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sistently rejected a scientistic ideology that would commit the same mistake as
the stultifying ideologies of an earlier day. “In short, he favoured a commonsense
strategy for research, based on a realistic appraisal of the obstacles in the way of
quick advance, such as the cost, the lack of glamour in much of the work, and
the shortage of personnel with appropriate training. . . . [His] was a pragmatic and
sensible approach which could form the basis for a rounded strategy for develop-
ing the subject, giving due regard both to the importance of theory and to likely
practical dif¬culties” (Twining 1985: 196). Of course, the social sciences have made
tremendous strides in the intervening years, leading Twining to wonder whether
Llewellyn™s cautious approach had, by the end of his career, become “complacent
and unambitious in relation to the possibilities and the needs” (196).
There is good reason not to cast Llewellyn as a precursor of wholly empirical
approaches to law. Dennis Patterson (1990: 577“9) has argued persuasively that the
substance of Llewellyn™s philosophical views anticipated Wittgenstein™s later work.
Patterson contends that Llewellyn ¬rmly believed that philosophy leaves legal
practice as it is, but that nevertheless there is important work to be done within
the practice. “Like Wittgenstein, Llewellyn believed that we can never escape the
realm of linguistic understanding. What this means for the critique of law is that
the ground of critique must be internal to legal practice itself. The impossibility of
transcending the (linguistic) limits of the practice and reaching a point outside the
practice from which to critique it leaves only those within the practice as sources “
and evaluators “ of criticism” (599“600). It is this orientation that led Llewellyn
to reject the stereotypical realist view that law should be subsumed into the social
science departments of research universities (Ansaldi 1992: 711; Llewellyn 1962:
xiv Introduction

We can sharpen this account of Llewellyn™s approach to philosophy and law by
turning to his (still untranslated) 1931“2 lectures on law and sociology that he
delivered in Germany. Llewellyn emphasized the integrity of legal practice and its
connection to sociological jurisprudence in ways that illuminate the brief remarks
that he would write in the following year in “On Philosophy in American Law.”
He argued that philosophies arise to render developed practices such as law into a
“science,” by which he meant a re¬‚ective practice that is both descriptively accurate
and critical (Ansaldi 1992: 746“9). Re¬‚ections on practice, Llewellyn contended,
“generally lead to attempts to draw together everything theretofore learned about
a particular branch of knowledge, to a ˜science™ in the old-fashioned sense of the
term, a somewhat organized collection and classi¬cation of prior knowledge, but
one that jumbles knowledge with beliefs, with value judgments and prejudices, a
˜quasi-science.™ This philosophy coexists with, but does not supplant, the skills by
which people earn their living” (Ansaldi 1992: 747). Llewellyn (1932: 38) wrote
that “in this topsy-turvy world the central problem of all of law has to do with this
still almost completely neglected descriptive science, with this ˜legal sociology,™ this
natural science of living law,” but Llewellyn would have no truck with crude efforts
to subordinate legal practice to the social sciences narrowly construed (Ansaldi
1992: 748). He regarded legal practice as a normative enterprise that could not be
explained solely by sociological laws, although sociological inquiry was a necessary
¬rst step toward sharpening the outmoded legal philosophies of his day. Thus, one
of his important tasks was to describe how judges decided cases, and to link this
practice to broader perspectives that offered critical insight into legal practice.
Critics who allege that Llewellyn was an ivory-tower relativist who believed
in law™s absolute indeterminacy badly misread his work. Llewellyn found ample
stability within the practice of law while at the same time acknowledging room
for critique and reform (Patterson 1990: 580“1, 598“9). Llewellyn (1989: 11“12)
wrote that the totality of the practice of law was one of the most “conservative and
in¬‚exible” of social phenomena, and yet every case offered the opportunity for
the judge and lawyers to shift the direction of thinking. Llewellyn anticipated the
central tenet of contemporary legal hermeneutics, arguing that the meaning of a
legal rule is known only in its use, which always constitutes a reformulation of the
rule (either by expansion or contraction) even when the case feels like a simple
matter of deductive reasoning.

Thus, the task of the judge is to reformulate the rule so that from then on the rule
undoubtedly includes the case or undoubtedly excludes it. “To apply the rule” is
thus a misnomer; rather, one expands a rule or contracts it. One can only “apply”
a rule after ¬rst freely choosing either to include the instant case within it or to
exclude the case from it. . . .
Matters are no different, only more sharply highlighted, when a new case is such
that one ¬rst must mull over whether to include it within an existing category, or
must choose which existing category to include it in. . . .
For we all, lawyer not least, are mistaken about the nature of language. We
regard language as if words were things with ¬xed content. Precisely because we
apply to a new fact situation a well-known and familiar linguistic symbol, we lose
the feeling of newness about the case; it seems long familiar to us. The word hides
its changed meaning from the speaker (Llewellyn 1989: 74“5).
Introduction xv

His message was philosophically radical, but he was no linguistic skeptic, cultural
nihilist, or political revolutionary.
Llewellyn argued that the impasse between the philosophical interest in achiev-
ing justice in the individual case and the practical interest in achieving regularity
resulted in a “leeway, a space admittedly bounded, within which a judge may act
freely” (Ansaldi 1992: 755), but this realm of freedom was not beyond the scope
of jurisprudential assessment. Llewellyn™s realist inquiry did not shun normative
questions precisely because the practice under consideration was normative, and
one of the goals of legal sociology was to better understand what law ought to be.
“Accurate scienti¬c knowledge of what legal rules ˜deliver™ in real life is desirable
not just because it satis¬es a disinterested spirit of inquiry, but also because such
knowledge is an indispensable element in devising effective answers to questions
about what the law in the real world ˜ought™ to be” (749n162).

In philosophy, opposing points of view must be heard, whatever their nature or
their source. This is a fundamental principle for all philosophers who do not
believe that they can found their conceptions on necessity and self-evidence; for
it is only by this principle that they can justify their claim to universality.
As no criteria are absolute and self-evident, norms and values invoked in
justi¬cation are never beyond criticism. . . . for philosophy there is no res judicata.
(Perelman 1980: 71, 75)

Llewellyn™s instrumental conception of philosophy and his prescient approach
to language provide a rich starting point for thinking about the connections
between philosophy and law today. The nature of philosophical inquiry, the nature
of legal practice, and the general relationship between theory and practice are
as contentious today as they were seventy-¬ve years ago. This volume provides a
comprehensive, concise, and diverse collection of essays by some of the leading
contemporary theorists working at the intersection of law and philosophy. The
result is not a carefully organized department store in which one can hurriedly
¬nd the precise object one seeks. Instead, it is much more like a bazaar or open
market, in which it is best to wander, circle back, and change one™s mind about
what looks appealing and merits a second look. Because of space limitations, these
essays all point outside their borders to the work already completed by the author
and by work proposed for completion. This open market is not convened to make
a quick sale, then, but to invite the reader to join the contributors in an ongoing
and festive spirit of inquiry.

Karl Llewellyn and the Course of Philosophy in American Law
This book is not just about Llewellyn, but several contributions discuss Llewellyn™s
contribution to, and continuing effects on, American jurisprudence. Jan
Broekman draws from competing accounts of Llewellyn™s life to consider the
connections between life and law, and he situates Llewellyn™s interventions in a
historical story that has yet to come to fruition. The realist tendency is to assume
xvi Introduction

a pragmatic subject who regards the strings of case names as real objects of ref-
erence rather than as nonrepresentational signs, and Broekman urges realism to
take the next step by embracing the semiotic life in law. David Caudill argues
that Llewellyn suffers from the same natural law hangover that he diagnosed in
American jurisprudence. Caudill extends Llewellyn™s insights by bringing him into
conversation with Herman Dooyeweerd, a Dutch legal philosopher writing within
the natural law tradition but in a critical vein. Caudill draws the lesson that we
cannot avoid our hangover of pretheoretical commitments, but we can argue about
these assumptions productively.
Three contributions seek to continue Llewellyn™s effort to chart the broad course
of philosophy in American law. Brian Tamanaha describes the deleterious effect
of Llewellyn™s realism, arguing that the instrumental view of law as a tool of
social policy has displaced the rule of law. Without guiding agreement about what
“good” social policy entails, the law has become a battleground for interest groups
promoting their parochial visions, and to the victor go the spoils of power. Con-
sequently, Llewellyn™s belief that realism would unshackle law from the ideology
of the robber-barons has not been achieved. Steven Winter embraces realism and
notes that it grew and prospered in a variety of forms through the 1980s, but
he argues that during the past thirty years things have gone “terribly wrong” in
jurisprudence. The post-Soviet era has witnessed the decisive triumph of rule of
law formalism, capitalist private law, and liberal constitutionalism, but Winter
contends that this development has set jurisprudence back a century. Finally, Larry
Backer offers an alternative to Llewellyn™s historical narrative, arguing that the
quest for perfection is the unifying theme in American jurisprudence. Competing
accounts of law have been competing accounts of how to achieve perfection in
the American social experience; Backer contends that this unifying quest below
the tides of jurisprudential change is religious in character rather than strictly

Philosophical Perspectives on Law
Several essays argue that one or more broad philosophical themes are important
at this stage of the relationship of philosophy and American law. Robin West
contends that questions of normativity “ what makes a law good or bad “ have
not been prominent in recent analytic or critical jurisprudence and that this
omission is for the worse. Arguing that natural law thinking became too thin,
legal positivism began attending only to law after insisting on its separation from
morality, and critical theorists have focused on the relationship of law and power,
West counsels a reinvigoration of normative jurisprudence in the vein of work
by Martha Nussbaum. Jack Balkin argues for a renewal of critical legal theory to
attend to law™s ambivalent character: law renders power legitimate by containing it
within the legal structure, but it also legitimates the exercise of power after the fact.
A critical legal theory must attend to law™s plasticity and ambivalence, and in turn
must be self-critical of its tendency to regard law just as a mystifying legitimation of
unauthorized power. Penelope Pether locates in the widespread practice of courts
to decertify opinions for publication an emergent crude realism that equates law
with judicial ¬at, and thereby yokes the realist impulse to atavistic politics. In
Introduction xvii

response, she charts a more sophisticated approach to law, social science, and the
humanities that can make good on Llewellyn™s view of the liberating effects of
George Taylor calls for an inquiry into creativity that moves beyond the simple
model of applying a constant legal principle to a new set of facts by analogy. Guided
by the hermeneutical principle that meaning occurs in application, Taylor draws
on Ricoeur™s argument that application is metaphoric and imaginative. There can
be no methodology for ensuring a productive imagination: imagination always
threatens to undermine progressive goals even as it promises to advance them,
but it is only by engaging in metaphoric imagination that we can claim to make
these distinctions. Robert Hayman and Nancy Levit champion the “new legal
realism” that eschews a crude empiricism and focuses on the narrative dimension
of law. Extending the work of Llewellyn and other realists requires attention to
the elements of narrative truth, and so they call on critical storytellers to attend to
the truth as they seek to undermine the of¬cially sanctioned stories appearing in
judicial opinions.

Areas of Philosophy and Their Relationship to Law
Philosophy is neither a unidimensional nor a univocal discipline. A number of
essays connect speci¬c schools of philosophy or areas of philosophical inquiry to
law. Brian Bix argues that American thinkers unfairly have marginalized the British
tradition of analytical legal philosophy despite the growing number of American
theorists doing sophisticated work within this tradition. American tendencies to
demand pragmatic cash value leads to undervaluing careful philosophy, but Bix
argues that the analytic clari¬cation of legal concepts and the philosophical foun-
dations of various substantive areas of law does provide some useful connection
to legal practice, even if philosophical inquiry should not always be judged instru-
mentally. Austin Sarat and Connor Clarke contend that contemporary political
philosophy sheds light on the particularly vexing problem of prosecutorial discre-
tion. Agamben™s work on the state of exception provides the lens for understanding
prosecutorial discretion as a political question rather than a question of adminis-
trative bureaucracy.
Matthew Adler notes that legal theorists inexplicably have neglected contempo-
rary moral philosophy in their work, and therefore have failed to incorporate the
substantial developments in this area during the past twenty years. This inatten-
tion leads to skewed understandings, given that prior borrowing of lessons from
moral philosophy might now be challenged within the ¬eld. Perhaps qualifying
this indictment, Lawrence Solum heralds the development of virtue jurisprudence
to overcome the antinomies of contemporary legal theory just as moral philoso-
phy has looked to Aristotelian conceptions to overcome its roadblocks in recent
decades. He discusses the judicial virtues, the virtue of justice, and the virtue of
practical wisdom as a means of demonstrating how the aretaic turn can advance
the philosophy of law.
Adam Thurschwell suggests that Llewellyn™s essay follows the form of Continen-
tal philosophy in the post-Hegelian tradition, and that reading it in this manner
restores its critical edge. Using the example of af¬rmative action, he reveals how
xviii Introduction

we can reframe debates and locate the ethical impetus for change by attending
to the lessons of contemporary Continental philosophy regarding ¬nitude and
historicity. Jeanne Schroeder and David Carlson argue that freedom is the core
issue in legal theory, and that a psychoanalytic jurisprudence derived from Lacan
illuminates the legal character of the subject and law™s inability to quell subjective
desire. It is precisely this insight that reveals an inescapable freedom to choose
and act despite the inability of law or philosophy to direct action in a determinant

Philosophical Examinations of Legal Issues
A number of essays provide intriguing philosophical analyses of legal questions.
Frank Michelman addresses the perennial question of the relationship of law
and morality in a unique manner, suggesting that in some instances law may be
the premise for moral commitments. In particular, he suggests that socioeconomic
rights may be grounded in the morality of law in the sense that these commitments
depend on the premise of a certain legal order. In the next essay, David Fisher
examines how justice never fully achieves its goal of rising above the deep-seated
urge to seek revenge. Working from Ricoeur™s later work on justice, law, and ethics,
Fisher calls for a nonbinary thinking that understands how law can join the goal
of living in mutual reciprocity with others with the need to build institutions that
can foster the use of practical wisdom in resolving con¬‚ict. Eugene Garver asks
why we privilege freedom of thought over freedom of action now that the religious
justi¬cation that salvation depends on one™s beliefs has receded. Drawing on the
Platonic dialogues for guidance he contends that love can explain this puzzle, that
tolerating another™s thoughts can be part of friendship and not just indifference.
After acknowledging the dif¬culty of making predictions, especially in light of
the chastened aspirations of contemporary philosophy, George Wright outlines a
number of complex problems including free will and the implications of arti¬cially
enhanced personhood that might become the focus of future thinking. He cautions
that a new philosophical humility might have an overriding effect on how these
issues are addressed. Finally, Anita Allen provides an antidote to the prevailing
ideologies “ what Llewellyn terms the atmospherics of a guiding philosophy “ of
maternalism and paternalism that shape the legal treatment of abortion rights.
Accepting the reality that the law might justi¬ably protect some women from
self-harm and cruelty does not justify contemporary atmospherics.

Law, Rhetoric, and Practice Theory
Philosophy and law might ¬nd more common ground, several contributors argue,
if we draw on the traditions of rhetoric and practice theory. Eileen Scallen challenges
the traditional philosophical quest for foundational truths by acknowledging that
plural ground truths are experienced in practice, drawing from the traditions of
ancient rhetoric, legal realism, and pragmatism. Scallen insists that this is not a
move to irrationalism or skepticism, but instead is an effort to develop a more
complete account that might better serve the ends of justice. My essay contends
Introduction xix

that law and philosophy have developed into insular guilds that can come into
vital contact again only by ¬nding common ground in the ancient art of rhetoric.
Using rhetorical knowledge as a guiding concept rather than rational or empirical
knowledge, philosophers and lawyers can work together to elucidate the demands
of justice. Peter Goodrich suggests that Llewellyn™s article indirectly undercuts
traditional philosophy in favor of a hermeneutical and rhetorical approach that
attends to the affective dimensions of law. As with dicta, rhetoric operates in a
realm of persuasion that does not claim compulsory power.
Dennis Patterson contends that conceptual analysis has run its course in legal
philosophy and should be replaced by a practice theory of law. In an attempt
to make good on Hart™s goal of a descriptive sociology of law, Patterson offers a
Wittgensteinian account of law as a shared normative practice of ongoing activity
rather than a regime of rules and principles. Robert Burns similarly contends
that a philosophy of law must adopt a radically empirical focus on the normative
practices that constitute law, principally by focusing on rhetoric and practical
reasoning. Legal practice can never be naturalized, Burns insists, but he argues
that the interpretations and critique of legal practice can still converge on the truth
of the human situation.

Questioning the Relationship between Philosophy and American Law
This book would be de¬cient if it did not place in question the hypothesis that
law and philosophy can have a positive relationship. Larry Alexander and Emily
Sherwin suggest that legal practitioners should ignore philosophy because they
are engaged in a rule-governed activity that employs reasoning by analogy. This is
problematic because it is philosophically suspect to follow a rule that one regards
as wrong, and there is no persuasive philosophical defense of analogical reasoning
as a rigorous practice. Steven Smith contends that theorizing about law is nearly
moribund, with legal positivism devolving into irrelevance beyond a narrow group
of academics at the same time that reviving the classical theistic account has be-
come highly improbable. But legal practice, he argues, continues to proceed as if
the classical account was acceptable, thereby placing law in a quandary from which
Smith sees no obvious escape.
In a decidedly more critical vein, Pierre Schlag challenges the intellectual fasci-
nation with law™s propositional character, accusing legal theorists of assuming the
discourse of judges rather than of genuine critics. He identi¬es the fetishism of
rankings and culture of garish self-promotion that infects contemporary academia
as a synecdoche of rampant anti-intellectualism. In a coda, he makes a bold sugges-
tion for what real thinking will require of law professors. Philippe Nonet castigates
both academic philosophy and law, arguing that philosophy as metaphysics is
complicit with law as technique. He regards philosophical questioning of essential,
and therefore unanswerable, questions as highly unlikely in the present circum-
stances of the modern research university, but in any event this activity of thinking
could occur only outside of law. This is the pessimistic implication of his title,
which places question marks after both philosophy and law. There are unfortunate
Heideggerian overtones to his claim that one may only philosophize in certain
xx Introduction

languages; I trust that this volume, including Nonet™s essay, rebuts this aspect of
his thesis.

It seems clear that the relationship between philosophy and law is at once more
sophisticated, diverse, and contested than it was when Llewellyn wrote his essay
seventy-¬ve years ago. The essays in this volume provide intriguing points of entry
to some of the debates and questions that de¬ne the current moment. From calls to
augment the philosophical analysis of legal questions to skeptical rejoinders placing
both philosophy and law in question, the book ranges widely and deeply. Carlos
Ball, Marianne Constable, and Michael Sullivan “ a law professor, a professor of
rhetoric, and a philosophy professor “ provide intriguing re¬‚ections that bring the
essays into conversation with each other in a manner that stimulates future work.
Ball suggests that the contributions reveal an optimism about the potential to
enrich law through philosophy, even if most contributors are not satis¬ed with the
current state of affairs. There are dissenters, of course, with Philippe Nonet™s essay
serving as the most stark expression of pessimism. Ball begins with the divide that
exists currently between the legal academy and the practice of law, and he concludes
that legal theorists are perhaps most divorced from the real world of practice that
Llewellyn so highly prized. Nevertheless, considering the quality and vibrancy
of the diverse dialogue about the relationship between law and philosophy, Ball
expresses his own optimism.
Constable takes a different tack. Working from my initial charge to capture the
moment in legal philosophy, Constable suggests that the essays collectively uncover
the impossibility of capturing the moment and the inevitability of our striving to
do so. She then effectively regroups the contributions along several different axes,
helping to uncover the moment revealed by these strivings. She gestures to the
un¬nished task of thinking, which is certainly a ¬tting read of this volume.
Sullivan concludes the volume by considering some of the contributions in
greater detail, but in a manner that ¬ts with the thematic approaches developed by
Ball and Constable. Sullivan suggests that the volume exempli¬es Llewellyn™s thesis
that we must take a fresh look at law in action, inasmuch as the competing and
complementary essays jar the reader to consider matters anew. Sullivan emphasizes
that the variety of approaches are a bene¬t rather than a scandal: the very under-
standing of law and philosophy are contested, not to mention the relation between
these two practices. We can conclude, Sullivan argues, that law and philosophy
have a vibrant and contested meeting point at this juncture in our intellectual
history. What this dynamic interaction will yield remains an open question.
Several years ago I thought that this project might provide a basis for stimulating
thinking about how to move forward from the jurisprudential moment of our
times. The resulting volume is not a road map to be followed; in some respects, it is
as if I asked directions of numerous people speaking different languages and using
different scales of the topography ahead. Of course, this isn™t a mark of failure:
how could things be otherwise? All too often, self-assured philosophers and law
professors assert their disciplinary authority and proclaim how these disciplines
Introduction xxi

may properly intersect, all the while cautioning against the ebullience that might be
unleashed if thinkers who have not been properly vetted “ who do not subscribe to
the dogma of the day “ are permitted to speak. Such cloistered conversations among
those largely in agreement provide a measure of reassurance and security, but they
promote only scholastic scribblings. This volume was conceived as a way to bring
the boisterous conversation of the agora into a focused moment, providing the
reader with a means of re¬‚ecting on the current state of law and philosophy. Those
who seek a de¬nitive answer, or con¬rmation of an answer that they already hold
secure, will be disappointed. However, I hope that the inquisitive, searching minds
of those who will de¬ne the future will be inspired by this volume to continue the
conversation it begins.


Ansaldi, Michael. “The German Llewellyn.” Brooklyn L. Rev. 58.3 (1992): 705“77.
Connolly, James J., Peggy Pschirrer, and Robert Whitman. “Alcoholism and Angst in the
Life and Work of Karl Llewellyn.” Ohio N.U. L. Rev. 24.1 (1998): 43“124.
Levy, Beyrl Harold. “Book Review: The Common Law Tradition“Deciding Appeals,” U. Pa.
L. Rev. 109.7 (1961): 1045“51.
Llewellyn, Karl N. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
. Recht, Rechtsleben und Gesellschaft [Law, the Life of Law, and Society]. Ed. Manfred
Rehbinder. Berlin: Duncker & Humblodt GmbH, 1977 (1932 lectures). (Quotations are
from translations included in Ansaldi 1992.)
Patterson, Dennis. “Law™s Practice.” Colum. L. Rev. 90.2 (1990): 575“600.
Perelman, Chaim. “Justice and Reason.” Trans. Susan Rubin. In Justice, Law, and Argument:
Essays on Moral and Legal Reasoning. Dordrecht: D. Reidel, 1980, 66“75.
Ricoeur, Paul. Freud and Philosophy: An Essay on Interpretation. Trans. Denis Savage. New
Haven, CT: Yale Univ. Press, 1970.
Singer, Joseph William. “Legal Realism Now.” Cal. L. Rev. 76.2 (1986): 465“544.
Twining, William. Karl Llewellyn and the Realist Movement. 1973. Reprint, Norman: Univ.
of Oklahoma Press, 1985.
part one. karl llewellyn and the course of
philosophy in american law
January, 1934

University of Pennsylvania
Law Review
And American Law Register

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