“As I have just presented it, this debate is likely to confirm the worst fears of large numbers of contemporary American law professors, the fear that analytic jurisprudence in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants, many of whom are English and most of whom are dead.” (Fred Schauer, “Positivism Through Thick and Thin”, in Brian Bix's Analysizing Law).
This brief paper/'think piece' by Steve Smith about the relevance of jurisprudence has provoked an interesting (and certainly spirited!) exchange between Tamanaha, Leiter, Lipshaw, Solum, and Smith himself (links and reply here). Smith's argument seems to be more or less as follows:
The natural law/positivism debate seems semantic at best, and the intra-positivist debates are even more trivial. This might well be because of how debates about the nature of morality are typically bracketed within legal philosophy, taking place purely within (professionally separated) meta-ethics seminars. Perhaps, then, we should just give up on general jurisprudence. On the other hand, practitioners still seem to experience, or at least act as if, there really is some immanent rationality, rather than mere set of posited norms, to law; take their treatment of precedent. This might be where the action is.
Leiter's response is that if general jurisprudence seems sterile, it's because the positivists simply won the debate, and trying to bring God back into things serves no purpose but mystification. Moreover, asking philosophers to be "interesting" to outsiders makes no sense at all; we don't ask it of other specialized scholars, nor should we.
My own thoughts, for what they're worth, are more in line with those of Brian Tamanaha: while conceptual, analytic, general jurisprudence has become an increasingly insular conversation, the study of law 'as such', focusing on its social and institutional dimension, is and ought to be flourishing.
I, personally, focus on constitutionalism precisely because it's an area where the abstract insights of the positivists can and must be supplemented with the substantive insights of the historical institutionalists and political sociologists. Since Kelsen, Hart, and Raz, we've taken for granted a grundnorm, or a rule of recognition, or criteria of legal validity; but any examination of constitutionalism as a political practice immediately makes clear just how messy and interesting these abstract entities really are. If legal philosophers properly-so-called aren't interested in helping sort this stuff out, that's a shame, because I think their conceptual tools can be quite helpful in making sense of how institutional and social practices in fact create, sustain, and change constitutional meaning. We want to go beyond Hart's (quite true) observation that "nothing succeeds like success" when thinking about constitutional change, and I think it's only by marrying the best of the conceptual work with the richest of the substantive and explanatory that we can do this. Moreover, it's only when we have this more satisfactory institutional picture that we can really make headway on what is, in the end, of most importance: the prescriptive and justificatory work.
2 comments:
I'm surprised by your comments in the last paragraph. Let me start by saying that I fully agree that the framework that this century's leading general jurisprudes have set out is extremely helpful in tackling questions of local (and/or special) jurisprudence. Hart's "all that succeeds is success" view of constitutional uncertainty ought to be extremely helpful to constitutional theorists; and his practice theory of rules ought to be utilized by comparative lawyers (who seem quite ignorant of goings-on in legal theory). But I disagree with your view that it's "a shame" that legal philosophers are uninterested in rolling up their sleeves and getting involved in the application of their theories in the real world. What's wrong with a specialization of labor that sees legal philosophers churning out theories and leaving to (say) constitutional scholars to pick and apply the most useful theories? The debate among inclusive and exclusive legal positivists may seem at first pointless (as you seem to suggest), but think of what it means in a specific context like a death penalty case in the US. ILP leads to the view that the law *incorporates*, whereas ELP that the law only *frames*, the moral judgment of what is "cruel and unusual". That's a pretty important distinction. The scholars though in the best position to apply the theories developed by legal philosophers to constitutional law are of course constitutional scholars. So again: what's wrong with the specialization of labor?
Thanks for the response - I'll try to answer these concerns in a post tomorrow!
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