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philosophy demands that we should not follow rules unre¬‚ectively.
So, we have promising philosophy of analytic and continental stripes that might
contribute if the practices of American law would consider them. We have a view
of philosophy as committed to conceptual clarity and reason-giving that suggests
such philosophy might interfere with and undermine central goals of American
law. What if we take an even broader view on the meaning of philosophy?
Robert Burns, Penelope Pether, and Anita Allen take a fresh look that sends
them in a different direction, looking for something more than philosophies which
focus on questions of epistemology, method, and even hermeneutics. Like Bix and
Thurschwell, Burns believes we have richer philosophies today, but he believes that
an adequate philosophy of law must not merely explain and justify legal doctrine,
but also “provide a constructive account of legal practices that reveals how and
when they achieve valid results.” To do this involves moments of both interpretation
and justi¬cation and thus deploys resources from philosophy, anthropology, and
rhetorical studies. He suggests that we can “illuminate decisions in particular cases
by exploring and applying in the legal context what we can learn from a number
of different philosophical traditions.”
Pether wants to take up Llewellyn™s effort to take a fresh look while eschewing
what she sees as his ambitions for a totalizing philosophy anchored in the advance
of social science. The crucial effort, on her view, concerns “restoring the subject of
American law to the possibility of justice.” In this way she shares Thurschwell™s con-
cern with issues of justice but relies on rhetoric, cultural studies, critical linguistics,
and the privileging of nontotalizing theory, which, following Norris, “enables the
familiar to be seen with estranged eyes.” She recommends comparative and critical
legal studies to help theorists undertake an ontology of legal subjects which is “as
much as if not more than a coherent and principled account of legal epistemology
and hermeneutics . . . the most critical project for those of us who profess the phi-
losophy of American law.” The introduction of the self-re¬‚ective question here is
of particular note. What is it that we who profess the philosophy of American law
are committed to? Pether™s fresh look is a startling interruption of sorts, not just
a call for more philosophy, even a radical philosophy understood as an ontology
of the subject, but a reminder of the responsibility of the inquirer whose inquiry
shapes the object and the subject, too.
Perhaps it is not so surprising to discover that many who revisit Llewellyn™s
essay discover within it an earnest, if misguided in some respects, effort to discover
a substantial philosophical basis in American law. But when Anita Allen takes a
Fresh Looks, Philosophy-in-Action, and American Law 289

fresh look at Llewellyn™s essay, she is struck primarily by Llewellyn™s inattention
to philosophy in a strict sense, inasmuch as we understand philosophy in a con-
temporary vein to focus primarily on conceptual issues. Rather, she argues that
“by ˜philosophy™ Llewellyn only meant atmosphere.” And for him, the atmosphere
within which law operated included legal philosophy like natural law, positivism,
and realism, but also, as she reminds us, racism, maternalism, and paternalism.
Her fresh look leaves her questioning not so much why American law hasn™t taken
interest in the availability of increasingly sophisticated philosophical discourses,
but why American law has failed to critically assess the philosophy or atmosphere
to which Llewellyn™s essay draws our attention. When Llewellyn talks about philos-
ophy in American law, according to Allen, he means the atmosphere that surrounds
and shapes it but too often is taken simply as given and remains critically unques-
tioned. She demonstrates the persistence and effects of such unacknowledged
philosophical orientations by uncovering how maternalism and paternalism are
guiding forces in recent Supreme Court cases concerning partial-birth abortion.
Subsequently, she raises critical questions about the conditions of the atmosphere
that facilitate this persistence.
Many of the other authors in the volume also have interesting perspectives on
what philosophy consists in, how best to characterize American law, and whether
one can advance or improve the other. There are a wide range of views here. Phi-
losophy can help us attain a clearer view of our fundamental legal commitments,
or alternatively, it distracts us into conceptual puzzles. Some say it confronts us
with the unavoidable existential challenge of how to live our lives; others suggest
it all too often leads to detachment, which obfuscates our implication in the func-
tioning of the system. American law is primarily about the decisions of judges
and development of doctrine. No, it™s about lawyerly practices of litigation and
advocacy. Perhaps it encompasses our entire social structure. Ordinarily, in an aca-
demic context, one would immediately subject the expression of such differences
to a unifying question “ who is right? But here, inasmuch as the authors weren™t
asked to defend their views, the more interesting observation is simply the fact of
this wide range of descriptions and the sense of central problems in the present
that are tied up with these descriptions. Contra some recent obituaries for legal
theory which suggest that there is little of interest to be done, one sees whole sets
of problems appear and disappear depending upon the underlying assumptions
of what it means to engage American law philosophically.

PHILOSOPHY-IN-ACTION: THEORIZING PRACTICE
AND PRACTICING THEORY
A second moment in Llewellyn™s article that is highlighted in this collection is
his insistence that we study not philosophy in the abstract, but philosophy-in-
action. Llewellyn was not interested in philosophy as a set of propositions about
the nature of truth, justice, beauty, or the good to be understood theoretically and
subsequently applied to practice. Theory and practice are not two separate realms
that must somehow be reunited. Rather, Llewellyn™s philosophy-in-action suggests,
in a manner consistent with the pragmatism of Peirce, James, and Dewey, that we
290 Michael Sullivan

discover our philosophical commitments by investigating our practices. On what
assumptions and beliefs are they based? What are their consequences? What do
they produce? There is something akin to a use theory of meaning at work here “
our practices mean what they do. If you want to know our philosophy of law, don™t
ask us what it is; look! Our actions and practices, critically understood, belie our
philosophy. “Thus what is here before the telescope is the changing array not of
verbalized philosophies, but of philosophies-in-action as the history of law in these
United States has gone its way. . . . I am concerned with philosophy-in-action, with
implicit philosophy, with those premises, albeit inarticulate and in fact unthought,
which yet make coherence out of a multiplicity of single ways of doing” (Llewellyn
1934, 206).
Several of the essays collected here do just this “ they look at our practices and
ask what assumptions underlie them. Steven Smith points to what he sees as a
huge chasm between theory and practice. Theoretically, legal scholars insist that
“legal arguments and decisions are not attempting to ascertain and give effect to
some preexisting hidden or transcendental model.” Practically, judges, scholars,
and lawyers “have behaved as if legal arguments and decisions are attempting to do
just that.” How do we square this circle? One might think that the theorists could
easily be dismissed on Llewellyn™s philosophy-in-action model simply by insisting
that what we are after is the philosophy implicated in the practice, but of course
the theorists take themselves to be offering a critical view of the practice that better
describes the practice despite how things may appear on the surface.
Smith™s analysis suggests that when we undertake to spell out the implications
in American law what we ¬nd is incoherence similar to the kind of incoherence
Alasdair MacIntyre has famously charted in our contemporary moral discourse.
Having stripped our theory of theological resources we ¬nd “a drastic narrowing of
the range of admissible argument or explanation, claims or positions, that would
have been framed forthrightly in theological terms, now must be translated into
more secular terms “ or else abandoned.” Under these conditions, “jurisprudence “
the activity of theorizing or philosophizing about law, about the nature of law “
seems close to moribund.” There™s just not much to do, on Smith™s view, if you
are uncompelled by the rehashing positivist/natural law disputes about whether
bad law is really law. Moreover, because the only resources admissible in contem-
porary discussions for making sense of our present practices are instrumentalist
in character, legal theory naturally turns away from questions about the nature
of law to a variety of evaluative, sociological, and normative questions that “do
not seem in any way distinctively jurisprudential in character.” Perhaps we might
recover jurisprudence if we allow ourselves to “take seriously, or to rehabilitate or
revise for modern use, the assumptions that animated and continue to animate
the traditional practices of law.” Said otherwise, there is a philosophy implicit in
our practice that our theory now ignores. Perhaps we should make it explicit and
see what that makes possible?
Robin West, like Smith, sees that something signi¬cant has changed with the
secularization of law. We have lost our focus on the concept of the human good
and the study of human nature that would help us understand that good. Jurispru-
dence has suffered because attention to the question, What is law? has excluded
Fresh Looks, Philosophy-in-Action, and American Law 291

attention to the legal good. Contemporary theorists have “con¬‚ate[d] the legal
is and moral good.” “This has the effect, desired by Dworkin and Fuller both, of
morally enriching the legal craft, but it also had the effect of subjecting the law only
to internal legal “ albeit higher or constitutional critique but legal all the same,
thus muting the purely moral criticism of law, or jurisprudential inquiry into law™s
potential goodness.” West wants to encourage sustained inquiry into the concept
of the human good. Unlike Smith, she does not suggest this is impracticable given
secularization, but she does think that contemporary theory has, to the detriment
of jurisprudence generally, ignored this central task. West is less interested in asking
what theory of the good is implied by our present legal practices than in asking
how it is that we understand our legal practices to contribute to the human good.
Of course, to do this, we must inquire after the human good in the ¬rst place and
we must not ignore these questions, as she thinks we do, in our jurisprudence.
For both Smith and West, our present legal practices depend on theological
or philosophical commitments that remain obscure and are insuf¬ciently inves-
tigated. American law can™t make sense of itself let alone reveal a philosophy-in-
action that is substantially well formed. In part, American law either doesn™t ask
the relevant questions, namely, what good law can do, or it doesn™t allow itself
the tools necessary to investigate these. One might think in light of these critiques
that, in some sense, legal practice is parasitic upon larger moral, religious, or eth-
ical questions. While not denying that there are other needs that condition the
development of law, Michelman sees something different about the philosophy-
in-action in American law. He sees an American law that doesn™t simply respond
to the demands of an external morality, but rather an American law that creates
its own moral demands. So, we have an amazing range of understandings and
interrelations at work wherein law responds or fails to respond appropriately to
moral demands, wherein law needs or doesn™t need religious language to explain
itself, and wherein law may generate its own moral terrain independent of general
moral concerns.

WHAT DOES AMERICAN LAW PRODUCE? WHAT DOES IT DO?
Political theory that focuses on the legitimacy of social and legal institutions and
arrangements tends to give pride of place to legitimacy concerns. How do we know
that a particular set of legal rules is just? Perhaps one can provide an argument
for a substantive theory of justice that shows which rules must be chosen. Some
versions of natural law proceed in this manner, but it has proved impossible to
secure anything close to universal agreement on which theory is better or more
correct than the others. Another alternative has been a procedural or social contract
approach that secures agreement on a set of ground rules, which when enforced are
justi¬ed by the prior agreement of the parties. There is still no shortage of thorny
problems, but the theoretical demands become a bit easier to meet since, absent
knowing one™s interest in a particular concrete controversy, it™s easier to come to
agreement about our abstract commitments to justice, fairness, and the like. And
yet, as a theoretical matter, it™s not enough to know that individuals agreed to a set of
rules, because we must also ask about the background morality that made that very
292 Michael Sullivan

agreement possible. It would seem that there must be a background morality in
place that would make promising possible. You couldn™t begin by signing on to an
agreement to respect agreements because there would be nothing prior to warrant
respecting that agreement; there must be some sort of background morality in
place that enables the ball to begin rolling. What else, aside from promise keeping,
does such background morality enable or constrain?
Llewellyn™s famous insistence that to understand the development of law one
must understand the development of the society in which it operates changes mat-
ters. He insists that to understand law one must understand how social pressures
have in¬‚uenced the development of law. This insight changes how we look at the
law, even philosophically. Instead of asking solely about the legitimacy conditions
necessary for law to grow “ that is, instead of merely focusing on the abstract
theoretical story about how we can derive a legitimate social order from a state of
nature, we instead ask how law responds to social needs. More than this, insofar
as law changes the social terrain within which needs are expressed, satis¬ed, and
frustrated, law itself in¬‚uences the development of future needs such that it both
responds to and shapes social needs. It is this last point that Michelman takes and
runs with.
Whether a particular set of legal rules is required given our understanding
of the moral background conditions, Michelman argues that certain obligations
may follow from implementing a legal system, even if there is no obligation to
implement a legal system in the ¬rst place. His fresh look turns matters upside
down and has us asking not the usual question of how morality ¬ts in with law,
but the more provocative question of how morality might ¬‚ow from law. What
if we started with a system of law as premise and derived our moral obligations
accordingly? As Nietzsche famously asked in the preface to Beyond Good and Evil:
“Supposing truth is a woman “ what then? Are there not grounds for the suspicion
that all philosophers, insofar as they were dogmatists, have been very inexpert
about women?” (Nietzsche 1966, 1). What if we start with law as premise? Here we
don™t simply ask whether our law embodies a coherent philosophy but consider
what the law itself gives rise to.

CONCLUSION
Judging from the essays collected in this volume there is no shortage of philoso-
phy in, around, alongside, in support of, outside of, and at odds with American
law. We™re not all realists now “ if we ever were. Not so much because we are
against ¬nding ways to use the law to serve our ends, but because we have a plu-
ralism of ends that is large and extends to competing descriptions of our practices
(including legal practice). American law harbors instrumental and deontological
moments, secular proclamations, and persistent theological overtones. We cele-
brate descriptive conceptual analysis even as many call for making explicit our
normative commitments. In short, taken as a whole as part of an effort to take a
fresh look and reveal the implicit working philosophy in American law, the volume
reveals a range of legal values, methods, strategies, procedures, and commitments
that are both mutually supportive and antagonistic in turn.
Fresh Looks, Philosophy-in-Action, and American Law 293

The many calls to action contained herein persuasively, if depressingly, diag-
nose a range of problems that American law faces in trying to respond to our
ever-changing community. In these calls one hears not just philosophy-in-action,
but theorists in action. For the most part, the efforts comment not only on what
American law has become but what it should become, how it should move forward.
The authors have noted both potential theoretical resources and the absence of
such resources for addressing the problems at hand. The invitation implicit in
the theoretical conversation about American law calls one not merely to join in
predicting the future development of the discourse, but to an engagement that
will help direct that development. Whether one ¬nds American law suf¬ciently
philosophical, the impressions shared here suggest that ideas have mattered and
will continue to matter in the development of American law. Moreover, as troubling
as many of the observations presented about American legal culture are, the wide-
ranging, nuanced criticism, cautious idealism, and the repeated demonstrations of
creative theoretical engagement show that American law in general, and Llewellyn™s
essay in particular, are good for philosophy.

WORKS CITED

Llewellyn, K. N. “On Philosophy in American Law.” 82.3 U. Pa. L. Rev. (1934): 205“12.
Nietzsche, Friedrich. Beyond Good and Evil: Prelude to a Philosophy of the Future. Walter
Kaufmann trans. (New York: Vintage Books ed., 1989) (1886).
Contributors and Selected Bibliography




Matthew D. Adler
Leon Meltzer Professor of Law
University of Pennsylvania Law School
madler@law.upenn.edu
Well-Being and Equity: Framework for Policy Analysis. Oxford: Oxford University Press
(forthcoming 2010).
With Eric Posner. New Foundations of Cost-Bene¬t Analysis. Cambridge, MA: Harvard Univ.
Press, 2007.
“Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S.
Law?,” Nw. U.L. Rev. 100.2 (2006): 719“805.
With Chris Sanchirico. “Inequality and Uncertainty: Theory and Legal Applications,” Univ.
Pa. L. Rev. 55.2 (2006): 279“377.

Larry Alexander
Warren Distinguished Professor of Law
University of San Diego School of Law
larrya@sandiego.edu
With Emily Sherwin. Demystifying Legal Reasoning. Cambridge: Cambridge Univ. Press,
2008.
With Emily Sherwin. The Rule of Rules: Morality, Rules, and the Dilemmas of Law. Durham,
NC: Duke Univ. Press, 2001.
“Bad Beginnings.” U. Pa. L. Rev. 145.1 (1996): 57“87.
“The Gap.” Harv. J.L. & Pub. Pol. 14.3 (1991): 695“701.

Anita L. Allen
Henry R. Silverman Professor of Law and Professor of Philosophy
University of Pennsylvania Law School
aallen@law.upenn.edu
Privacy Law and Society. St. Paul, MN: Thomson West, 2007.
The New Ethics: A Guided Tour of the Twenty-First Century Moral Landscape. New York:
Mirimax, 2004.
Why Privacy Isn™t Everything: Feminist Re¬‚ections on Accountability. Lanham, MD: Rowman
and Little¬eld, 2003.
Ed. with Milton C. Reagen. Debating Democracy™s Discontent: Essays on American Politics,
Law and Public Philosophy. Oxford: Oxford Univ. Press, 1998.

| 295 |
296 Contributors and Selected Bibliography

Larry Cat´ Backer
a
Professor of Law
The Pennsylvania State University Dickinson School of Law
Director, Coalition for Peace and Ethics
lcb911@mac.com
“Fides et Ratio: Religion and Law in Legal Orders Suffused by Faith.” Law at the End of the
Day. July 30, 2007 (available at http://lcbackerblog.blogspot.com/2007/07/¬des-et-ratio-
religion-and-law-in.html).
“Reifying Law “ Government, Law and the Rule of Law in Government Systems Penn State
Int™l. L. Rev. 26.3 (2007): 521“63, and Law at the End of the Day, Oct. 22, 2006 (available
at http://lcbackerblog.blogspot.com/2006/10/reifying-law.html).
“Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges.” Wm. &
Mary Bill of Rights J. 12.1 (2003): 117“78.
“Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts
and Culture.” B. C. Third World L.J. 20.2 (2000): 291“343.

Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
Director, The Information Society Project
Yale Law School
jack.balkin@yale.edu
With Martin Lederman et al. “The Anti-Torture Memos.” Balkinization, 2001“2007 (avail-
able at http://balkin.blogspot.com/2005/09/anti-torture-memos-balkinization-posts.
html).
“The Proliferation of Legal Truth.” Harv. J. Law & Pub. Pol™y. 26.1 (2003): 5“16.
Cultural Software: A Theory of Ideology. New Haven, CT: Yale Univ. Press, 1998.

Carlos A. Ball
Professor of Law
Rutgers University School of Law (Newark)
cball@kinoy.rutgers.edu
“Against Neutrality in the Legal Recognition of Intimate Relationships.” Geo. J. of Gender
& L. 9.2 (2008): 321“36.
“This Is Not Your Father™s Autonomy: Lesbian and Gay Rights from a Feminist and Relational
Perspective.” Harv. J. of Gender & L. 28.2 (2005): 345“79.
“Looking for Theory in all the Right Places: Feminist and Communitarian Elements of
Disability Discrimination Law.” Ohio State L.J. 66.1 (2005): 105“75.
The Morality of Gay Rights: An Exploration in Political Philosophy. New York: Routledge,
2003.

Brian H. Bix
Frederick W. Thomas Professor of Law and Philosophy
University of Minnesota
bix@umn.edu
“Legal Philosophy in America.” In The Oxford Handbook of American Philosophy. 551“77.
Ed. Cheryl Misak. Oxford: Oxford Univ. Press, 2008.
Jurisprudence: Theory and Context, 4th ed. London: Sweet and Maxwell; Durham, NC:
Carolina Academic Press, 2006.
Contributors and Selected Bibliography 297

A Dictionary of Legal Theory. Oxford: Oxford Univ. Press, 2004.
Law, Language, and Legal Determinacy. Oxford: Oxford Univ. Press, 1993.

Jan M. Broekman
Distinguished Visiting Professor of Law
The Pennsylvania State University Dickinson School of Law
Dean Emeritus, Catholic University of Leuven, Belgium
jmb56@psu.edu
“Trading Signs: Semiotic Practices in Law and Medicine.” Int™l. J. for the Semiotics of Law
20.3 (2007): 223“36.
The Virtual in E-education. New York: IIS, 2004.
“Legal Education, Institutional Skills and European Opinions.” Int™l. J. for the Semiotics of
Law 14.3 (2001): 249“61.
A Philosophy of European Union Law. Leuven: Peeters, 1999.

Robert P. Burns
Professor of Law
Northwestern University School of Law
r-burns@law.northwestern.edu
“How Law Knows in the American Trial Court.” In How Law Knows. 126“55. Eds. Austin
Sarat et al. Stanford, CA: Stanford Univ. Press, 2007.
“The Distinctiveness of Trial Narrative.” In The Trial on Trial: Truth and Due Process, Eds.
Antony Duff et al. Oxford, UK: Hart Publishing, 2004: 157“77.
“Some Philosophical Resources for An Account of Truth Practices in the American Trial.”
Pol. & Legal Anthropology Rev. 26.2 (2003): 109“35.
A Theory of the Trial. Princeton, NJ: Princeton Univ. Press, 1999.

David Gray Carlson
Professor of Law
Benjamin N. Cardozo School of Law
dcarlson@yu.edu
A Commentary to Hegel™s Science of Logic. London: Palgrave MacMillan, 2007.
“Hegel and the Becoming of Essence.” Cosmos & History: J. Nat. & Soc. Phil. 3 (2007): 276“
390. Reprinted in Rethinking the Place of Philosophy With Hegel. 118“35. Eds. Paul Ashton,
Toula Nicolacopoulos, and George Vassilacopoulos. Melbourne: Melbourne Univ. Press,
2007.
Hegel™s Theory of the Subject. London: Palgrave MacMillan, 2006.
Ed. with Peter Goodrich. Law and the Postmodern Mind. Ann Arbor: Univ. of Michigan
Press, 1998.

David S. Caudill
Professor and Arthur M. Goldberg Family Chair in Law
Villanova University School of Law
caudill@law.villanova.edu
With L. H. LaRue. No Magic Wand: The Idealization of Science in Law. Lanham, MD:
Rowman and Little¬eld, 2006.
298 Contributors and Selected Bibliography

“A Calvinist Perspective on the Place of Faith in Legal Scholarship.” In Christian Perspectives
on Legal Thought. Eds. M. McConnell, R. Cochran, and A. Carmella. New Haven, CT:
Yale Univ. Press, 2001, 307“20.
Lacan and the Subject of Law. Atlantic Highlands, NJ: Humanities Press, 1997.

Connor Clarke
Amherst College Class of 2008
Mr. Clarke writes for Slate and the New Republic.

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