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should leave the scene and permit the law to continue on its philosophically
questionable course? No. Philosophy yields insights that can contribute positively
and concretely to the study and practice of law and guide empirical investigation
of the legal process. But it may be just as well that few if any philosophers or
philosopher-judges are capable of applying the discipline of philosophy to the
choices they make in daily life.

WORKS CITED

Alexander, Larry. “Bad Beginnings.” U. Pa. L. Rev. 145.1 (1996): 57“87.
. “The Gap.” Harv. J. L. & Pub. Pol. 14.3 (1991): 695“701.
Alexander, Larry, and Emily Sherwin. Demystifying Legal Reasoning. Cambridge: Cambridge
Univ. Press, 2008.
. The Rule of Rules: Morality, Rules, and the Dilemmas of Law. Durham, NC: Duke
Univ. Press, 2001.
Brewer, Scott. “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of
Legal Argument by Analogy.” Harv. L. Rev. 109.5 (1996): 923“1028.
Burton, Steven J. An Introduction to Law and Legal Reasoning. Boston: Little, Brown, 1995.
Dworkin, Ronald. Law™s Empire. Cambridge, MA: Harvard Univ. Press, 1986.
. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 1978.
Eisenberg, Melvin Aron. The Nature of the Common Law. Cambridge, MA: Harvard Univ.
Press, 1988.
Farber, Daniel A., and Philip P. Frickey. “The Jurisprudence of Public Choice.” Tex. L. Rev.
65.5 (1987): 873“927.
Gauthier, David. “Commitment and Choice: An Essay on the Rationality of Plans.” In Ethics,
Rationality, and Economic Behaviour. Eds. Francesco Farina, Frank Hahn, and Stefano
Vannucci. Oxford: Clarendon Press, 1996, 217“43.
Gilovich, Thomas, Dale Grif¬n, and Daniel Kahneman, eds. Heuristics and Biases: The
Psychology of Intuitive Judgment. Cambridge: Cambridge Univ. Press, 2002.
Goldman, Alan H. “The Rationality of Complying with Rules.” Ethics 116.3 (2006):
453“70.
Haidt, Jonathan. “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach
to Moral Judgment.” Psychological Review 108.4 (2001) 814“834.
Hart, H. L. A. The Concept of Law. London: Oxford University Press, 1961.
Horty, John F. “The Result Model of Precedent.” Legal Theory 10.1 (2004): 19“31.
Hurd, Heidi M. Moral Combat. Cambridge: Cambridge Univ. Press, 1999.
Kavka, Gregory. “The Toxin Puzzle.” Analysis 43.1 (1983): 33“36.
. “Why Even Morally Perfect People Would Need Government.” Soc. Phil. & Pol™y
12.1 (1995): 1“18.
Kuran, Timur, and Sunstein, Cass R. “Availability Cascades and Risk Regulation.” Stan. L.
Rev. 51.4 (1999): 683“768
Lamond, Grant. “Do Precedents Create Rules?” Legal Theory 11.1 (2005): 1“26.
Levi, Edward H. An Introduction to Legal Reasoning. Chicago: Univ. of Chicago Press, 1948.
Llewellyn, Karl N. The Bramble Bush. Dobbs Ferry, NY: Oceana Publishing, 1960a.
. The Common Law Tradition: Deciding Appeals. Boston: Little, Brown, 1960b.
McClennen, Edward F. “The Rationality of Being Guided by Rules.” In The Oxford Handbook
of Rationality. Eds. Alfred R. Mele and Piers Rawling. New York: Oxford Univ. Press, 2004:
222“39.
. “Pragmatic Rationality and Rules.” Phil. and Pub. Aff. 26.3 (1997): 210“58.
248 Larry Alexander and Emily Sherwin

McMahon, Christopher. Collective Rationality and Collective Reasoning. Cambridge: Cam-
bridge Univ. Press, 2001.
Murphy, Marc. C. “Surrender of Judgment and the Consent Theory of Political Authority.”
Law & Phil. 16.2 (1997): 115“43.
Plous, Scott. The Psychology of Judgment and Decision Making. Philadelphia: Temple Univ.
Press, 1993.
Posner, Richard A. The Problems of Jurisprudence. Cambridge, MA: Harvard Univ. Press,
1990
Postema, Gerald J. “Coordination and Convention at the Foundation of Law.” J. Legal Stud.
11.1 (1982): 165“203.
Rachlinski, Jeffrey J. “Bottom-Up versus Top-Down Lawmaking.” U. Chi. L. Rev. 73.3 (2006):
933“64.
Raz, Joseph. The Authority of Law. Oxford: Clarendon Press, 1979.
. Ethics in the Public Domain. Oxford: Clarendon Press, 1994.
. The Morality of Freedom. Oxford: Clarendon Press, 1986.
Schauer, Frederick. “Do Cases Make Bad Law?” U. Chi. L. Rev. 73.3 (2006): 883“918.
. Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making
in Life and Law. Oxford: Clarendon Press, 1991.
Shapiro, Scott J. “The Difference That Rules Make.” In Analyzing Law. Ed. Brian Bix. Oxford:
Clarendon Press, 1998: 33“62.
Sherwin, Emily. “Judges as Rulemakers.” U. Chi. L. Rev. 73.3 (2006): 919“31.
. “A Defense of Analogical Reasoning in Law.” U. Chi. L. Rev. 66.4 (1999): 1179“97.
. “Rules and Judicial Review.” Legal Theory 6.3 (2000): 299“321.
Slovic, Paul, et al. “The Affect Heuristic.” In Heuristics and Biases: The Psychology of Intu-
itive Judgment. Eds. Thomas Gilovich, Dale Grif¬n, and Daniel Kahneman. Cambridge:
Cambridge Univ. Press, 2002: 397“420
Sloman, Steven A. “Two Systems of Reasoning.” In Heuristics and Biases: The Psychol-
ogy of Intuitive Judgment. Eds. Thomas Gilovich, Dale Grif¬n, and Daniel Kahneman.
Cambridge: Cambridge Univ. Press, 2002: 379“96.
Sunstein, Cass R. Legal Reasoning and Political Con¬‚ict. New York: Oxford Univ. Press, 1996.
“A Symposium on the Theory of Public Choice.” Va. L. Rev. 74.2 (1988): 167“518.
Tversky, Amos, and Daniel Kahneman. “Availability: A Heuristic for Judging Frequency and
Probability.” In Judgment under Uncertainty: Heuristics and Biases. Eds. Daniel Kahne-
man, Paul Slovic, and Amos Tversky. Cambridge: Cambridge Univ. Press, 1982: 163“78.
Weinreb, Lloyd L. Legal Reason: The Use of Analogy in Legal Argument. New York: Cambridge
Univ. Press, 2005.
29 Jurisprudence: Beyond Extinction?
steven d. smith




Looking out on the legal world today, we can hardly fail to notice that law “ that
vast, sprawling enterprise constituted by lawyers, judges, bailiffs, specialized and
sometimes arcane procedures, daunting technical jargon, and dusty old books “
persists and even ¬‚ourishes. Meanwhile, jurisprudence in its core or classical sense
seems close to moribund. To be sure, the term jurisprudence has no set or canonical
meaning, so the term can be used to include intellectual inquiries that currently
thrive. But in its core sense, jurisprudence is understood to name the enterprise of
theorizing or philosophizing about the nature of law “ about what law is “ and
that enterprise currently exhibits few signs of life.
Of the various subjects of legal study, jurisprudence is the one in which the
most momentous and profound questions about law are presented and in which,
as Holmes (1887: 478) put it, we might hope to “connect . . . with the universe and
catch an echo of the in¬nite.” Or so we might suppose “ but it seems we would
be wrong. In recent years, at least, the questions addressed under the headings of
“jurisprudence” or “philosophy of law” hold little interest for any but the purest
(i.e., the most incorrigibly academic) of theorists. It is hard to resist the impression
that the questions are merely semantic, and that some of the most powerful minds
in the profession are amusing themselves with word play. In this vein, Dennis
Patterson (2006: 258) observes that “[a]nalytic jurisprudence” has been mired in
“a long, narrow debate, one that has kept it isolated from virtually all interesting
debates in epistemology and metaphysics.”
How to account for this peculiar state of affairs? And is there any remedy? Or
is jurisprudence a dinosaur that has outlived its time and is being arti¬cially kept
alive?

WHAT (AND WHY) IS THE QUESTION?
Jurisprudence, it might seem, is (or should be) to the various subjects of law “
contracts, torts, procedure “ as metaphysics is to physics and chemistry: just as
metaphysics is concerned not with hydrogen and oxygen and carbon but rather
with being as such, so jurisprudence is concerned with law in itself. What is law?
Historically, that question has sometimes pushed legal thinkers to sort them-
selves into two rough camps: proponents of (various versions of ) what is often
| 249 |
250 Steven D. Smith

called natural law have contended against partisans of (various versions of) legal
positivism. From a contemporary perspective, though, it is not easy to say just what
the competing sides are arguing about “ or why. A typical contemporary account
explains that natural law maintains, while legal positivism denies, that there is a
necessary connection between law and morality, or that a moral component is
required for something to count as law. “An unjust law is not law”: natural lawyers
are supposed to af¬rm and positivists to reject whatever it is that this traditional
slogan may be asserting.
But on this account, alas, the classic debate can come to seem quite pointless.
After all, we can all agree “ can™t we? “ that governments exist, that they issue
directives and enact rules, that there are methods or criteria by which of¬cials
determine what the directives and rules are. And we can likewise agree that some
of these directives and rules are just and good, while others are inef¬cient, unfair,
or downright oppressive. So, what is the disagreement about? Is it just that some
people “ the positivists “ want to call the wicked rules law (albeit bad law) while the
natural lawyers prefer to withhold that honori¬c designation? Have generations of
jurisprudence really been driven by this dispute over labeling?
To be sure, if it were assumed that citizens have a moral obligation to obey
anything classi¬ed as law, this disagreement might have practical signi¬cance. On
that assumption, positivists would be saying that we are morally obligated to obey
even iniquitous directives coming from government, and natural lawyers would be
resisting that distressing dictum. But in fact positivists need not, and typically do
not, preach any such duty; indeed, many reject the idea of any general obligation of
obedience to law. Thus, in contending that bad or unjust rules are nonetheless law,
positivists are not asserting that anyone is morally obligated to obey such rules. And
so, once again, we must wonder: what is there in the natural law“legal positivism
debate worth arguing about? Why is it not a perfectly adequate response “ to both
the natural lawyers and the legal positivists “ to say, “Well, some people use the
word law in that way. Other people don™t. You™re perfectly free to use the word in
either sense: just try to be clear about how you™re using it.”
Given the apparent pointlessness of the classic debate, it is not surprising that
people who do jurisprudence sometimes drift off into more intramural disputes.
And these disputes may indeed be interesting and meaningful “ sometimes, any-
way “ but unfortunately there is usually nothing particularly jurisprudential in the
questions they address. Thus, there are obvious differences of view about morality
and justice or about evaluative criteria. How should we determine whether par-
ticular laws or legal regimes are good or bad, just or unjust? Is a consequentialist
approach the best one? Something more deontological? But there is nothing in this
sort of question that is peculiarly within the province of jurisprudence: ethicists,
economists, and scholars and citizens generally would seem to have full standing
to join in those discussions. And they do: thus, in contract law, tort law, and
constitutional law, students, practitioners, scholars, and citizens argue freely and
passionately about what is good law and bad law without feeling the least need for
certi¬cation into the specialized discipline of jurisprudence.
Other potentially meaningful questions have a more positivist aspect. How
exactly do of¬cials “ how do we ourselves “ go about determining what the law
Jurisprudence: Beyond Extinction? 251

is and what it means? Is there in fact some master rule of recognition, as H. L. A.
Hart famously contended, and if so what is it, and how does it work? And how is
meaning extracted from legal texts? But once again, it is not clear that jurisprudence
has any special contribution to make to these debates. On the retail level, lawyers
and judges argue about such questions all the time. Is legislative history relevant
in determining what a law means? Is the intention of the legislature (or of the
framers) determinative? What signi¬cance does a prior judicial decision carry in a
current case? On the more wholesale level, Hart (1994: vi) famously described his
jurisprudence as a kind of “descriptive sociology,” and it would seem that social
scientists (e.g., sociologists or anthropologists) are better equipped than armchair
theorists or philosophers to study how a legal system works in practice “ what the
operative rules actually are, how of¬cials and subjects determine whether there is
a rule, and so forth.
Sensing these limitations, positivist theorists have of late occupied themselves in
disputing about exclusive as opposed to inclusive versions of legal positivism. On
good grounds (which would be tedious to elaborate here, but see Dworkin 2002),
most other lawyers and scholars have regarded these debates as of no conceivable
relevance to their own pursuits.
In sum, it seems that the classical natural law“legal positivism debate has a
jurisprudential character: but that debate has come to look merely semantic.
The term law is used in different ways: what more is there to say? By contrast,
evaluative questions and, conversely, empirical or sociological questions about law
look substantial and potentially interesting, but they do not seem distinctively
jurisprudential in character.
So, is there any matter or question of importance for jurisprudence “ jurispru-
dence in the core or classical sense “ to address?

THE MODERN DECLENSION
In considering the question, we might begin by noticing that the standard current
formulation of the natural law alternative to legal positivism “ the formulation that
understands natural law to assert some sort of necessary connection between law
and morality “ is not one that classical legal thinkers from Aquinas to Blackstone
employed. What they typically did say, in one way or another, is that nature itself “
the cosmos, and particularly human beings “ have been created by deity and
are subject to some providential scheme or law that transcends us. Remi Brague
(2007: vii) explains that in the premodern thought of the West, whether Christian,
Jewish, or Islamic, “human action had been conceived of as being in phase with
cosmological realities that were presumed to furnish humankind with a model, a
metaphor, or at least a guarantee, of right conduct.” The classical thinkers added
that rules and regulations made by human beings in some sense derive from or
are modeled on that more transcendent law, and it is this derivation or modeling
that provides the basis for regarding these human enactments as law. We can take
Blackstone™s (1979: 41) statement as representative: “This law of nature, being co-
eval with mankind and dictated by God himself, is of course superior in obligation
to any other. . . . [N]o human laws are of any validity, if contrary to this; and such
252 Steven D. Smith

of them as are valid derive all their force, and all their authority, mediately or
immediately, from this original.”
At the time he made it, Blackstone™s statement might have elicited yawns, but
someone of Blackstone™s stature making a similar claim at an academic jurispru-
dence conference today would raise eyebrows. The claim would surely generate
discussion and strong dissent “ at least during the breaks between the formal
sessions. (I say that the statement would provoke debate between sessions, and if
made by someone of stature, because for reasons to be noted shortly, the claim
might not be cognizable at all under current academic conventions, and someone
without stature making such a claim would probably be quietly dismissed as some
sort of crank.) If we permit ourselves to take it seriously, the claim as Blackstone
and other classical thinkers presented it seems somehow meatier, more substan-
tial, more worth arguing about, than the more domesticated contemporary claim
asserting a necessary connection between law and morality.
So, how did the classical claim “ and hence the classical version of the central
question of jurisprudence “ come to be reformulated in such sopori¬c terms? We
might notice several closely related changes that distinguish our situation from the
classical context, and that may help to account for the de¬‚ated rerendering of the
classical claim.
First, under modern conventions, academic discussion is supposed to be carried
on in secular terms “ meaning, for the most part, the terms of scienti¬c naturalism
and of commonsense everyday experience (Smith 2004: 22“37). In attempting to
explain some happening or phenomenon, it is perfectly permissible for modern
scholars to refer to religion “ or to people™s beliefs in God. By contrast, actual
appeals to God, or to anything that looks metaphysically suspicious or exotic, are
out of bounds. As a result of this drastic narrowing of the range of admissible
argument or explanation, claims or positions that would once have been framed
forthrightly in theological terms now must be translated into more secular terms “
or else abandoned.
Consequently, the assertion made by Blackstone and many others about a law
dictated by God himself is cognizable today, if at all, only in secular translation.
And the closest available translation, it seems, recasts the divine law as morality “
hence the current formulation of natural law as the claim of a necessary connection
between law and morality.
But morality itself is a deeply problematic concept “ in part because, as Alasdair
MacIntyre (1985) has shown, the kind of thinking associated with what we are now
pleased to call morality has itself been forced to endure the same sort of denaturing
(or at least renaturing) translation process to which appeals to divine law have
been subjected. As a consequence, it is by now far from clear what sort of thing or
desideratum morality even is. Consequentialists and deontologists, who represent
the leading metaethical schools today, seem almost to inhabit different conceptual
cosmoses (and the deontological cosmos itself exhibits a decidedly spooky quality
within the naturalistic frame of thinking that prevails today). Hence, a leading
metaethicist notes that “if one thing becomes clear by reading what philosophers
writing in meta-ethics today have to say, if is surely that enormous gulfs exist
Jurisprudence: Beyond Extinction? 253

between them, gulfs so wide that we must wonder whether they are talking about
a common subject matter” (Smith 1995: 3).
The result is that outside of metaethics seminars, where the different contempo-
rary answers are directly debated, scholars and thinkers tend to bracket the ques-
tion, and hence to be latitudinarian in their attitudes. To be sure, legal thinkers, like
other people, are likely to have their views about what the best account of morality
is. But they are also likely to treat metaethical views and debates as detachable from
the jurisprudential debates about whether there is a necessary connection between
law and morality. (There are exceptions; see, e.g., Finnis 1980.) Morality in this
context thus becomes a sort of placeholder term which, for practical purposes,
comes to mean something like “appropriate evaluative criteria, whatever those
might be.”
And thus the once ambitious and provocative contention that human law is
modeled on or derived from a preexisting transcendent or divine law is reduced to
the claim that a directive or rule is undeserving of the honori¬c term law unless it
satis¬es some set of minimal evaluative criteria. As we have noticed, that is a claim
more likely to provoke yawns and shrugs “ or polite de¬‚ections (“well, it all just
depends on how you de¬ne the terms”) “ than serious re¬‚ection and argument.

THE DIVIDE OF THEORY AND PRACTICE
There is to be sure a seemingly sensible and widely endorsed response to this
dispiriting depiction. People once believed, this standard response explains, that
human law was somehow derived from some more transcendent law “ that law, as
Richard Hooker observed, sat “in the bosom of God, her voice the harmony of the
world” (Gordon 1997: 1013). “[L]aw was felt as something ordained of god,” Karl
Llewellyn observed, “or even as something inherently right in the order of nature.”
Consequently, “the judge was to be regarded as a mouthpiece, not as a creator; and
a mouthpiece of the general, who but made clear an application to the particular.”
But this classical view of law, we now understand, was nothing but “superstition”
(Llewellyn 1930: 41“2). Law is not there to be found; it is made “ made by human
beings for human beings. And the important question “ the important normative
question, anyway “ is how to make law so as best to serve human interests.
Thus, from Holmes on, legal thinkers have overwhelmingly conceived of law in
instrumentalist terms (Tamanaha 2006). And on the basis of this understanding,
legal thinkers have over and over again predicted and advocated the abandonment
of older methods of doing law that were beholden to the classical understanding
(Smith 2007).
On this view, jurisprudence in the traditional vein can indeed seem to be a
monumental misallocation of intellectual energies. Instead, legal thinkers ought to
spend their time and talents pursuing the meaningful instrumentalist questions “
doing what is often somewhat grandly thought of as policy science.
But although this diagnosis of our situation is by now close to axiomatic in
some quarters, it also encounters a major embarrassment. The embarrassment is
this: although for generations lawyers and scholars have disavowed the classical
254 Steven D. Smith

conception of law, when it comes to actually doing law “ arguing cases, preparing
briefs, writing judicial opinions “ it seems that lawyers and judges and indeed even
legal scholars continue to talk and act as if the classical conception were still in force.
They talk and act, in other words, as if there were in fact a “brooding omnipresence
in the sky,” as Holmes (1917: 222) famously and mockingly described the notion,
and as if the purpose of legal argument were to discover and give effect to the
dictates of that brooding omnipresence.
I have argued for this description of our current situation at length elsewhere
(Smith 2004, 2006, 2007). For now, it may be enough to quote Lon Fuller™s obser-
vation about the quintessentially lawyerly practice of invoking, citing, and distin-
guishing precedents. Consistent with modern conceptions, Fuller accepted that
common law judicial decisions are in fact a special kind of judicial legislation. But
he acknowledged that judges typically do not talk or think of their decisions in this
way: they claim to be “merely applying” a law that in some sense exists before and
beyond their decisions (Fuller 1968: 45). And he noted that the way judges actually
use precedent seems to re¬‚ect this elusive conception:

[I]t is not too much to say that the judges are always ready to look behind the
words of a precedent to what the previous court was trying to say, or to what it
would have said if it could have foreseen the nature of the cases that were later
to arise, or if its perception of the relevant factors in the case had been more
acute. There is, then, a real sense in which the written words of the reported
decisions are merely the gateway to something lying behind them that may be
called, without any excess of poetic license, “unwritten law.” (Fuller 1968: 92,
emphasis added)

In short, for more than a century now, lawyers and judges and legal scholars have
insisted, in their theoretical moments, that contrary to what was once believed,
legal arguments and decisions are not attempting to ascertain and give effect to
some preexisting hidden or transcendent model. Meanwhile, in their practical
activities, lawyers and judges and legal scholars have behaved as if legal arguments
and decisions are attempting to do just that.

WHITHER JURISPRUDENCE?
The most signi¬cant thing that those engaged in jurisprudence might do at this
point, it seems to me, is to think in a sustained way about how to negotiate this
embarrassing divergence between theory and practice. In our contemporary situ-
ation, in short, the perennial question, What is law? pointedly raises the problem
of what to make of a practice that in its theoretical moments persistently insists
that it is not the sort of thing that in its practical operations it manifestly appears
to be.
Should we understand legal practice as a holdover from an older worldview “
one that no longer makes sense on modern assumptions and that we ought, if
we could actually raise ourselves to rationality, to phase out in favor of a more
straightforwardly instrumentalist approach? And if so, how to account for the
durability of the practice based on older, now discarded presuppositions? Perhaps
Jurisprudence: Beyond Extinction? 255

the force of tradition is simply more tenacious than the partisans of Enlightenment
have sometimes supposed? Or perhaps, as critics like Duncan Kennedy (1997: 192“
209) and Pierre Schlag (1997) have argued, the enterprise of law clings to older
forms and methods in bad faith and for self-serving reasons “ maybe to enhance
its aura of authority and impartiality?
Conversely, it might be that the classical assumptions still re¬‚ected in legal
practice are not as archaic as they seem. By now it seems widely accepted that
the secularization of the world that so many social theorists long regarded as
inevitable has not occurred, or at least has not occurred in anything like the way
it was supposed to. Widespread belief in more than natural realities now seems
destined to persist, even to ¬‚ourish, into the foreseeable future. So, perhaps it is
time to take seriously, or to rehabilitate or revise for modern use, the assumptions
that animated and continue to animate the traditional practices of law?
Maybe neither of these assessments is apt. Maybe our current impasse and
predicament will generate some new paradigm for understanding law “ something
that understands law neither as brooding omnipresence (or parasitic thereon) nor
as policy science (or the implementation thereof ).
In our current unsettled and unstable circumstances, prediction seems haz-
ardous. My modest assertion in this essay is that by contrast to questions about
internal and external positivism or some of the other subjects currently discussed
in jurisprudence journals, this sort of question is one with the intrinsic interest
and potential signi¬cance to have a claim on the attention of legal thinkers.

WORKS CITED

Blackstone, William. Commentaries on the Laws of England, vol. 1. 1765. Reprint, Chicago:
Univ. of Chicago Press, 1979.
Brague, Remi. The Law of God: The Philosophical History of an Idea. Trans. Lydia G. Cochrane.
Chicago: Univ. of Chicago Press, 2007.
Dworkin, Ronald. “Thirty Years On.” Harv. L. Rev. 115.6 (2002): 1655“87 (reviewing Jules
Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory
[New York: Oxford Univ. Press, 2001]).
Finnis, John. Natural Law and Nature Rights. Oxford: Clarendon Press, 1980.
Fuller, Lon L. Anatomy of the Law. New York: F. A. Praeger, 1968.
Gordon, Robert. “The Path of the Lawyer.” Harv. L. Rev. 110.5 (1997): 1013“18.

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