state of American legal philosophy because, it can be argued, it has little corre-
spondence with the practice (or the making) of law. But if we grant ourselves the
right to assess scholarship not through its direct impact on legal actors but through
the quality and vibrancy of the ideas and debates expressed therein, it seems to me
that this volume of essays should leave us relatively pleased with the contemporary
state of American legal philosophy.
278 Carlos A. Ball
Dworkin, Ronald, Lawâ™s Empire. Cambridge, MA: Belknap Press, 1986.
Edwards, Harry T., âReď¬‚ections (on Law Review, Legal Education, Law Practice, and My
Alma Mater).â Mich. L. Rev., 100.8 (2002): 1999â“2007.
Llewellyn, Karl N. âOn Philosophy in American Law.â U. Pa. L. Rev. 82.3 (1934): 205â“12.
33 This Jurisprudential Moment
5. The âtrueâ world â“ an idea which is no longer good for anything, not even
obligating â“ an idea which has become useless and superď¬‚uous â“ consequently, a
refuted idea: let us abolish it!
(Bright day; breakfast; return of bon sens and cheerfulness; Platoâ™s embarrassed
blush; pandemonium of all free spirits.) (Nietzsche 1968: 485â“6)
Jay Mootzâ™s aim for this project, according to an early description provided to the
contributors, is to âcapture the â˜momentâ™ in legal philosophy.â The thirty-three
essays responding to Mootzâ™s call to âa diverse group of peopleâ for papers that
âmimic Llewellynâ™s audacity in describing the relationship between philosophy
and law in ten pages in a period of great ferment,â present the commentator
with a difď¬cult task. Although the actual contributors are on the whole largely
afď¬liated with law schools, their calls on and relations to philosophy run the
gamut in terms of tone and involvement. Yet despite their differences and their
individual shortcomings, or perhaps because of them, the essays together indeed
reveal something of the moment, of its struggles and contradictions. That they
show rather than capture this jurisprudential moment says something itself about
contemporary philosophy and its possibilities in law.
In keeping with the overall aim of the volume and with Karl Llewellynâ™s own
1934 commentary âOn Philosophy in American Law,â the commentary that follows
constitutes a provocation. Just as Llewellyn (1934: 206) was interested in implicit
philosophy, or with âthose premises, albeit inarticulate and in fact unthought,
which yet make coherence out of a multiplicity of single ways of doing,â so too this
commentary ď¬nds coherence of sorts in the multiplicity of ways of doing what is
done in this collection. It offers apologies to those authors to whom it does not do
Llewellyn, himself a U.S. law professor, offered a quite particular understanding
of philosophy, as several of the essays point out. Llewellyn is less interested in
verbalized philosophy than with what Anita Allen nicely calls the atmospherics of
The author thanks Cheryl Mak, Sarah Misherghi, and Katherine Lemons for excellent comments and
| 279 |
280 Marianne Constable
law, and what Eileen Scallen identiď¬es with ground truth. Llewellyn is interested
in the spirit of the laws, or what Montesquieu might have called the springs that
make the nation go. Felt needs rather than reason or Hegelian spirit guide U.S.
legal history for Llewellyn through natural law, positivism, and, Llewellyn hopes,
a new realism, as Adam Thurschwell shows. The felt needs of Llewellynâ™s time are
social. They are just beginning to articulate themselves, Llewellyn claims in his
essay, not so much in the contemporary ways of the law-guild as in the sociological
and realist writings that herald the future.
Now, seventy-ď¬ve years after Llewellynâ™s essay, this volume shows, Llewellynâ™s
once-implicit philosophy of social needs has become explicit in the law-guild.
Contemporary legal theory stands more or less in the space that Llewellyn opened
up, as Peter Goodrich points out. We are on the cusp of legal realism, striving â“
as Llewellyn did at another end of this moment â“ to move beyond what we are
still embroiled in. The essays in this volume recognize the grip that a sociological
and realist understanding of law holds over us. Many adopt Llewellynâ™s realist
distinction between theory and practice or philosophy and law. By and large, they
then valorize one pole of the distinction, decry the distinction, or seek to overcome
it. In so doing, they show how implicated we are in the ď¬fth moment of Friedrich
Nietzscheâ™s famous history of the error that is reason.
I. PHILOSOPHIZING IN RELATION TO LAW-MENâ™S DOINGS
In his essay, Llewellyn claimed to have limited use for explicit philosophizing.
Not so, many of the contributors to this volume. Identifying philosophy with the
writings of philosophers, albeit from different schools of thought, essays in this
collection variously take Plato, Aristotle, Kant, Hegel, Ricoeur, Hart, Dworkin,
analytical philosophy, moral philosophy, normative theory, Continental philos-
ophy, and critical legal theory to be touchstones for understanding what phi-
losophy in the American legal academy is or should be. The essays suggest that
writings of various subď¬elds of academic philosophy may indeed give âfortu-
nate expression to the living currents of their timeâ (to use Llewellynâ™s phrase).
Contra Llewellyn, the essays suggest further that particular philosophical writings
can offer guidance to those interested in legal and philosophical issues of our
time. Brian Bix, for instance, takes legal scholars to task for their poor reception
of analytical legal theorists (he mentions Raz, Coleman, Postema, Schauer, Lyons,
Shapiro â“ none of whom appear in this collection) and for âhiding behind big
names in philosophyâ (he mentions Wittgenstein, Hegel, Kant, Foucault, Aquinas,
Hobbes, Heidegger, Habermas, âand beyondâ). Matthew Adler puzzles over the
U.S. legal academyâ™s neglect of contemporary moral philosophy (as in Temkin,
Hurka, Kamm, Scanlon), in effect conď¬rming Bixâ™s point that academic philoso-
phers address their own ilk. Austin Sarat and Connor Clarke show how the political
philosophy of the likes of Carl Schmitt and Giorgio Agamben can help sociolegal
scholars understand sovereignty in legal practice. Various essays suggest that virtue
This Jurisprudential Moment 281
(Solumâ™s aretaic turn), new legal realism (Hayman and Levit), Lacanian psycho-
analysis (Schroeder and Carlson), accounts of love and friendship (Garver), and the
work of Ricoeur (both Fisher and Taylor) provide insight into or fulď¬ll particular
contemporary legal-philosophical needs.
The actual uses to which the essays would put philosophy vary, sometimes
surprisingly. Robin West calls for normative jurisprudence to inquire into the legal
good, an issue she claims is omitted in contemporary jurisprudence. Brian Bix,
by contrast, defends the inability of analytical philosophy to be practical. Jeanne
Schroeder and David Gray Carlson agree that philosophy ultimately cannot tell us
what to do but ď¬nd what they call âcash valueâ in psychoanalytic approaches to
law that enable freedom. George Taylorâ™s reď¬‚ections on creativity lead him to call
for greater inculcation of imagination in legal education.
Most of the essays do share Llewellynâ™s (1934: 205nâ— ) belief that âphilosophersâ™
writings and law-menâ™s doings meet rarely on the same level of discourse.â Mootz
himself begins (in his essay) with the irrelevance of contemporary academic phi-
losophy for law and the need to bridge the theory-practice divide. By contrast,
Larry Alexander and Emily Sherwin argue that judges and legal decision makers
would do better to stay away from philosophy, which discipline they identify with
reason. Philosophical reasoning, they argue, undermines the unity and consistency
of obedient rule-following and of common-law precedent.
Few essays, other than those of Larry CatÂ´ Backer and Steven Winter, however,
explore âthe why of either [the philosophersâ™ writings and law-menâ™s doings]â
that Llewellyn thought important. Llewellyn in his appeal to legal realism yet to
come had, as mentioned, offered the functionalism of felt needs as the ostensibly
philosophical spirit that made law what it is in U.S. history. Backer explains U.S.
legal history, by contrast, as a function of American aspirations to perfection, a
âreligion without religion.â Winter explains the âstrange recrudescence of formalist
[as opposed to realist] understandings of lawâ in the legal academy during the past
two decades in terms of world events and an unconscious yet âdeeply held cognitive
model of law.â He addresses in functionalist terms what Steven Smith, like Mootz,
identiď¬es in a different register as a signiď¬cant problem for legal thinkers: âwhat 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.â
For many of the essays, then, their point of contact with Llewellyn lies less in
concern for the spirit of legal doings or with explanations of legal history than with
social reality and the ability of philosophical knowledges of society to ground law
or modern policy. When Frank Michelman inverts Llewellynâ™s use of unarticulated
premises that make sense of law, by offering a philosophical argument for the
use of law as a premise on which certain ostensibly moral demands can rest, he
nevertheless does so in the service of substantively Llewellyan socioeconomic rights.
Most essays raise a more troubling sense of legal realism than does Michelman,
though. They appear uncomfortable with the legacy of legal realism, invoking it as
a specter that haunts contemporary U.S. law. Fully six of the essays quote or play
with the old âchestnutâ (according to Thurschwell), âwe are all legal realists nowâ
(Caudill, Goodrich, Pether, Solum, Tamanaha, Thurschwell). Citing the phrase
282 Marianne Constable
in all seriousness, Brian Tamanaha deplores the emptiness of a law mired in the
instrumental mind-set of a legal realism that offers means but no ends.
II. THE USE OF LEGAL REALISM
What is the use of legal realism, ask Tamanaha and, more subtly, West, when one
does not know what to use law for? Their plaints echo those foretold by Nietzsche
as belonging to the ď¬fth moment of his pithy six-moment history of philosophy
in Twilight of the Idols. In less than 250 words, Nietzsche traces transformations in
truth since the Greeks. The âtrue worldâ of the empiricists is no longer the âtrue
worldâ of the Platonic idea nor the âtrue worldâ of the Christian heaven nor the
âtrue worldâ of Kantian things-in-themselves. Reason posited the truth of these
worlds, which worlds were used as ideals or standards with which to judge this
world â“ the actual, ephemeral, temporal, apparent world â“ as lacking. With the
empiricism of Nietzscheâ™s fourth moment, as with Llewellyan legal realism, truth or
knowledge comes down to earth; formal doctrine, like now-former ideals â“ of the
polis, of natural law, of moral law â“ cannot be empirically known. It follows for legal
realists of today, as for those of Nietzscheâ™s ď¬fth moment (quoted in the epigraph),
that the ââ˜trueâ™ worldâ (in quotation marks for the ď¬rst time) is simply âan idea.â In
the empirical world that rejects the âtruthâ of worlds that lie beyond this empirical
one, law that relies on the old truths or ideals of natural or moral law is no longer
any use. Law is not good for anything. It does not constitute obligations or duty.
Furthermore, insofar as law, as means to empirically or sociologically knowable
ends, grounds itself in empirical knowledge of the social reality that it governs, it
lacks ends beyond itself. For some, such as Tamanaha, this produces an impasse.
Others, such as Jack Balkin and Pierre Schlag, revel in the ways in which they
are no longer bound to particular concepts of law and morality. In the brightness
and daylight of this paradoxically rational moment in which reason encounters
its limitations, Nietzscheâ™s âfree spiritsâ run wild. Balkin declares himself all in
favor of critical legal studiesâ™ ambivalence about relations between law and justice.
Schlag wittily celebrates the absence of ends external to law.
Others experience the moment less riotously, if still dynamically. If the social
policy or modern law of legal realism is without purpose other than itself, if it has
become âuseless and superď¬‚uous,â as Nietzsche writes, then it is âconsequently, a
refuted idea: let us abolish it!â Lawrence Solum, David Caudill, Penelope Pether,
and others indeed respond to claims as to the inability of sociological knowledge
to provide external ends for law with calls for jurisprudence to move on from the
limitations of that reality. They disagree among themselves though about the direc-
tion in which to go. Standing in for todayâ™s Kantians and Greeks, Solum proposes
a return to virtue as a way to break out of antinomies that include the realism-
formalism divide. Caudill shows that Llewellynâ™s legal realism already contains a
âhangoverâ of natural law from back in jurisprudential history. Smith agrees. So
does Jan Broekman, who in his important essay on Llewellyn and life, argues also
that Llewellyn was unaware of the metaphysics of representation. Llewellyn did
This Jurisprudential Moment 283
not realize, Broekman argues, that reason could turn not only against the founda-
tions of law, but also against the transparency of language and its correspondence
to reality. Thurschwell, however, like Mootz and Goodrich and contra Broekmanâ™s
analysis of Llewellynâ™s own views, tries to recuperate a foreshadowing of a challenge
to language from Llewellynâ™s text. And ď¬nally, in a postrealist passion that Llewellyn
might appreciate, Pether turns to the insights of the humanities into what language
does, to generate ways of seeing what ostensibly real, sociologically-knowable law
cannot see about itself.
Understanding law as linguistic or rhetorical practice rather than as (legal realist)
instrument or as moral end as such, opens one to the âreturn of bon sensâ (âgood
senseâ) and âcheerfulnessâ in such relatively grounded and optimistic accounts
of law as those of Dennis Patterson and Robert Burns. Patterson and Burns â“ to
some degree like Goodrich and Pether â“ turn to locally situated rhetorical prac-
tice to understand law. Rhetoric, Mootz argues, exceeds or escapes the constraints
of ostensibly universal reason and logic and hence avoids the âpractice-theory
quandaryâ that frames so many of the essays (including Llewellynâ™s). Patterson dis-
cards concepts and deď¬nitions concerned with rules and structures of law in favor
of a future practice-theory of law as dynamic doing. Burns offers the possibility
of an even more sense-oriented (rather than reason-oriented) phenomenological
account of legal practice and its aspirations.
III. THE END OF AN ERROR?
Can rhetoric and the turn to language âcapture the â˜momentâ™ in legal philosophyâ?
The essays in this volume recognize and respond, in manners variously helpless
and hopeful, ď¬‚ippant and serious, irrelevant and engaged, to the limitations of
the contemporary legal realism of a law-guild that posits its ď¬ndings as the truth
of and about law. From within a space of legal realism that acknowledges some
of its own limitations, this volume asks what one is to make of contemporary
law and jurisprudence. Several essays refuse to guide or to predict. Only one,
that of Philippe Nonet, says directly that making something â“ or anything worth
thinking â“ of our law and jurisprudence may not be within our reach rhetorically
or otherwise. For not only has law become pure instrument, Nonet writes, but the
English language too has become technique, a strategy in the service of ends and
an obstacle to thinking â“ not only about law but also about thought.
What, then, does this volume show? As legal realism extends its grasp, the essays
show how we seek to extend our grasp over law: to master it as practitioners and
to capture it as scholars. The impossibility of these tasks brings some to strive at
them ever more desperately. Some come to believe that we may succeed; others,
that we are doomed. To a few, the impossibility of the task so conceived brings
revelations into the ways of language or speech. In law no less than in philosophy
and in other domains, speech shows â“ thankfully without capturing â“ moments
that are not completely of our making nor within the control of legal realism and
284 Marianne Constable
Llewellyn, Karl N. âOn Philosophy in American Law.â U. Pa. L. Rev. 82.3 (1934): 205â“12.
Nietzsche, Friedrich Wilhelm. âTwilight of the Idols.â In The Portable Nietzsche. Trans.
and Ed. Walter Kaufman. New York: Viking Press, 1968, 463â“563. [Nietzsche, Friedrich.
âGotzendÂ¨ mmerung.â WERKE. FÂ¨ nfter Band. Leipzig: Alfred FrÂ¨ ner Verlag, 1930.]
a u o
34 Fresh Looks, Philosophy-in-Action,
and American Law
Mootzâ™s premise: ask a large number of talented and wide-ranging legal thinkers to
share their thoughts about the ongoing development of American law, and more
speciď¬cally about the intersection of philosophy and law in America at this moment
in time. Donâ™t give them much space. Discourage footnotes. As a shared point of
provocation, refer them to a short piece of critical reď¬‚ection, speculation, and
exhortation by a man who seventy-ď¬ve years ago asked himself a similar question.
Could todayâ™s academics, legal and otherwise, play along? Would they embrace
Mootzâ™s license to think out loud? If they did, what would happen?
In what follows, I offer my view on some of these matters. The essays in this
volume are impressive on several fronts. Many would be, even if published in
isolation, superb pieces of work. For example, Balkinâ™s penetrating account of
critical legal theory suggests new roles and critical possibilities in the present
for a movement that is seldom mentioned outside of obituaries these days. But
the volume does something more than provide space for tantalizing hypotheses,
though it certainly does this. It draws attention to philosophy and American law
in a way which exempliď¬es the key moments of Llewellynâ™s short essay.
Llewellyn encouraged us to take a fresh look at matters of theoretical and
practical concern. He drew our attention not to dusty tombs of arid and abstract
philosophical speculation, but to what he called philosophy-in-action. He wanted
to investigate not what was said about legal philosophy but what was done by
the philosophical commitments embodied in law. How does American law live
its philosophy? What American social experience has produced such philosophy?
How and why has it changed over time, and how might we expect it to change or
encourage it to change in the future?
A FRESH LOOK
As Broekman points out in his essay, Llewellyn wants to take âa fresh look,â and
his âdesire for lawyers to see legal facts â˜fresh,â™ without philosophical ideological
connotations, was captured by his effort to deď¬ne the â˜grand style,â™ which he
opposed to the â˜formal styleâ™.â Although it is clear that the great majority of
contributors to this volume do not hold out much hope for accessing legal facts
unencumbered by ideological presuppositions (e.g. Balkin, Hayman and Levit),
| 285 |
286 Michael Sullivan
there is nonetheless a sense of the fresh look that permeates the volume and
manifests itself in a variety of different ways.
I will detail some speciď¬c impressions along these lines below, but perhaps more
important is a general impression that, for the reader, the juxtaposition of views on
philosophy and American law embodied in the volume enables a fresh look. What
we see is a collection of thoughts on philosophy and American law by highly intel-
ligent individuals with advanced training in multiple disciplines who are highly
invested in the questions under discussion that embody very different assumptions
about the meaning of the topics under discussion. For some, philosophy is a highly
technical discipline committed to conceptual analysis. Among thinkers with this
view, some view such analysis as underappreciated while others see it as overrated.
Others view philosophy more loosely as the name of a collection of practices which
includes cultural studies, rhetoric, and a variety of other disciplines that, for con-
tingent reasons, have developed tools to facilitate cultural self-understanding and
critique. Impressions of American law are equally varied among the contributors.
The authors have been given only a short space for their observations. They
have not been asked to defend their views against critique, but rather to take this
occasion to reď¬‚ect on the present situation of philosophy and American law. And
thatâ™s one of the things that makes reading the essays together so interesting. Itâ™s
not a matter of sorting through a variety of complex arguments to see who does
the best job of demonstrating the plausibility of their view, but rather of simply
taking a look at what people think. What are the salient features of philosophy
and American law that have grabbed their attention? What do they think needs
to be done in response to the present situation? And, when read together, what
to make out of the wide range of different assumptions and proposed remedies?
What strikes me, as a reader, is how the collection itself facilitates a fresh look at
philosophy and American law by presenting so many interesting, but competing,
ways of looking at the key terms under discussion.
For example, many in the volume take the opportunity offered by Mootz to
revisit Llewellynâ™s 1934 essay âOn Philosophy in American Lawâ and discover a
departure point for rumination on the trajectory of how philosophy of law has
developed in the United States. Itâ™s probably not too surprising to discover a
number of participants in an academic volume calling, at least in some sense, for
more philosophical sophistication. Itâ™s interesting that a number of participants
observe that greater philosophical sophistication has been attained since Llewellynâ™s
day, but note that American law, by and large, pays little attention to philosophy
(here understood as an academic discipline) generally.
Brian Bix, for example, charts a history of the development of legal philosophy,
in particular analytical legal philosophy, that has become increasingly sophisticated
since Llewellynâ™s time. One mark of this sophistication is that nowadays analytical
legal philosophy is written primarily by academics who have advanced philosoph-
ical training. However, Bix worries that the achievement of this very sophistication
may marginalize the discourse because so few have the necessary training to fully
participate. The implication, as I read it, is that although legal philosophy has
come of age since Llewellyn, much needs to be done to facilitate its appreciation.
Matthew Adler raises a similar concern. He wonders why, despite the vast growth in
Fresh Looks, Philosophy-in-Action, and American Law 287
interdisciplinary legal studies, there has not been greater attention to the potential
contributions of academic moral philosophy to law. Perhaps, he suggests, this is
tied to the fact that much of the most interesting recent work in moral philosophy
is not nonconsequentialist in character. Whatâ™s interesting is that in the fresh look
taken by both Bix and Adler, we see increasingly sophisticated philosophy avail-
able to a culture of American law that, by and large, ignores it â“ a fact that they
both lament. The implicit call is not so much for better philosophy but for a legal
culture that takes philosophy seriously. One sees optimism about the potential for
philosophical contributions to law but pessimism about the likelihood that this
potential will be widely appreciated.
Adam Thurschwell reaches a similar conclusion, but from a very different van-
tage point. Llewellyn, on Thurschwellâ™s view, is looking to explicate the philosophy
âconcretely embodied in the history of American law as it has been practiced, done,
and lived, and not as it has been written about or theorized by legal philosophers.â
One might expect, from this description, that no philosophers per se would have
the right orientation given the typical preference for theory over practice. If one did
ď¬nd such a philosopher, one would expect that she would be steeped in American
culture in the manner of some American pragmatists. In both cases, one would be
surprised. It turns out, on Thurschwellâ™s analysis, that a post-Hegelian orientation
is in order. Llewellynâ™s call to explicate the implicit philosophy of American law
can be seen as a piece of Hegelâ™s philosophy of history, which recognizes in his-
tory a âsequence of embodied forms of consciousness captured in the habits and
attitudes of the community.â Thurschwell argues that Llewellyn would be not con-
tent to stop with a Hegelian project, however, precisely because he, unlike Hegel,
holds out hope that such philosophers might not only explicate the philosophy
embodied in our legal and social practices but also contribute to shaping those
practices. Hence, the philosophy appropriate to American law is group of post-
Hegelian thinkers who, perhaps ironically, are currently identiď¬ed primarily with
the tradition of Continental philosophy. If it is a shock that Thurschwell would
have us turn to Continental philosophy to help us articulate the felt needs of Amer-
ican legal culture, he reminds us that the thinkers to which Llewellyn turned for
inspiration in his own day, including Holmes and Pound, appeared, as Llewellyn
himself remarks, âhopelessly unorthodoxâ at the time. Continental philosophy,
like Llewellyn, understands that philosophy is implicit in our social practices but
that this realization need not commit us to some form of historical positivism
wherein the values thus embodied are immune from critique. The crucial task
is to ď¬nd resources for such criticism without seeking to transcend history, and
Thurschwell offers us such luminaries as Hans-Georg Gadamer, Giorgio Agamben,
and Jacques Derrida as models. So, like Bix and Adler, there is an effort to draw
attention to the potential for increasingly sophisticated philosophy to contribute
to American law, though in this case the philosophical contributions with the most
to offer come from the Continental rather than the analytic tradition.
In contrast, Larry Alexander and Emily Sherwin suggest that American law
might be better served by avoiding philosophy. Indeed, philosophy might interfere
with the ability of legal decision makers to do their job. They take pains, however,
to distinguish their account of philosophy from Llewellynâ™s: âLlewellyn described
288 Michael Sullivan
philosophy as something akin to an ideology or decision making ethos, which will
vary over time according to the interest of decision makers and the needs of society.
In contrast, we have in mind a discipline that employs reason to bring clarity, depth
and precision to the process of thinking about a given subject.â More interesting
still, however, is the distinction they make between participants in legal decision
making (which includes judges and lawyers) and observers (which presumably
include academics). âPhilosophy is ď¬ne for observers of law but not necessarily
good for its participants.â They develop a number of reasons for this conclusion.
Central among them is their contention that the practice of law is built around
following rules, which often proves valuable even if done unreď¬‚ectively, whereas