that even the likes of Wittgenstein or
Kant (or Rawls or Raz) get it wrong on occasion. Ideas stand or fall on their own
merits, and even the greatest philosophers make mistakes. The authors citing these
grand ¬gures need to do more work to ground the arguments they have borrowed
or adapted.
It probably does not help matters that the current tenure criteria at many
schools value quantity of output (number of articles, and preferably very long
articles) rather than quality, and that the American legal academic culture generally
(furthered by the madness of students editing the most prestigious journals, usually
without the assistance of professorial peer review) tends to reward broad claims
(and sometimes outlandish claims) rather than more modest and careful claims.
Most theories about the nature of law purport to have some connection with
law as it is normally practiced and conventionally perceived. Legal realists like Karl
Llewellyn (1934: 205) properly focused our attention on the connection between
theory and “life-in-action.” However, it is important to realize that there is an
interest at least in many, if not all, people, to better understand the world around
them. And while it might be that all understanding must have a connection to
practical use, if only through a long chain of connections, in the short term,
understanding for its own sake ful¬lls a real human need.

SELECTED TOPICS
The paradigmatic analytical jurisprudence topic is the discussion of the nature of
law. If analytical legal philosophers still drag out the seemingly clich´ d question,
e
102 Brian H. Bix

What is law?, the compensation is that there are new twists to the analysis. Theorists
are now more conscious of the underlying methodological questions: What justi¬es
or grounds general or universal claims about the nature of law? How is it that we
can even talk about law as a general category: is law a Platonic idea, a natural kind,
a functional kind? Alternatively, can a general theory of law be grounded on a form
of conceptual analysis that does not require controversial ontological claims (like
a Platonic idea of law)?
The primary discussants in debates about the nature of law in the United States
are followers of legal positivism and natural law theorists. Within legal positivism,
there are some quite distinct approaches (all of which originated with theorists
from outside the United States).
John Austin (1995, and, to some extent, Jeremy Bentham [1970]) proffered a
command theory of law, equating law with the command of the sovereign. Austin
refers to his project at one point as the “scienti¬c” study of law (2002: 2:1107“8); in
any event, it tries to reduce legal norms to a single common denominator, focusing
on empirical claims that are in principle observable (e.g., who is in the habit of
obeying whom, whether requests have been made, and whether the entity making
a request has the willingness and ability to impose sanctions if the requests are
not complied with). Frederick Schauer has developed a legal positivist theory with
some ties to Austin™s approach.
H. L. A. Hart (1994) brought a hermeneutic turn to analytical legal philosophy in
general, and to legal positivism in particular. That is, he emphasized the importance
of the participant™s perspective. A theory of law is better, Hart argued, to the extent
that it incorporated an “internal point of view,” the perspective of a participant
for whom legal rules give reasons for action. Hart focuses on the social facts and
conventions that underlie the operation of the legal system. The difference between
a norm and a habit is the social fact that those who accept the norm use it as a
justi¬cation for their own actions, and a justi¬cation for criticisms of deviations
from what the norm prescribes. At the level of a legal system, what divides legal
norms from norms that are not part of the legal system under Hart™s approach is
a rule of recognition, whose criteria are in turn set by the facts of of¬cial behavior.
American scholars prominent in the Hartian tradition of legal positivism include
Jules L. Coleman, Matthew H. Kramer, David Lyons, Gerald J. Postema, Scott J.
Shapiro, and Philip Soper.
Hans Kelsen (1992) brought a neo-Kantian approach to his pure theory of law,
seeking the logic intrinsic to the normative system of law. Kelsen applied something
like Kant™s transcendental argument to law: his theory starts from the question,
What follows from the fact that people sometimes treat the actions and words
of other people (legal of¬cials) as valid norms? Particular legal norms are part
of chains of normative reasoning (e.g., the statute is valid because enacted by the
legislature, the legislature gets its power from the Constitution, and so on). Thus, to
assert the normative validity of an individual legal norm is implicitly to endorse the
whole chain, including the foundational norm, upon which the chain is grounded.
Kelsen referred to this foundational norm as the “Basic Norm” (Grundnorm) of
the legal system (e.g., “one ought to do what is authorized by the historically ¬rst
On Philosophy in American Law: Analytical Legal Philosophy 103

constitution”). American scholars working on Kelsenian legal positivism include
Stanley L. Paulson and Michael Steven Green.
While traditional natural law theory itself is more of a moral, metatheoretical,
and (at times and for some theorists) theological set of claims (and thus may not
¬t comfortably within the rubric of analytical philosophy), there has also been
one line of argument that starts with natural law assumptions and offers analytical
claims about the nature of law that compete with the claims of legal positivists. The
best contemporary example of a natural law theory of the nature of law is given by
the work of John Finnis (1980). Among the Americans working in the natural law
tradition, and its application to theories of law, is Mark C. Murphy.
A second common focus for analytical legal scholars is the analysis of legal
concepts. These theorists attempt to gain a more precise understanding of what is
meant by (legal) rights, (legal) duties, causation, (legal) responsibility, and other
legal concepts. This may be the part of the analytical legal philosophy that is least
known and discussed by those outside the area (outsiders may make fun of debates
about the question, What is law?, but that at least re¬‚ects some awareness of the
discussions, even if it tends to be inaccurate as well as dismissive), but it may also
be the part that has the most real-world impact. Case law debates about the nature
of, for example, legal cause often show the in¬‚uence of academic discussions (e.g.,
Wright 1985). And discussions at a more general level have also been in¬‚uential:
for example, Ronald Dworkin (1977: 153) on rights as trumps, the idea that
rights are essentially claims that override consequentialist or majoritarian reasons,
and the work by Wesley N. Hohfeld (1913, 1917) analyzing the way that judicial
references to (legal) rights could be helpfully analyzed into either claim rights,
powers, liberties, or immunities (with each having legal correlates and opposites).
A third focus is the so-called philosophical foundations of different areas of
law (most commonly the traditional common law areas “ like property, tort, and
contract “ but also extending to other doctrinal areas). These are generally efforts
that partake equally of explanation and justi¬cation of existing doctrine “ like
much of legal advocacy and law school teaching, it is rational reconstruction,
though at a fairly high or broad level. As the parallel with legal advocacy indicates,
theories of doctrinal areas of law potentially have signi¬cant practical applications,
possibly offering signi¬cant guidance to judges, especially when dealing with novel
questions of law. The extent to which such theories in fact inform judicial decisions
is less clear (and not easy to discern).
In theories of areas of law, it is common to ¬nd competing theories divid-
ing roughly between consequentialist theories (usually ef¬ciency based, af¬liated
with the economic analysis of law) on one side (e.g., Posner 2007, Shavell 2004),
and some form of deontological theory on the other. Examples of deontologi-
cal theories include corrective justice theories of tort law (e.g., Coleman 1992)
and promise- and/or autonomy-based theories of contract law (e.g., Fried 1981).
Important American ¬gures in philosophical foundations include Jules L. Coleman
and Gregory C. Keating (tort), Charles Fried and Jody S. Kraus (contract), Stephen
Munzer, Gregory S. Alexander, and Laura S. Underkuf¬‚er (property), and Larry
Alexander, Stephen J. Morse, and Michael S. Moore (criminal law).
104 Brian H. Bix

On the whole, the connection between the analytical theories and legal practice is
uncertain and controversial. And it is probably not to the bene¬t of either theorists
or practitioners to overstate the connection, for it is just the easy assumption that
all theories should or do have immediate normative implications that causes many
American scholars (and law students) to misunderstanding or underappreciate
analytical legal theory.


CONCLUSION
Analytical legal philosophy faces ongoing dif¬culties in the United States: already
frequently misunderstood or marginalized, it must also learn to balance theo-
retical advances with accessibility. At the same time, it is an approach that has
the advantages of a rich tradition as well as, in many ways, a bright future.
The work being done by contemporary scholars seems very strong, building
on what came before but bringing ever better analytical and normative tools to
the task.


WORKS CITED

Austin, John. Lectures on Jurisprudence; or, The Philosophy of Positive Law, 2 vols., 4th ed.
Rev. and ed. R. Campbell. 1879. Reprint, Bristol, UK: Thoemmes Press, 2002.

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