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in-action” be the business of newspaper readers and other Llewellyns of this world.
We shall ¬nd our “philosophy” somewhere else. More questionable than ever is
now the question whether any honorable mind can still destine itself to law.
But perhaps we should not let the sense of the phrase “philosophy in American
law” be determined by the way Llewellyn used it. What else might it say?
2. Perhaps “philosophy” designates the sort of things that are done and taught
in university and college “departments” of the same name. Is there that sort of
things “in American law”? What sort of things is that in the ¬rst place?
“Philosophy” can concern itself with an extraordinarily wide range of subject
matters, but it always, or almost always, distinguishes itself by the peculiar way
it approaches whatever it approaches. Its core business is the production and
destruction of arguments. It argues and counter-argues, it contends and disputes; it
proposes and objects; it analyzes, distinguishes, concedes, evades, uncovers hidden
premises and contradictions, and so on. It always has found or will ¬nd a ground,
i.e., an argument, why some argument fails.
Precisely on account of its argumentative virtuosity, “philosophy” has earned
for itself other, and rather less ¬‚attering names. “Sophistry” is the most ancient.
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266 Philippe Nonet

Almost as old, but now associated with medieval theology, is “scholasticism.”
Kant found “dialectics” a threat to the moral law. Somewhere Hegel calls “reason-
ing” “die Rabulisterei des Verstandes.” Heidegger simply says that “philosophizing”
endangers thought.
Let us put it our own way: “philosophy” is “lawyering.” And with this name,
we have also found the answer to our question. Lawyering thrives at law. In that
sense, “philosophy” may most properly be said to be “in law,” for law is the original
ground out of which lawyering grows. Lawyering constitutes a, if not the, distinctive
disease of law, that is, a disease that law nurtures simply by virtue of being law,
and thus posing ever anew the problem of the “application” of rules to singular
cases. Casuistry we call it. The lawyer™s expertise lies in his readiness to argue for
or against anything in any case, unrestrained by considerations of truth, or justice,
or any other kind of propriety. Shameless!
In principle, the law should be able to combat its own perversion, but it cannot
do so without entering into a virtual war with itself. It used to do so, e.g., by
requiring of judges the shortest opinions, straight on point, argumentless; by
forbidding lawyers to “spur litigation”; generally by making the service of lawyers
inaccessible. American law, and more generally Western European law, now appear
to have little or no inclination to do any of that. Can one even dream today of a
day when The Clouds and The Provincial Letters would become texts of the highest
legal authority?
Meanwhile, we may have erred in determining “philosophy” on the basis of what
is done and taught in academic departments under that name. Perhaps lawyering
is a perversion of philosophy proper, which perversion may or may not be native to
the latter. Perhaps the “lawyering” in “philosophy” is a corruption that philosophy
suffers when it is appropriated by academic industry.
What then is philosophy proper?
3. Philosophy proper is: Metaphysic.
The name is meant here to designate the kind of thinking that has determined
the character of Western mankind since Plato and Aristotle. The distinctive trait of
Western thought is that it strives to determine the ground of what is, in the sense
of das Seiende (l™´ tant, t¼ Àn), not das Sein (l™ˆ tre, t¼ e«nai). [Please note in passing
e e
that the distinction between das Seiende and das Sein cannot be said or thought in
English, which is grammatically incapable of differentiating the participle from the
gerund. We shall shortly have occasion to return to this and other limitations of our
language as a possible host of thought.] The ultimate principle of metaphysic is the
principium grande that was ¬rst articulated by Leibniz, and is now widely known as
the principle of suf¬cient reason. It holds, in its abbreviated form, that nihil est sine
ratione, nothing is without reason, or, to put it positively: All being, in the sense of
das Seiende, is grounded in reason. Leibniz™s is the principle of principles, ground
of the nearly irresistible authority with which we ask of all things the question
“Why?”
In modern times, namely since the founding of modern natural science in
Descartes, metaphysic takes the form of technique, which represents itself as the
unconditional will of man to become “lord and possessor of nature.” The essence
of technique is nothing “technical” (just as the essence of law is nothing “legal,”
Philosophy? In American Law? 267

the essence of morality nothing “moral,” etc.). Technique asserts a metaphysical
stance: it de¬nes the essence of being, in the sense of das Seiende; it determines
the position of man amidst being, again in the sense of das Seiende; it sets the
standard of truth by which man™s relation to being, in the sense of das Seiende, is
to be governed. Under the sway of technique, all being, in the sense of das Seiende,
is reduced in principle to the position of expendable means, available for use at
will by man; man himself is turned into an expendable means to uncover and use
the expendable means of which being, in the sense of das Seiende, consists; the
measure of truth becomes the “effectiveness” with which human thinking uncovers
“effective” means. It should be apparent that the concept of “means” rests upon
the principle of causality, which in turn follows from the Leibnizian principle of
suf¬cient reason. Technique is metaphysic.
If philosophy is metaphysic, and metaphysic today is technique, then we may
return to our question and ask: Is there technique in law? Of course there is,
although here again, to be more precise, one would have to say not that technique is
“in law,” but rather that law, like all other domains of modern existence, lies entirely
under the sway of technique. In accordance with the technical transformation of
all beings into means, law itself is reconstructed as “policy,” and legal thinking
turns into the calculation of “values.” The law as a whole is thus subordinated to
a higher “law” “ we may call it, as does metaphysic, the principium rationis “ the
being (this time in the sense of das Sein) and the imperiousness of which law itself
cannot conceive or even name. [Let us note again here how thinking is impaired by
the poverty of the English language, which distinguishes itself from other Western
languages by having only one word for “law,” namely “law.” By contrast, German
has easily found a ¬tting word for the “law” of technique; instead of Gesetz, it calls
it Gestell, substituting the root verb stellen for the setzen of Gesetz.]
In consequence of this incapacity, American law fails entirely to see how the sway
of technique threatens to bring about a near extinction of freedom on earth. The
servitude into which the modern economy drives its “human resources” makes all
earlier forms of serfdom “ including the “slavery” we purport to have abolished “
look benign.
4. One last possibility must still be considered: “Philosophy” might well some
day put into question its commitment to metaphysic, and attempt slowly, painfully,
laboriously to rethink essential matters free from its inherited apparatus of concepts
and modes of “reasoning” (free from “logic” above all, which does the most extreme
violence to language). “Philosophy” would then remain the name for a kind of
thinking that devotes itself to what is most worthy of thought: What “is” being
in the sense of das Sein? What “are” time and space? What is language? What is
poetry? What is it to think? Who is man? What are art and technique? What is
freedom? And so on. We know in advance that all such questions are incapable of
ever being “answered.” But that is precisely why they are always in need of being
thought afresh.
We should not expect such a transformation to happen in anything like present
day academic “philosophy,” or indeed in any other part of academic institutions,
which are all wedded to the pursuit of technique. Of course miracles happen even
there: Heidegger did happen in a German university last century.
268 Philippe Nonet

Might such thinking ¬nd a home “in law,” if not in a law school, perhaps
somewhere else “in” the profession? The answer must be a de¬nite No. Nothing
at all in the intellectual make-up of a lawyer prepares him to pose any essential
question, not even the question regarding the essence of law. On the contrary, in
order to conduct his business, he must at all times assume that he already knows
well enough all there is to be known about what is law. Indeed he is a master at
“¬nding the law” in every case that comes on his desk. Were he seriously to question
the essence of law, all his practice would ipso facto come to a grinding halt. That
is presumably why American “jurisprudence” has never added up to anything of
substance: Only a few slogans “ “the standpoint of the bad man,” “realism,” “the
right answer thesis” “ the manifest falseness of which condemns them to oblivion,
even if at ¬rst they, like scandal, succeed in provoking attention.
The same, mutatis mutandis, must be said of every professional or intellectual
specialty, “discipline” one hears in certain circles. Every specialty, even the discipline
of “philosophy,” disables its specialist from asking essential questions. The only
quali¬cation that quali¬es one for essential thinking is: Being human. Thinking
proper is a prerogative of man as man, namely a preeminent way of being human,
that is, of enduring the fullness of experience that offers itself to man as his
distinctive possibility.
In principle, nothing is to prevent a lawyer, or any other specialist, from letting
himself be struck by the necessity of thought, throwing off the mantle and whig,
and reassuming the plenitude of his humanity. But in so turning to thought, he
will move out of law, even if only part of the time and part of the way. The move is
in fact nothing easy to accomplish. But no thoughtful man ever lets his profession
entirely extinguish his own humanity.
5. That a lawyer can move out of law and turn himself to thought, has been
documented in at least two notorious cases: Descartes and Leibniz. But a serious
obstacle presents itself in the case of American lawyers. It arises from the fact that
American law speaks English, and only English, a language that is, and has so
far always been, remarkably unconducive to thought. Not a single great thinker
has emerged out of it. In fact only two European languages have ever favored the
growth of a tradition of thought: Homer™s Greek and Luther™s German. How many
American lawyers would one ¬nd today who can read them both?
Translations have now spread the illusion that Greek and German thought is
accessible in English. They are in fact incompetent, all of them, without exception,
not so much because of limitations of the translators, as because the poverty of
English renders it constitutionally incapable of capturing what the Greek and
German texts say.
In two bracketed notes above, I have given examples of the obstacles to thought
that one encounters in English: English is incapable of differentiating being in the
sense of das Sein from being in the sense of das Seiende; English is incapable of
naming the Gestell that sways above all “law” in the age of technique. The two
examples are bound together, since das Gestell is a name for das Sein des Seienden
as it manifests itself under the sway of technique, in die Seinsverlassenheit des
Seienden. Whoever fails to grasp the difference between das Sein and das Seiende,
is incapable of understanding das Gestell. He has put virtually all Heidegger out
Philosophy? In American Law? 269

of his reach (not to mention all thought prior to Heidegger), and thereby all the
world in which he exists. All attempts by English translations to circumvent these
dif¬culties lead only to misunderstandings, which are not worthy of being reported
here. Let them, the translations as well as the misunderstandings, fall into oblivion.
On the same ground, I shall refrain from adding to the examples given above.
It would take a couple of volumes for me to collect all those I know. What a waste
that would be! Let us instead read a few pages of Kant.
part seven. commentaries
32 Optimism and Pessimism in American
Legal Philosophy
carlos a. ball


Pity the legal philosopher. Those us of who are academics must to some extent
justify our professional existence, insulated as we are from the type of market
forces and ongoing performance reviews that most employees are subject to. For
academics who help to train professionals “ as law professors do “ that justi¬cation
is made somewhat easier by the fact that our students will turn (however indirectly
and imperfectly) the doctrinal knowledge that we impart to them in the classroom
into doctrinal practices in the outside world. Students of property or of tort
law, for example, will to some extent rely on the concepts learned and skills
acquired in the classroom in making or interpreting the law as participants in the
legal system. Similarly, property or tort scholars can through their writings seek
(however indirectly and imperfectly) to in¬‚uence legal decision makers on the
future direction of the law.
But what of jurisprudes? How do they justify their existence? Obviously, there
is no practice of jurisprudence as such. There are no causes of action, no claims,
no points of legal doctrine that can be passed on from teacher to student. It is
possible (at least in theory) that students turned legal actors will bring to bear
on their practices concepts related, for example, to pragmatism or natural law
or consequentialism that they may have picked up in a jurisprudence class, but
the link between knowledge and practice seems considerably more attenuated in
jurisprudence than in just about any other course in the law school curriculum.
Jurisprudes, like other legal academics, can always seek to in¬‚uence legal decision
makers on the future direction of the law through their scholarship, but it would
seem that neither judges nor legislators bother to grapple directly with issues of
theory or philosophy. For instance, even the judges who may come closest to the
Dworkinian ideal of the Herculean judge are unlikely to read “ or care about “
Dworkin™s (1986: 239) understanding of what makes a judge Herculean to begin
with. Indeed, some judges have complained that much of what is published in law
reviews these days is useless to them as legal decision makers, in part because there is
too much attention paid to theory. The U.S. Court of Appeals Judge Harry Edwards
(2002: 2001), for example, after commenting on how legal scholarship, as of late,
has been taken over by theorists, as well as by those interested in interdisciplinary
pursuits, puts it simply when he notes that “[t]he most serious concern that I have
with legal scholarship is that too much of it is useless.” It seems reasonable to
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274 Carlos A. Ball

assume that the more theoretical or philosophical the scholarly writing, the less
likely it is that legal actors will perceive that scholarship to be useful or relevant to
their practices.
It appears, then, that legal philosophers are at a considerable disadvantage
(at least as compared to other legal academics) in justifying their professional
existence. Some may think that this state of affairs might lead jurisprudes to feel
hopeless or futile. If this volume is any indication, however, that is by no means
the case. Indeed, if we assume that the essays contained in this book represent a
fair cross-section of the contemporary state of commentary on the contemporary
state of philosophy in American law, jurisprudes (for the most part “ there are
some exceptions in this collection) are a hopeful bunch.
This optimism is in many ways consistent with the Llewellyn essay whose name
provides the title to this book. After skipping and hopping through a century
and a half of American jurisprudence in a handful of pages, Llewellyn ended his
essay on a rather optimistic note about the state of legal philosophy in the early
1930s. Although he acknowledged that his preferred “sociological jurisprudence”
had found “little echo among judges,” there was nonetheless reason for hope given
what Llewellyn (1934: 212) took to be a correspondence between the ascendant
jurisprudence of the realists and “the actual behavior of the better bar.” In addition,
Llewellyn found much comfort in the fact that the realists, unlike their jurispru-
dential predecessors, were committed to making judgments about policies in ways
that are “backed by facts.”
Most of the essays in this book re¬‚ect a similar degree of optimism, although
the reasons for their sanguinity are quite different from those found in Llewellyn™s
essay. If indeed, as many have suggested, we are all realists now, then it is dif¬-
cult to get much frisson from jurisprudential arguments that, in effect, insist on
the need to pay attention to conditions on the ground. Jurisprudes in the early
twenty-¬rst century, in other words, must get their kicks elsewhere. And many of
the contributors to this volume do precisely that, with Backer ¬nding hope in per-
fectionism, Solum in virtue jurisprudence, Goodrich and Mootz in the discipline
of rhetoric, Sarat and Clarke in political philosophy, Thurschwell in continental
philosophy, Adler in moral philosophy, Bix in analytical philosophy, Broekman
in semiotics, Schroeder and Carlson in psychoanalytical jurisprudence, Pether in
theories of discourse and language, West in robust understandings of conceptions
of the good, Burns in the multiplicity of philosophical methods and styles, Wright
in the ongoing relevance of legal philosophy, Michelman in the correct ordering of
law and morality, Patterson in an understanding of law as a shared practice, Garver
in the relational justi¬cations for privileging freedom of thought over freedom of
action, Hayman and Levit in the power of narrative, Taylor in the power of cre-
ativity, Scallen in the importance of contexts and experiences, Balkin in the ability
of the law to restrain power, and Fisher in the ability of the law to quell impulses
for violence and revenge.
There are, to be sure, common themes that emanate from these essays. For
instance, several of the contributions ¬nd their hope in the notion of mediation.
Backer, for example, contends that the law can play an important and useful role
in mediating the tension between faith and reason. For their part, Goodrich and
Optimism and Pessimism in American Legal Philosophy 275

Mootz (in their respective essays) are sanguine about the ability of the discipline of
rhetoric to address (and in many ways overcome) the seemingly inevitable tension
between law and philosophy. Solum is con¬dent that a jurisprudence of virtue
can help solve the seemingly intrinsic impasse between a jurisprudence of rights
and a jurisprudence of consequences. In a similar vein, Sarat and Clarke contend
that principles of political philosophy can, if not bridge the gap between law and
sovereignty, at least productively illuminate the boundaries between the two.
For the most part, however, the optimistic essays in this volume, which together
constitute two-thirds of the book, are a remarkably diverse group of writings that
have two main characteristics in common: ¬rst, and not surprisingly given the
focus of the book as re¬‚ected in its title, they all in some way address a topic related
to (or arising from) the intersection of law and philosophy; second, they are all
(admittedly to different degrees) optimistic about the ability of particular strains
of philosophy (or particular theoretical emphases or understandings) to be useful
or helpful or relevant to our thinking about the law.
This is not to suggest, of course, that all of these commentators are satis¬ed
with the state of legal philosophy as it currently exists. In fact, many of the essays
already noted contend that jurisprudence as an area of academic endeavor should
pay more attention to disciplines or ¬elds or theories or ideas that it has (to its
peril) so far largely ignored. But these types of arguments are hardly surprising
and do not diminish from the sense of hope that emanates from most of the essays
in this book. We academics are a notoriously dissatis¬ed group with the world “
including that of ideas “ as it is. No scholar has ever built a reputation by exclusively
defending the intellectual status quo. There is always room for improvement, and
for jurisprudes that often entails paying greater attention to consequential or moral
or analytical or deconstructive or naturalist or pragmatist or antifoundational “
the list is almost endless “ philosophy.
Indeed, several of the essays in this book can be thought of as standing for the
straightforward proposition: we need more of X in American legal philosophy. I am
thinking in particular of the essays by Thurschwell (continental philosophy), Adler
(moral philosophy), Bix (analytical philosophy), Broekman (semiotics), Schroeder
and Carlson (psychoanalytical jurisprudence), Pether (theories of discourse and
language), and West (conceptions of the good). All of these authors express a
dissatisfaction with the present state of philosophy in the legal academy because
of what it lacks. They also, however, argue (or at least suggest) (1) that the gaps
in question can be addressed and (2) that doing so would be bene¬cial in either
providing a better understanding of the types of issues that our society seeks to
address through the law or a clearer conception of what the law is (or what it
should be). In my estimation, therefore, the “we need more of X in American legal
philosophy” essays are ultimately jurisprudentially optimistic.
I also do not want to suggest, in noting the hopefulness that emanates from
many of the essays contained in this volume, that the optimistic contributions are
unbridled in their sanguinity. Several of the essays remind us that there are plenty
of reasons to worry, whether they be the (perceived) dangers of foundationalism, or
the troublesome legitimizing effects of the law, or even man™s inhumanity to man.
Nonetheless, it seems to me that in many of the essays that express concerns about
276 Carlos A. Ball

the current state of affairs (intellectual or otherwise), a sense of hope ultimately
prevails over a sense of doom.
For example, Hayman and Levit, while noting the limits of the move toward
empiricism in legal methodology engendered by the realists, are nonetheless hope-
ful about the role that narrative can play as a tool of persuasion within the law.
Hayman™s and Levit™s faith in the power of narrative is so strong that it leads them
to posit that it might even allow (gasp!) the reaching of a form of truth, albeit
one that is contingent and culturally bound. In a similar vein, Scallen, while cri-
tiquing foundationalism and the search for the truth in American legal philosophy,
nonetheless urges us to focus on contexts and experiences in order to search for
a truth that exists on the ground. For his part, Balkin argues that the law can be
used not only problematically to mystify and legitimate unjust exercises of power
(as critical legal theorists have argued for a long time), but that it can also be
deployed in helpful ways to restrain such power (a point that critical theorists have
failed to acknowledge). And Fisher, in elaborating on Paul Ricoeur™s understand-
ing of justice, describes a Hobbesian world in which the impulse for violence and
revenge is omnipresent but then suggests that law (and morality) represent our
only meaningful hope in quelling such destructive impulses.
If jurisprudence were a democracy, then, and the question of whether there is
reason to be optimistic about the contemporary state of American legal philoso-
phy “ or the potential state of American legal philosophy with some refocusing
or tweaking of philosophical priorities “ were put to a vote among the contribu-
tors to this volume, it would seem that the optimists would win the election by a
comfortable margin. There is, however, some dissent; a handful of the essays, it is
fair to say, are rather pessimistic about the contemporary state of American legal
philosophy. It would seem that Nonet™s essay is the least hopeful of the bunch. For
Nonet, nothing short of the complete abandonment of both law and philosophy
as academic disciplines will help us in thinking productively about the essence
of law.
Smith and Schlag do not go as far as Nonet; they do, however, question much
of the legal and jurisprudential scholarship that has been written in the past few
decades. Smith contends that the issues that legal philosophers have been grappling
over for generations (e.g., what is the law and what is the relationship between
law and morality) are of little interest to others. For his part, Schlag questions
what he takes to be the assumption of most legal scholars that there is a central,
propositional aspect of legal practice that can serve as an aspirational benchmark.
He also urges academics to cease trying (hopelessly) to make actual law correspond
to ideal law.
Clearly, Smith and Schlag are arguing more than simply “we need more of
X in American legal philosophy.” Their essays call less for tweaking and more
for paradigm shifting. But it seems to me that there is a silver lining to their
otherwise strongly critical assessments of the contemporary state of American
legal philosophy in that their essays suggest a way forward: Smith argues that legal
philosophers, after they abandon their useless and decades-old debates, grapple
with why a traditional conception of the law (which conceives of it as a brooding
omnipresence) persists in legal practice even though it has been so thoroughly
questioned in legal theory, and Schlag urges us to ¬nd peace and comfort, as well
Optimism and Pessimism in American Legal Philosophy 277

as additional time for other intellectual pursuits, in accepting the fact that there is
no such thing as imperfections in the law “ or, as he puts it, the law is what it is.
There are other pessimistic voices in this collection. Alexander and Sherwin™s
essay, for example, argues that philosophy is either irrelevant or unhelpful to
legal actors. And there are several essays that express dismay over the resilience
of powerful and negative ideas or concepts in American legal philosophy. For
Allen, the source of the concern is the stubborn pervasiveness of maternalism
and paternalism; for Caudill, it is the perseverance of natural law; for Winter,
it is the entrenchment of formalism and universalism; and for Tamanaha, it is
the universalism of instrumentalism. Although not always explicit on this point,
these four essays leave us with the distinct impression that these unfortunate
philosophical in¬‚uences (from the authors™ perspective) are unfortunately here
to stay.
The pessimistic essays, however, constitute a minority. It seems to me that the
philosophical optimism contained in this volume clearly outweighs the jurispru-
dential despair that can also be found herein.
The question of whether such optimism is justi¬ed requires considerable more
analysis than I can provide in this short commentary. It is worth noting, however,
that, if this collection is any indication, there is a vibrancy and diversity to the
contemporary state of commentary on philosophy in American law that was lacking
in the historical periods discussed by Llewellyn in his essay. Although Llewellyn™s
account is clearly simpli¬ed, there is some plausibility to the story that he tells of
how natural law, the predominant jurisprudential in¬‚uence in the early days of
the republic, was later replaced by positivism, which was, in turn, challenged by
realism in Llewellyn™s time.
As this book should make clear, the multiplicity of views emanating from Amer-
ican legal philosophy today makes it dif¬cult to divide the ¬eld into a handful of
self-contained categories as it still seemed possible to do in Llewellyn™s day. Indeed,
the diversity of contemporary theory-based perspectives in American law becomes
even greater once we expand beyond traditional understandings of what consti-
tutes the ¬eld of jurisprudence to include ideas and insights from scholars in areas
that are largely absent from this book, such as feminist theory, critical race theory,
and queer theory. The broad spectrum of perspectives and approaches in American
legal philosophy in the early part of the twenty-¬rst century leads to scholarship
that is, I believe, considerably more vibrant and rich than (what in hindsight seem
to be) the somewhat picayune disagreements, say, between Llewellyn and Pound
in the early part of the twentieth century.
To return, then, to the question with which this commentary began, it seems
to me that the jury is still out on the question of whether jurisprudes can justify
their professional existence through their in¬‚uence on those who do law. In fact, if
Llewellyn were alive today, he would likely be disappointed with the contemporary

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