<< . .

( 36)

. . >>

Hart, H. L. A. The Concept of Law, 2d ed. Oxford: Clarendon Press, 1994.
Holmes, Oliver Wendell. The Path of the Law. Harv. L. Rev. 10.8 (1897): 457“78.
. Dissenting opinion in Southern Paci¬c Co. v. Jensen, 244 U.S. 205 (1917).
Kennedy, Duncan. A Critique of Adjudication (Fin de Si`cle). Cambridge, MA: Harvard
Univ. Press, 1997.
Llewellyn, Karl. The Bramble Bush. Dobbs Ferry, NY: Oceana, 1930.
MacIntyre, Alasdair. After Virtue, 2d ed. Notre Dame, IN: Notre Dame Univ. Press, 1985.
Patterson, Dennis. “Notes on the Methodology Debate in Contemporary Jurisprudence:
Why Sociologists Might be Interested.” In Law & Sociology. Ed. Michael Freeman. Oxford:
Oxford Univ. Press, 2006, 254“8.
Schlag, Pierre. “Law as the Continuation of God by Other Means.” Cal. L. Rev. 85.2 (1997):
Smith, Michael. The Moral Problem. Cambridge, MA: Blackwell, 1995.
256 Steven D. Smith

Smith, Steven D. “The (Always) Imminent Death of the Law.” U. San Diego L. Rev. 44.1
(2007): 47“67.
. Law™s Quandary. Cambridge, MA: Harvard Univ. Press, 2004.
. “Metaphysical Perplexity?” Catholic U. L. Rev. 55.3 (2006): 639“54.
Tamanaha, Brian Z. Law as a Means to an End. New York: Cambridge Univ. Press, 2006.
30 Law and Philosophy in the Hyperreal
pierre schlag

Ah the old questions, . . .
Ah, the old answers, . . .
How they love the old answers . . .
“ From Samuel Beckett, Endgame (A Play in One Act),
as modi¬ed by the author

Neither law nor philosophy are free. Both are beholden to and shaped by cultural
and rhetorical logics of which they remain almost entirely unaware. Inasmuch as
these logics construct both enterprises rather ¬‚atteringly as autonomous and in
charge of their own intellectual action, it is doubtful that the resulting comedy of
errors will end any time soon. As for legal studies (philosophical or otherwise) its
main modus operandi is to misapprehend the character of law in simplistic ways
that give rise to a set of pseudo-problems, which in turn enable legal thinkers to
go to outrageous lengths in rendering the original misprision complex, intricate,
multilayered, and seemingly sophisticated. This too makes it unlikely that the
comedy will end any time soon. At this point, one would want to speak to legal
philosophers out of both sides of one™s mouth. One would want to say: “Look, don™t
be so philosophical about it all: the law can™t take it. It cannot support or sustain
such intense philosophical attention. It™s just not that sort of thing.” At the same
time, one would also want to say, “Look, be a bit more thoroughgoing (rigorous?)
in your philosophical take: Think harder about whether your philosophical m.o.
is saying anything interesting about ˜law™ or whether instead it is using ˜l-a-w™
as a site for saying something about itself. Is your philosophy in fact attuned to
its ostensible object (˜law™) or are you merely imposing your own philosophical
aesthetics where they do not belong?”
One wants to say these things, but the prospects that the comedy will end anytime
soon are not auspicious. The reason is simple: the comedy is itself underwritten
by the same cultural and rhetorical logics described above. None of this, of course,
means that it is not worth trying to move on. Consider that for some, this comedy
might well be rather dark. It might not be comedy at all. Where to start?
Consider that some legal philosophers are profoundly concerned with the social
and linguistic contexts within which they frame their inquiries. Such philosophers
may be concerned that their thinking is shaped by ideological distortions. Or
| 257 |
258 Pierre Schlag

they may be concerned that the academic frames and protocols within which
they operate hinder rather than assist thought. Yet others are concerned that the
prison house of language compels them to run the same conceptual mazes over
and over again “ thinking they are saying something about the world when they
are saying something about language. Still others are concerned that language “ a
particular language or language in general “ prevents some ineffable insights from
being articulated. Some legal philosophers are concerned with any and all of these
things. And some legal philosophers are not.
Who are the latter philosophers? They are not unlike the vast majority of law
professors. They are thinkers who understand themselves to be the living end
of a great and highly elaborated tradition of established and coherent truths.
They understand themselves to be in possession of analytical techniques already
vindicated. If one understands one™s position in this way, then there really is not
much purchase in questioning the social and linguistic contexts within which one
frames one™s inquiries. The point of legal thought, rather, is to perfect the edi¬ce “
to weed out errors, to re¬ne conclusions, to bring ever greater rigor to bear on the
reproduction and maintenance of the edi¬ce.
How does one come by such a view of law? A hint may be found by looking
at the very beginning of Ronald Dworkin™s Law™s Empire, where Dworkin has
just announced that he is going to adopt “the internal perspective.” Dworkin
then writes: “This book . . . tries to grasp the argumentative character of our legal
practice by joining that practice and struggling with the issues of soundness and truth
participants face. We will study formal legal argument from the judge™s viewpoint . . .
because judicial argument about claims of law is a useful paradigm for exploring
the central, propositional aspect of legal practice (Dworkin 1986: 13“14).
Now, for most law professors and legal philosophers, this passage is utterly
unremarkable: of course, we are going to study law in terms of soundness and
truth. Of course, we will be exploring the central propositional aspect of law. Of
course, that™s what we™re going to do. What else would we do?
And yet imagine the perspective of the seasoned transactional lawyer or the
young public defender or the serious intellectual: How odd Dworkin™s perspective
must seem. Indeed, how can a book on law generally “ let alone one so grandly
entitled Law™s Empire “ presume that “issues of soundness and truth” focused on
“formal legal argument” as seen from “the judge™s viewpoint” can be a useful, let
alone an interesting, paradigm for the study of law? Just what kind of crimped
empire is this? Dworkin has an answer to this question and it appears in his next
few words: Dworkin, like many other law professors and legal philosophers believes
that the propositional aspect of legal practice is central to that practice. He takes
the implicit view that law™s principles, doctrines, holdings, and so forth, viewed as
propositions, are central to legal practice and to law itself.

This particular move “ the subordination of all that might be called law and legal
practice to its propositional content “ is, for those familiar with legal practice,
stunningly reductionist. Reductionism, of course, is not necessarily an objection
Law and Philosophy in the Hyperreal 259

in itself. More must be said. But, there are plenty of options. Hence, an objection
can turn to the importance of what has been left out, ignored, deformed. Or
an objection can turn to examine whether the reduction has intensi¬ed the right
aspect. Or an objection can turn to the question of whether the thing reduced (here,
law) is indeed the sort of thing that can be understood or appreciated by reduction.
Or an objection can be framed around the question of what the reduction effectively
does to the minds of thinkers who will operate within the ¬eld. (Often, not
surprisingly, it will reduce them.)
Legal thinkers and legal philosophers seldom think about such things. Instead,
like Dworkin, they proceed immediately and without argument to an examination
of the central propositional aspect of law. They take law™s representations of itself “
law™s idealized self-image as a realm of ordered propositions “ as directive of the path
of the law itself. Subordinated to this ostensibly rational discourse of propositions
are law™s other aspects “ its stratagems, maneuvers, leveraging, violence, coercion,
promises, performances, power, misrepresentations, and so forth. It is somehow
assumed that these things will be subject to the disciplining effect of the central
propositional aspect of law. But no reason is ever adduced as to why or how this
should be so. It is simply taken for granted that the central propositional aspect of
law rules.
This is not to say, of course, that there is no slippage. Occasionally, as most
legal thinkers will readily acknowledge, the propositional content of law fails at
this function. It turns out that in some discrete context, for whatever reason, the
central propositional aspect of law fails to govern the way the law is deployed. The
stratagems, maneuvers, leveraging, violence, coercion, promises, performances, or
power of the law are for some reason left ungoverned or unconstrained. There is a
breach between the law in the books and law in action. Or there is breach between
the law as it is and law™s ideals. There is, to put it in short hand, a gap between the
actual and the ideal.
When gaps between the actual and the ideal are detected, law professors and
legal philosophers typically step up to craft prescriptions and normative theo-
ries that will, if believed, adopted or enacted, bridge the gap. At various points,
philosophies or philosophical ¬gures are requisitioned to serve variously as accou-
trements, techniques, knowledges, intellectual sledgehammers, diagnostic devices,
truth adjudicators, thought-police monitors, barriers to entry, trash-talk talkers,
turf protection mercenaries, arms race supplements, and more. Many philosophies
cannot survive this sort of juridical conscription: The very attempt deforms them
beyond recognition. Other philosophies, by contrast, seem to ¬t right in. They are
the bad ones “ the ones that effortlessly join with the ruling jurisprudential conceit
that in law, the “central propositional content” is the important thing “ the thing
that rules.
One could easily think, looking at the vast resulting literature, that Ameri-
can legal scholarship is a vital enterprise highly critical in character “ constantly
attending to the failures and shortfalls of the law. But such a conclusion would be
premature. The reason is simple: At the same time that these discrete failures and
shortfalls are recognized, there is a tacit performative reaf¬rmation that the system
of law on the whole “works” pretty well. Indeed, the critical attention and activity
260 Pierre Schlag

is itself organized in terms and in service of law™s idealized image of itself. So even
in the midst of this ostensibly critical orientation, we have a tacit performative
reaf¬rmation of law™s essential integrity.
If one wanted to be intellectually serious about all this, one would have to
examine the character of judicial discourse “ that is, its propensity and potential
for intellectual pursuit and edi¬cation or lack thereof. The vast majority of legal
thinkers and legal philosophers bypass such an examination and simply join the
world of judicial discourse. It™s true that many legal theorists have a kind of
professional disdain for the verbiage of the courts (Lon Fuller™s tosh), but on
the whole the law professors and legal philosophers do not question the basic
conceptual and institutional apparatus “ the juridical view of law™s role, the high-
level distinctions, the advocacy rhetoric of the appellate decision. If one needs
evidence here, one need look only to the basic structure of the law review article: it
is a dressed up, more sophisticated version of the legal brief, the bench memo, the
appellate opinion. Even the conclusion “We should . . . or the courts should . . . ”
becomes an academic mimesis of the court™s more imperial “It is so ordered.”
When we turn to judicial discourse itself, we ¬nd that, on the whole, it is not intel-
lectually edifying. Of course, it is not supposed to be. The primary role of judges
is certainly not to be intellectually edifying. Indeed, the converse might be more
accurate. Whether as means or ends, their job description is to domesticate the
intractable, standardize heterogeneity, and contain deviance. As a job description
for judges, this may be serviceable (I take no position here). As a recipe for intel-
lectual pursuit, however, domestication, standardization, and containment seem
decidedly less appealing. Nonetheless, by virtue of the legal academy™s imitation
and adoption of the conceptual apparatus of judicial discourse, this domestica-
tion, standardization, and containment are effectively echoed in the discourse of
the legal academy (Schlag 2009b).
To dedicate legal studies to the central propositional aspect of law as viewed from
the judge™s perspective seems, from an intellectual standpoint, a serious category
mistake. Rather than a prelude to intellectual rigor (which it is surely not), such
a focus is an invitation to intellectual sterility. Nothing of any great value can be
created in the ¬rst instance (the conceptual apparatus does not allow it). And
the paradigm is quickly exhausted (the conceptual apparatus allows only so many
interesting moves).
None of this should surprise. The conceptual apparatus of judges is designed
and produced not to edify, but to perform the work of the state. When courts are
elaborating, reconciling, and rationalizing their doctrines, principles, and policies,
they are working on the state (state as organ and state as state of affairs). When
legal academics take on this judicial discourse as their own, they too are working
on the state “ and doing so in accordance with the state™s own instructions (e.g.,
the doctrines, principles, policies). The legal thinkers are elaborating the state™s
infrastructures and its modes of self-communication. Why or how this should be
an enterprise responsive to intellectual imperatives or inclinations is something
that legal thinkers and legal philosophers never seem to consider (let alone explain).
It does not occur to them. They just take it for granted. They have been trained
long and hard to take it for granted.
Law and Philosophy in the Hyperreal 261

A few decades ago it was possible to think that the advent of interdisciplinary
thought would alter the intellectual situation dramatically. And it does seem, at
least, that much recent interdisciplinarity has signi¬cantly enriched the discussion.
But it also seems that to prove itself in the law school world, interdisciplinary work
has (deliberately or not) subordinated itself to the ruling paradigm of judicial
discourse. Perhaps it does so at a certain remove “ at a more theoretically distanced
level. Or perhaps it refrains from being openly normative (while nonetheless
operating within an arena charged in conventional normative ways).
One result is that the broad juridical framework remains unchanged: Law and
legal theory by and large continue to be seen as regulative; the rule of law is
already largely actualized; high-level distinctions such as law and society, public
and private, are replicated. All of this is to say that much of this interdisciplinary
work has subordinated itself to the propositional content of law “ certainly its
propositional form “ and to dealing with issues of bridging the gap between the
ideal and the actual.
Once in a while, of course, legal thinkers are brought back from the heavens of
legal propositions to a more terrestrial habitat. They are reminded (and this is a
strong refrain in the law schools) that their work needs to be pragmatic, practical,
and persuasive. One might think that this would counsel or prompt a turn away
from the central propositional aspect of law “ toward what it is that lawyers actually
do, what clients actually experience, and so on and so forth “ all in a vaguely legal
realist way. But in point of fact, the most signi¬cant effect of this injunction to be
pragmatic, practical, and persuasive is “ what? It is to produce propositions that are
pragmatic, practical, and persuasive. (One never leaves the plane of propositions).
This is the Monty Python moment, where the prophet yells out to the assembled
multitudes: “You™ve all got to think for yourselves.” And they respond: “We™ve all
got to think for ourselves.”

If one wanted to ascertain to what degree legal thought is intellectually serious, one
would have to pay greater attention to the framing of the gap between the actual
and the ideal (and the conceptions of both). Here we have a number of critiques
worth mentioning. They are old critiques and yet surprisingly still pertinent.
One of them is a speci¬c strain of antiformalism developed in the lineage of
Hale, Llewellyn, and Cover. Robert Hale (1923), following hard on the heels of
Hohfeld, redescribed law in terms of a distribution of the implements of coercion
among all economic and social actors “ both public and private. Llewellyn (1935),
in his famous article “What Is Wrong with So-Called Legal Education,” wrote that
law should be considered “a doing.” And in a foreshadowing of Robert Cover,
Llewellyn (1935) argued that law school should engage in “wolf training.” As for
Robert Cover (1986) himself, he argued famously that law “ its institutional as
well as its conceptual apparatus “ is shaped and marked by the violence it needs to
occasion. Hale, Llewellyn, and Cover “ these thinkers understood that one cannot
understand the import and character of law by severing, isolating, and interpreting
its propositional content. Such a severance and isolation is a misprision. And it is
262 Pierre Schlag

such a fundamental, such a basic misprision, that it is quite simply a waste of time
to address works or arguments that depend upon such a misprision.
A second critique, less familiar in the legal academy, issues from Marx, Nietzsche,
and Derrida. Each in his own idiom suggests that the ideal (i.e., the ideal of law)
never quite escapes the structures of the actual. Instead, the ideal is but an idealized
projection of the actual. That is to say, the ideal is not some sort of independently
de¬ned normative state of affairs. On the contrary, it bears the limitations, the
markings, the birth pangs (social, economic, cultural, and cognitive) of the actual.
For normative thinkers who are singularly focused on the discourse of judges, this
general point has rather negative implications. The normative ideal is never free: it
is always anticipated and limited by the structures and con¬gurations of the actual
(Schlag, 1994).
If we put the ¬rst critique together with the second, we come to recognize that
the actual is already marked by its own idealized self-representations while the
ideal is itself already invested with the structures of the actual. That is to say “ and
this would be the third critique “ that the actual already furnishes its own ideal
and the ideal already contains its own actual. The distinction is false “ and in its
falsity, it masks (and Marx at least hinted at this) its own powerlessness, while
simultaneously promising transcendence (Schlag 2009a).
So much for the critiques. Put the critical orientation aside for a moment and
consider a different question. Could this all be functional in an odd sort of way?
What we have here are law professors and legal philosophers trying to repair
perceived breaches between the actual and the ideal through the deployment of
a discourse modeled on that of judges. Occasionally, the legal academics bring
in some extradisciplinary input to aid in the effort. Mostly, of course, this work
is subordinated to the imperatives of the judicial discourse, its institutional and
conceptual apparatus. To repeat: Can it be that this is all functional in some way?
Of course it can, once one understands that the medium is the message. The
argument, the processing, the formal style, the pretense to knowledge, the evalua-
tion of the argument, are all rehearsed and reaf¬rmed in these scholarly attempts
to bridge the actual and the ideal. The identity of the prescriptions offered by legal
thinkers falls by the wayside, of course, but those are no longer the point. Rather the
point is the rehearsal and maintenance of the discourse. At the institutional level,
legal thought is no more about creating or actualizing a normatively appealing
prescription than moot court is about deciding which litigant should win.
There is a bit of unwelcome irony here for those legal thinkers who are sincerely
committed to the prescriptions they offer. The irony is that, despite their passion
and their commitment, the dominant discourse treats their prescriptions merely
as an occasion to rehearse the discourse: Is the argument right? Does the argument
follow? Is the methodology legitimate? Has all relevant material been considered?
Is the presentation rigorous? (And so on.) Ethics has been reduced to technique.
Even the ostensible gap between the actual and the ideal has lost purchase and
integrity. In legal thought, the af¬rmation of a gap between the actual and the ideal
has become routinized as a discursive premise, as an opening gambit in highly
stylized rightness disputes. It™s all a performance where virtually no one thinks the
arguments matter to the realization of values or objectives. This is not to say that
Law and Philosophy in the Hyperreal 263

the arguments do not matter. They do, of course, but what they matter to is the
rightness dispute. And what is the point of the rightness dispute, one might ask?
To determine whether the arguments are correct, whether they follow (and so on).
And what is the point of that? To make rightness determinations, of course. And
what is the point of that? To have rightness disputes, of course. Or in short, the
point of rightness disputes is rightness disputes.
It is in this way that legal thought folds in on itself. Not so long ago, one might
reasonably have believed that rightness disputes were designed and conducted to
ascertain the value of the thought or the thinker. Now, however, we seem to be
on the other side of an inversion. Now, both the thought and the thinker serve as
occasions and vehicles for the prosecution and adjudication of rightness disputes.
Combined with a furious focus on productivity and the ferocious pursuit of
self-promotion, the rightness orientation leads legal thought to fold in on itself.
This fold is perhaps most easily exempli¬ed in the rankings mania. Once it was
thought that the rankings were re¬‚ective, or at least supposed to be re¬‚ective, of
excellence (or the lack thereof). The rankings could be praised or criticized for
their success or failure in evaluating excellence. The rankings served as a proxy
for excellence. But now rankings mania has folded in on itself. What matters now
is not the logic of the proxy, but the logic of self-reference. The whole point of
rankings is to rank “ just as the whole point of self-promotion is to self-promote
and the whole point of publishing is to publish. There is no signi¬cant external
end. Not long ago, this was the kind of outr´ claim one might expect of a French
philosopher (Baudrillard 1990). Today, it™s just a banal observation.
What then can we say of legal thought?
It is what it is. If this seems unduly grim, realize that this ubiquitous phrase, “it
is what it is” has a wonderfully ambivalent and ironic cast. On the one hand, it
implies resignation, as in “it is what it is and there™s not much to be done about it.”
But the phrase also implies a certain mature re¬‚ection as in, “it is what it is and so
better to focus your energies elsewhere.”

Be intellectually serious. Drop the received scholarly agendas. Forget re¬‚ective
equilibrium. Ditch the ideal observer. Throw your copy of “The Concept of Law”
into a lake and give “Law™s Empire” to a homeless person. Also stop worrying
about helping the courts with their various legitimation needs. They don™t need
you. Really. They™ll be just ¬ne.
Instead, try to ¬nd the best description you can of whatever might be called the
postmodern condition. Maybe Postman or Zengotita or Baudrillard or Lyotard, or
whoever. It doesn™t really matter. Rather, what matters is that you ¬nd some salient
description of our contemporary intellectual-cultural condition: A description
that seems credible and convincing. Let the condition become your mind and
try to think about law from within that condition. Think sociologically. Think
normatively if you want “ but do it from within that condition. Try to leave the
academic formalizations behind. Avoid rightness disputes. If necessary, leave the
room. Abjure and disdain scholasticism in all its forms. Avoid tinkering. If you
264 Pierre Schlag

tinker anyway, don™t call it philosophy. If you do call your tinkering philosophy,
try not to publish it. Try to think from within the as yet undertheorized here and
now. Give it a form. Give law a form. Realize that there is no glory, no virtue, and
no challenge in theorizing from the exceedingly well-rehearsed formal frames of
jurisprudence and legal philosophy. It™s been done. And we do not have a lot to
show for it. Instead try to rethink law from a position that is at least plausibly
our own.
Maybe it™ll work for you and maybe it won™t. If it does work for you, it™s as close
as you (and we) are likely to come to doing serious philosophy. Failing that, you
can retrieve the soggy book you threw into the lake. But that should be your last,
not your ¬rst option. Oh hell, it shouldn™t be an option at all: Leave the book alone.
Just walk away.


Baudrillard, Jean. La transparence du mal: Essai sur les ph´nom`nes extrˆmes. Paris: Galilee,
e e e
Cover, Robert. “Violence and the Word.” Yale L.J. 95.8 (1986): 1601“29.
Dworkin, Ronald. Law™s Empire. Cambridge, MA: Harvard Univ. Press, 1986.
Hale, Robert L. “Coercion and Distribution in a Supposedly Noncoercive State.” Pol. Sci.
Q. 38.3 (1923): 470“94.
Llewellyn, Karl N. “On What is Wrong with So-Called Legal Education.” Colum. L. Rev.
35.5 (1935): 651“78.
Schlag, Pierre. “Values,” 6 Yale J. Law & Hum. 219 (1994).
. “The De-Differentiation Problem,” Continental Phil. Rev. Forthcoming 2009a.
Available at id=975810.
. “Spam Jurisprudence, Air Law and the Rank Anxiety of Nothing Happening
(A Report on the State of the Art).” Georgetown L. J. Forthcoming 2009b.
31 Philosophy? In American Law?
philippe nonet

1. Perhaps indeed “philosophy” consists of “theories,” the words of which matter
less than their “life-in-action,” a life they gain insofar as they “serve men™s needs.”
The chief questions regarding “philosophies-in-action” are then: “What needs they
serve “ and whose.”
Talk of such “philosophies” is at bottom nothing but a piece of journalism.
Perhaps we should call it gossip. It is now abundant at law, ad nauseam, in law
practice, where it may well have become indispensable, as well as in legal “edu-
cation,” where it often peddles itself under the nearly transparent disguise of the
so-called “sciences of man.”
To be more precise, one would have to say, not that this vulgarity has found its
place “in law,” but rather that law has become immersed in it, having now lost
almost all traces of the splendid isolation with which legal institutions were once
able to maintain a certain aura of nobility. Vulgarity belongs of necessity to the
vulgum pecus.
Needless to say, no self-respecting mind will occupy itself with such matters. That
is a straightforward and quite easy rule of intellectual hygiene. Let “philosophies-

<< . .

( 36)

. . >>

Copyright Design by: Sunlight webdesign