« "Legal Philosphy: 5 Questions" | Main | An Epistemological Puzzle about Legal Positivism? »

September 27, 2007

The Worst Jurisprudential Article of the Year?

MOVING TO FRONT FROM SEPTEMBER 9 in light of new comments.


I fear it is Steven D. Smith's "Jurisprudence:  Beyond Extinction?" which, surprisingly, Larry Solum, described as "highly recommended."  (Larry is a nice guy, and Steve [who is also a nice guy, and quite knowledgeabout about constitutional law], is a former colleague of his.)  Perhaps as an example of what not to post on-line if you want your professional colleagues to think you know something about jurisprudence, Larry's recommendation is a good one.

If one wants to argue that some field is moribund or heading for extinction or extinct, one has to fairly and correctly represent it, both its substance and its methods.  Smith's paper does not even come close.

Steven Smith thinks "jurisprudence--the activity of theorizing or philosophizing about law, about the nature of law--seems close to moribund."  Now I am, admittedly, on record as thinking "general jurisprudence" (a far more specific target than Smith has in mind) is a bit moribund, but not for Smith's "reasons" (about which more in a moment).  Rather, I think that Hart and Raz answered--given the existing philosophical tools at hand--the main questions, though there is some tidying work to be done (including cleaning up the mess Dworkin has made of honest intellectual inquiry on these topics).  I think, to be sure, there is a huge meta-philosophical question about the tools being used, and there is also clearly an enormous amount of interesting "philosophizing about law" being done that has little to do with issues of general jurisprudence.  So my view is nowhere in the vicinity of Smith's muddle.

Smith equates jurisprudence with Holmes's florid description of questions that "connect...with the universe and catch an echo of the infinite," and then declares that nowadays questions in philosophy of law "hold little interest for any but the purest (i.e., the most incorrigibly academic) of theorists."  Here are a few thoughts and questions provoked by this criterion:

1.  How many scholarly topics in law hold interest "for any but the purest" and "most incorrigibly academic"?  Almost none, as Smith well knows.  Even in constitutional law, the interest does not extend to the actual intellectual and scholarly questions, but to the outcomes, to the specific decisions endorsed or decried. 

2.  How many copies have Steve Smith's books sold?  Have they sold as many as Hart's The Concept of Law?  Does this mean that they are merely for the "incorrigbly academic"?

3.  If we were to take seriously Holmes's rhetorical excess as a criterion for philosophical inquiry, what would survive?  Almost nothing--not even most of Holmes's writings about law.

4.  Why is "connect[ing] with the universe" and the "echo of the infinite" a relevant benchmark for philosophical inquiry about law or any other topic?  (Is there any reason to think that Holmes himself really thought this was the nature of jurisprudence?)  Why not think that philosophy of law might concern the nature of law, legal systems, and legal reasoning?

5.  Why is the "interest" of scholars an objection to the value of a scholarly inquiry?

The last question is the crux of the matter.  Is it really the case that intellectual inquiry must be held hostage to what is "interesting" to those who are not intellectuals or scholars?  And if so, why limit this requirement to jurisprudence?  Why not physics and mathematics, which must surely deal with the infinite?  Why not history?  Why not the life of the mind?  And why set the bar only at "interest"?  Why not require beauty?  Amusement?  Titillation?

Perhaps this is Smith's view.  It is certainly an intelligible view, no doubt one that would win plaudits in Rupert Murdoch's various media outlets.  But I actually don't think it is Smith's view, since his own work is of as little interest as most genuinely jurisprudential work, and yet I venture he does not think it unworthwhile.

Smith's view is cruder, depending both on misrepresentations of legal philosophy and a certain kind of religious dogmatism.  The contours of his view are clear by page six of his essay; I will comment on a few representative passages.

Passage #1 (from page two):

A typical contemporary account explains that natural law maintains, while legal positivism denies, that there is a necessary connection between law and morality, or that a moral component is required for something to count as "law."...

But on this account, alas, the classic debate [about the nature of law] can come to seem quite pointless.  After all, we can all agree-can't we?--that governments exist, that they issue directives and enact rules, that there are methods or criteria by which officials determine what the directives and rules are.

Assuming we can also agree that such facts about official behavior can, together with some additional ones, constitute law and a legal system--and even when the legal system is "inefficient, unfair, or downright oppressive" (as Smith puts it)--then we have not shown that one way of framing an old dispute is "pointless," rather we have acknowledged that the positivist account is correct.  There is now, it seems to me, a real worry about what exactly the natural law theorist is affirming that anyone denies (and one of Dworkin's virtues as a stalking horse for positivism is that he does seem to want to opt out of the "agreement" Smith recommends); but that doesn't show that the debate that Smith characterizes rather crudely was "pointless":  it shows that it is now obvious to almost everyone which view is correct.  (Of course, there are better ways of stating the natural law challenge, though Smith, oddly, never gets to them.)

Passage #2 (from page 4):

How exactly do officials...go about determining what the law is, and what it means?  Is there in fact some master "rule of recognition," as H.L.A. Hart famously contended, and if so what is it and how does it work?  And how is meaning extracted from legal texts?  But once again, it is not clear that "jurisprudence" has any unique contribution to make to these debates.  On the retail level, lawyers and judges argue about such questions all the time.

This is surprising:  what judicial opinions address the question whether a rule of recognition is a necessary feature for the existence of a legal system, as Hart thought?  Lawyers and judges often have implicit views about how "meaning" is "extracted from legal texts," but they less often have systematic, reflective accounts of their implicit views or defenses of them--the latter being what one might expect a "jurisprudential" theory to address. 

Passage #3 (from page 5):

[C]lassical [natural law] legal thinkers from Aquinas to Blackstone typically...did say, in one way or another...that "nature" itself--the cosmos, and particularly human beings--have been created by deity and are subject to some providential scheme or law that transcends us....We can take Blackstone's statement as representative:

This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other....

At the time he made it, Blackstone's statement might have elicited yawns, but someone of Blackstone's stature making a similar claim at an academic jurisprudence conference today would raise eybrows.  The claim would surely generate discussion and strong dissent--at least during the breaks between the formal sessions.  (I say that the statement would provoke dbate between sessions, and if made by someone of stature...the claim might not be cognizable at all under current academic conventions, and someone without stature making such a claim would risk being quietly dismissed as some sort of crank). 

Smith suggests that this theistic formulation of the natural law doctrine is "the classical version of the central question of jurisprudence" (p. 6), though, to be sure, he must be aware that leading natural law theorists like John Finnis, Mark Murphy, and Michael Moore do not advance any version of this claim in defending their natural law theories.   (Nor do they deny that there can be unjust laws, but we can put that issue to one side.)

It is true that theorists no longer advance claims like Blackstone's outside of sectarian contexts, and for obvious reasons:  they are of no interest unless true, and only the sectarian believers deem them to be true.  Certainly, in principle, one might try to give arguments establishing the existence of God and establishing his role in laying down fundamental maxims of behavior for human beings.  But this does not seem to be the debate Smith has in mind.  His objection appears to be that "current academic conventions"--and the currrently "boring" jurisprudence he derides--would not countenance the bald version of these claims.

What does Smith mean by "current academic conventions"?  He writes (and this is the final passage I will quote, from page 6):

[U]nder modern conventions, academic discussion is supposed to be carried on in secular terms, meaning, for the most part, the terms of scientific naturalism and of common sense everyday experience.  In attempting to explain som ehappening or phenomenon, it is perfectly permissible for modern scholars to refer to religion--or to people's beliefs in God.  By contrast, actual appeals to God, or to anything that looks metaphysically suspicious or exotic, are out of bounds.  As a result of this drastic narrowing of the range of admissible argument or explanation, claims or positions that would once have been framed forthrightly in theological terms now must be translated into more secular terms--or else abandoned.

Smith goes on to suggest (without any evidence, naturally) that "morality" has taken the place of "God" in contemporary discussions.  I'll put that to one side, in order to focus on the extraordinary passage quoted above.

I take it the "modern convention" of discourse in the post-Enlightenment world is that claims should answer to reasons and evidence, and that dogmatic appeals to authority--whether God's or Aristotle's--will not suffice to establish the truth of some proposition.  There is no doctrine of "scientific naturalism" accepted by contemporary participants in jurisprudential debate (Raz has even famously criticized Hart for the naturalism in the background of The Concept of Law), though certainly not everything is thought to count as a reason or as pertinent evidence.  Contemporary "academic conventions" aren't just picking on Smith's God or Blackstone's; Osama bin Laden's God is out too.  So, too, is my pet theory that positivism is true because I say so.  Also the view that nothing is law if it does not comport with the hidden lyrics on the Beatles' Abbey Road album.  Also it is not evidence that natural law theory is false that it gives my Uncle Bert gas.  And so on.

I'm not quite sure how to describe what makes these varoius boundaries of rational disputation hang together; and one must recognize, of course, that these boundaries are themselves always in dispute.  But it is really weird at the dawn of the 21st century, several hundred years after the scientific revolution and the Enlightenment, to find a professional scholar seriously suggesting that it constitutes a "drastic narrowing" of argument to not take seriously dogmatic invocations of the deity in intellectual inquiry.  What exactly would "argument and explanation" in Smith's world look like?  What would constitute a response to his imagined academic who stands up at a conference and invokes Blackstone's idea about God's law? 

Of course, we know what intellectual discourse looked like when dogmatic invocations of the deity were thought to constitute an argument.  And there is a reason those cultures and eras were not ones notable for their great number of intellectual insights and advances. 

Smith's extraordinarily silly article really could have been much shorter:  first, he could have acknowledged that he doesn't have the patience to try to understand contemporary philosophical debates about law; and second, he could simply affirm his belief in God and his preference for sectarian religious discussion--for "theology" as he quite correctly describes it in the passage above.  I am not against theology, though it does not interest me.  But I am against someone suggesting that the life of the mind must be reduced to his preferred theology.  That's just silly.  And if it were taken seriously, dangerous as well.

UPDATE:  Larry Solum, ever the nice guy, weighs in with the following:  "I actually think that much of the substance of Leiter's criticism of Smith's argument is more or less correct, but I find some of his over-the-top judgments about intellectual quality to be less than fully nuanced."  I'm not surprised Larry agrees with the substance of the criticism, but I'm less sure about what he deems "less than fully nuanced."  Maybe Larry means the judgment that this is "the worst jurisprudential article" of the year.  OK, I concede that was a joke meant to get people to visit my Legal Philosophy blog.  Smith's bad article has so much competition that it would require nuance far beyond my ken to distinguish which of the awful articles of a purportedly jurisprudential nature published in the last year is the worst.  But beyond that, if Larry concurs with the substance of the criticisms, then the intellectual judgments that matter all follow--or so it seems to me.  Scholarly debate--especially jurisprudential debate in law schools--demands more, not less, forthrightness about what is nonsense and what is not. 

Posted by Brian Leiter on September 27, 2007 in Bad Jurisprudence | Permalink


Despite his unfavorable (and in some respects, in my humble opinion, unfair) judgment, I sincerely appreciate Brian’s calling attention to my essay, and to some of the issues the essay attempts to raise. I’m sure I’m not alone in having had this sort of frustrating experience: you perceive that some debate is suffering from the absence of x– some perspective, some crucial fact– so you write a book or article trying to show how this is so, but your book or article provokes no reaction at all and the debate goes on as before. Brian’s post, it seems to me, presents the possibility of discussion and reflection on an issue that I think deserves attention.

I might put the issue in terms of a “loss of meaning” thesis. The thesis goes like this: some set of claims or beliefs or issues arose in a world or culture in which certain things were presupposed. Later, those presuppositions come to be forgotten or abandoned, and though people continue to debate the claims, beliefs, or issues, the conditions that gave them meaning and significance no longer obtain; so the debates come to seem empty or sterile– “playing with words but revealing nothing,” to borrow a phrase from Plato. I am hardly the only person who has detected such qualities in contemporary discussions in analytical jurisprudence. My argument is that the “loss of meaning” thesis helps to explain this condition (and much else in contemporary intellectual life). I may be wrong, of course, but it seems to me that the argument is worth having. Of course, even if the “loss of meaning” thesis is right, it hardly follows that we should all start talking theology, as Brian apparently (mis)understands me to contend. I am a theist, yes, but as for what ought to happen in law and jurisprudence, I am to be honest entirely uncertain.

With respect to the particular essay Brian criticizes, I can of course only hope that people will read the essay and decide from themselves whether he has fairly represented it and whether the arguments made there have any cogency. As the abstract indicates, the essay was written for a general audience symposium, subject to severe word restrictions and a stern admonition that citations be kept to a bare minimum, so there is a great deal of valuable work that could not be discussed in the essay. A much longer version of the argument is presented in my book Law’s Quandary (which as Brian correctly implies, has not been a best seller but has recently become available in a more affordable paperback edition).

Posted by: Steve Smith | Sep 10, 2007 9:53:04 AM

I agree with Steve that it should be left to others to adjudicate the aptness of my criticisms. And Steve fairly points out that he has developed these themes at greater length in his book "Law's Quandary." I am not more sanguine about the lengthier version of his story, and would refer interested readers to this informative review:

Posted by: Brian Leiter | Sep 10, 2007 10:11:29 AM

"Dogmatic invocation" seems to be a long-winded way of saying, "because I said so". It can be used by any leader, one who controls the vision of or access to God or state power, to protect his or her decisions from challenge.

We needn't look to pre-Erasmus Europe for examples of it; we have plenty today. Mr. Bush uses that "reasoning" all the time. If he doesn't invoke it directly, when speaking of his conversations with God rather than his earthly father (does either listen?), he invokes it indirectly under the guise of i) letting "the generals" decide (he doesn't); ii) it's a state secret (to protect whom, exactly?); or iii) "we're not interested in being popular". Its frequent use is, perhaps, one reason he rarely appears before audiences whose paychecks and careers he doesn't command, and why his legal arguments for his most contentious actions, such as torture and domestic spying, are state secrets.

Orwell's maxim that he who controls the present, controls the past, and he who controls the past, controls the future is equally true if one substitutes "God" for the "past". Both have the consequence of enabling earthly power, which leads inevitably to Acton's observation about power's propensity to corrupt.

Rational criticism - and the assertion of the individual's power to use it - has been the best mechanism so far devised to limit that corruption, which is what makes Smith's apparent desire to resort to heavenly explanations for earthly events so distressing. Who decides, after all, whose prayers are worthy of hearing or answering and how do we know that? Is it only those who have paid the most for their indulgences?

Posted by: dpk | Sep 10, 2007 2:49:31 PM

I'll confine myself to Brian's remarks on appeals to theism in jurisprudence, or any other philosophical field.

First, I think Brian errs when he elides the distinction between appeals to propositions regarding God's existence and attributes and appeals to authority. That's just a mistake. One can invoke theistic premises without ever making an argument from authority. Philosophers manage to do this all the time.

Second, it is a mistake to think that all appeals to God's existence and attributes need to be dogmatic, or even need to categorically assert God's existence at all. It is a sign of healthy philosophy that well-done work that begins 'What if X is true?' — where X is a thesis upon which there is no philosophical consensus — is welcomed both by those who accept X, those who deny it, and those who have no settled view. By no reasonable notion of 'consensus' is God's nonexistence a matter of consensus in philosophy, nor is God's existence at all an outlier view. So there should be a place in jurisprudence (and other fields in philosophy) for asking 'What difference to jurisprudence does it make whether God exists?'

Third, even if Philosopher X does dogmatically assert God's existence as a premise in an argument, the dogmatic assertion, or assumption, of contentious premises in philosophical arguments is as common as air. One is always free to do to appeals to God's existence what one does to every other such dogmatic assertion — mentally transform the argument into 'If p is true, then...', and evaluate it given the hypothesis.

A final, small point. I doubt that Finnis would accept your characterization of his view. He did, after all, write a final chapter of Natural Law and Natural Rights called 'Nature, Reason, God,' which even after Hart's suggestion he was unwilling to move to an appendix to the book.

Posted by: Mark Murphy | Sep 13, 2007 1:07:11 PM

"The thesis goes like this: some set of claims or beliefs or issues arose in a world or culture in which certain things were presupposed. Later, those presuppositions come to be forgotten or abandoned, and though people continue to debate the claims, beliefs, or issues, the conditions that gave them meaning and significance no longer obtain"

Sounds rather like "After Virtue."

Posted by: will | Sep 17, 2007 8:50:53 PM

Sorry that I took awhile to approve some of the recent comments--they got lost in my in-box. I agree, I think, with most of Mark Murphy's claims, though they have nothing to do with what Steve Smith seemed to be proposing. (I'm more skeptical about Mark's third point, but we'd have to consider a lot of evidence to sort that out.)

Will is right that Smith's claim has a resonance with MacIntyre's. I'm not sure whether that is supposed to count *in favor* of Smith's claim though!

Posted by: Brian Leiter | Sep 18, 2007 11:45:23 AM

Upon first reading Brian’s lengthy and severely critical post about my brief essay “Jurisprudence: Beyond Extinction,” I was not inclined to give any sort of detailed response. For one thing, any real disagreements seemed too complex for blog treatment. For another, Brian’s post initially seemed to me quite thick with mockery but exceedingly thin on real substantive criticisms– or at least of criticisms I could recognize as actually directed at the position expressed in my essay. I frankly thought that a reader of Brian’s post would take away from it virtually no idea what the main claims of my essay even were, but would instead suppose that I was advancing a proposition (“Let’s talk theology”) which my essay quite plainly did not endorse. So it seemed better just to urge readers to “read the essay and decide for yourself.” The essay is short, as I said: reading it shouldn’t take more than about ten minutes.

It seems, though, that in his comment on Larry Solum’s somewhat apologetic explanation of his “highly recommended” judgment (and also in more recent exchanges conducted outside the blogosphere), Brian has defended the harshness of his own judgments by asserting that objectors have not responded to his substantive criticisms. And on second reading, I agree that Brian’s post raises more important substantive issues and real disagreements than I at first perceived. It remains true that many of these call for more ample discussion than the blog medium readily allows for. Still, it might be helpful, and even conducive to valuable discussion, to try briefly to highlight where the most fundamental disagreement lies, as I see it.

Brian’s first and perhaps most energetic criticism is of my argument that discussions at the core of jurisprudence (typified by the long-standing “natural law vs. legal positivism” debate, and also the “exclusive vs. inclusive positivism” debate) have lost much of their interest, or their point. Some have found this criticism puzzling (and I initially found it puzzling-- and a bit strange, as when Brian asks whether my books have sold as many copies as Hart’s), because I wasn’t saying anything especially novel or provocative here: there seems to be a virtual consensus that these debates do not currently have much ongoing interest. But upon reflection, I believe Brian points to some crucially important questions, deserving of more careful discussion.

Some of these questions go beyond what I can discuss here, having to do with how we should conceive of the nature and purpose of intellectual inquiry– whether we should keep ourselves as first person and human inquirers clearly in view, how intellectual inquiry does or should connect up with human life generally, and so forth. But a more immediately relevant difference is raised when Brian reacts to the following passage. Brian quotes me:
But on this account, alas, the classic debate [about the nature of law] can come to seem quite pointless. After all, we can all agree-can't we?--that governments exist, that they issue directives and enact rules, that there are methods or criteria by which officials determine what the directives and rules are.
He then contends that if we can all agree on these facts, the conclusion is not that the classic natural law vs. positivism debate is pointless, but rather that “it is now obvious to almost everyone which view is correct.” In other words, our ability to agree “that governments exist, that they issue directives and enact rules, that there are methods or criteria by which officials determine what the directives and rules are” merely demonstrates that legal positivism has won.

Well, here I think we do have a meaningful disagreement that may lie at the core of Brian’s adverse reaction to my essay. And I suppose that Brian’s conclusion (that legal positivism has won), which he takes to be “obvious,” is one possible judgment. But in that case, I think he is being (uncharacteristically) timid. After all, these particular matters that we can agree on now have not just recently become apparent: anyone with eyes always knew those things. So it is not “obvious” only now or only recently that legal positivism has won; it should have been obvious all along, and people who couldn’t see that (Aquinas?, St. German?, Coke?, Blackstone? Lon Fuller?, Michael Moore?, Mark Murphy?) were and are just unaccountably obtuse.

In drawing his conclusion, Brian is in good positivist company. John Austin famously thought he could demonstrate that the natural law view under which an iniquitous command is not fully “law” was “stark nonsense” by simply pointing out that someone breaking such a command would be hanged. But of course no sane person who has lived in this world for more than a few minutes ever doubted that people are sometimes punished for disobeying unjust commands. So it is just possible that people (Austin, Leiter?) who think the matter can be so easily and decisively resolved– that the conclusion is “obvious”-- are missing something.

But what are they missing? The answer I suggest in my essay is perhaps not one that natural law proponents today, like John Finnis, would typically give. But my suggestion is that we have inherited many of our views and claims and debates about law from an older world in which such matters were conceived and discussed on the basis of metaphysical or theological presuppositions that we no longer purport to hold, that such claims and debates may well have been vitally meaningful on those presuppositions, and that misunderstanding (like Austin’s) or loss of interest and point (as nearly everyone notices today) can occur when the claims and debates are considered outside the context that gave them meaning. This is the “loss of meaning” claim that I noted in my initial comment on Brian’s post. It is very much in the vein of Alasdair MacIntyre’s After Virtue, as one commenter noted; and indeed, MacIntyre is cited in my essay.

Now Brian may not think highly of the MacIntyre thesis, as his response to the comment suggests. Fine, but does he think this interpretation of our situation is so “extraordinarily silly,” to borrow a phrase, that it is not worth considering? (If so, some readers might find a different application for his harsh judgment.) But in any case, I would respectfully suggest that a lengthy and severely critical post ought at least to inform readers that this is what the essay’s central claim is. Instead, later in his post, Brian quotes a quotation from the essay in which Blackstone asserts that divine law is the basis of human law, and Brian somehow infers from this historical claim that I am recommending that jurisprudential discourse today ought to be carried on in terms of my “preferred theology.” I honestly cannot understand how an even moderately careful reader could have read the essay to be advocating this, particularly in view of the essay’s highly (and even disappointingly?) open-ended, ambivalent, non-prescriptive conclusion. (If Brian knows what my “preferred theology” is, incidentally, it would be kind of him to tell me, since I have been trying to figure that out for years.)

There are of course other disagreements, other statements made in Brian’s post with which I emphatically disagree (his sweeping and disparaging characterization of pre-Enlightenment thought, for example), and other respects in which I believe Brian’s post does not succeed in accurately representing my essay. (Once again, the essay is very short, and written for a general audience, so readers are invited to read it and judge for themselves.) But in any case, I hope that what I’ve said here may indicate what the central disagreement seems to be. And given my view that this disagreement marks an issue of tremendous interest and importance, I hope as well that this little and sometimes less than civil exchange might contribute to stimulating further discussion of that issue.

Posted by: steven d. smith | Sep 27, 2007 8:35:27 PM

(1) I am happy to accept at face-value Steve Smith's declaration that he does not want to replace philosophical inquiry into law with theology. I do remain puzzled, however, why he would have referred to the gradual post-Enlightenment exclusion of "appeals to God" as a "drastic narrowing of the range of admissible argument or explanation," as opposed to, for example, a significant intellectual advance beyond religious dogmatism? Steve Smith does not contest the accuracy of my quotation from his article. He may be unhappy that I read it (carefully) and commented on it, but there it is.

(2) Contrary to Steve Smith, there is no "virtual consensus" about the the status of debates about natural law vs. positivist accounts of the nature of law. Finnis's methodological argument that one can not have a theory of what the law is without first saying what it ought to be has been given new life by Stephen Perry's reworking of it over the last dozen years; Murphy's idea of practically unreasonable law as a defective instance of its kind deserves discussion and response; and Dworkin, of course, has continued to press arguments against legal positivism, including one (the argument about explaining "theoretical disagreement") that has even attracted sympathetic comment from positivists. My own view is that these arguments don't work, but that is my own view: there is no "virtual consensus" in the field.

(3) I do not take it to be "obvious" that legal positivism gives the correct account of the nature of law (even bracketing my general skepticism about the intuition-driven methodologies at work). What is "obvious" is that if we "agree" to all the things Smith says we should "agree" to (which I quoted), then that is tantamount to conceding the positivist's view. As noted in (2), there are other argumentative routes for the natural law theorist, though Smith's essay has little or nothing to say about them. And that is a significant omission in the context of an essay declaring a field "extinct." It suggests the judgment is predicated on ignorance, or lack of comprehension, rather than scholarly insight.

(4) I do not think the MacIntyre thesis is "extroardinarily silly," though I don't find it very compelling or convincingly developed by MacIntyre. I do find the actual content of Steve Smith's essay which I discussed (and quoted) extraordinarily silly: its anti-intellectualism, its mischaracterization of jurisprudential debates, its posture that something was lost when religious dogmatism was removed from intellectual life, and so on. Steve Smith's best defense is that the essay was short and superficial. I'm not sure length and breeziness excuse the kinds of mistakes I raised, but some readers may take a more charitable view on that score. If my excorciation of this terrible essay will make others think twice before making sweeping claims about issues it is not clear they understand, so much the better.

Posted by: Brian Leiter | Sep 28, 2007 10:40:05 AM

On the off-chance that anyone is following this little tiff, let me very briefly respond to Brian's points:
1. Brian did indeed accurately quote my statement that the exclusion of theological reasons constituted a "drastic narrowing of the range of admissible argument or explanation." Does he disagree? Of course, "narrowing" can be a bad or a good thing. Narrowing one's perspective is usually a bad thing. Narrowing my waistline would be a good thing. What I offered was a description of a historical change (one that Brian obviously approves), but it hardly follows (nor did I contend) that we should (or could) return to theology-based jurisprudence. Either Brian did not read the essay carefully in this respect, or else he chose not to represent it accurately.

2. My essay affirmatively asserted that interesting work is occurring on both the "natural law" and "positivist" sides of the classical natural law v. positivism divide. I myself find some of this work very interesting. What the essay said was that the classical natural law vs. positivism debate about the "what is law" question has lost much of its point and interest.

3. I do not understand this point. The first and second sentences seem to me to contradict each other, but most likely I am simply not understanding Brian's point here.

4. I am not sure in what my "anti-intellectualism" is supposed to consist, and hence am not sure how to respond to this charge (or whether I should want to respond). Brian seems here to reassert his claim that theological discourse did or inherently does amount to "religious dogmatism." I had thought that Mark Murphy had succinctly explained, in his comment above, that Brian is simply and seriously mistaken about this, and that Brian had granted Mark's points. So I remain uncertain about what Brian is saying here.

Posted by: Steve Smith | Sep 28, 2007 4:08:11 PM

In reverse order:

4. "Anti-intellectualism" was a reference to your derisive and dismissive attitude towards much work in legal philosophy, work that you misunderstand as involving mere "word play" and that you say can only interest "the incorrigibly academic" (was "incorrigibly" meant as a compliment here?). You are not alone in trafficking in this kind of anti-intellectualism, which really is unbecoming someone whose work is as "incorrigibly academic" as anyone else's. That is one reason I am making an issue out of it: as you know, I raised the same issue about Dworkin's recent desperation move of engaging in ad hominems against positivists.

Murphy's remarks, as I noted, have no bearing on the Blackstone quote you employed, which would indeed be dogmatic if offered at a legal philosophy conference. (On one point, I should have been clearer that I disagree with Murphy: there is pretty clearly a consensus about the non-existence of God among philosophers, outside a rather discreet coterie of quite explicitly religious philosophers. Some of these folks are rather good philosophers [Murphy included], but not even any of them would make a comment like Blackstone's which you used as your illustration.)

3. If everyone agreed to the doctrines you say everyone agrees to, then that would obviously be tantamount to saying that everyone endorses legal positivism. But I do not think that is true, and so do not think that it is "obvious" that legal positivism is correct (though the arguments of its remaining opponents are not great ones, but that's another matter).

2. Nothing further to say about this.

1. We can pretend, if you want, that there is some ambiguity about what you meant by "narrowing" in the context of your essay. No objective reader is going to be uncertain, I suspect (certainly none of the readers I heard from were uncertain, but maybe they weren't objective). He or she will notice that the "narrowing" is held in place only by "academic conventions," not rational considerations; that the debate, once narrowed, is "soporific" and that an "ambitious and provocative contention" (namely, Blackstone's) has been lost to us. But, per your original comments on this thread, perhaps it is best to let readers decide for themselves.

By the way, though I didn't raise this point in my initial posting, you also misuse the Patterson quote on the first page of your lecture: Patterson is not, as I recall him, endorsing the view that jurisprudence is "close to moribund," he is lamenting (correctly) that until the last 10-15 years or so, jurisprudence has not been well-informed by developments in philosophy of language, metaphysics, and epistemology.

Posted by: Brian Leiter | Sep 28, 2007 4:24:50 PM

The accusation, it seems, has changed pretty dramatically. Now the problem is not that I advocated that jurisprudential discussion be carried on in theological terms: I didn't. The problem, rather, is that I have a more favorable view of pre-Enlightenment, theologically-informed discourse than some (such as Brian) do, and hence I think that something of real value was lost with the "narrowing" of discourse. I don't believe I argued for that judgment in the essay, and nothing in the essay depends on any such judgment, so far as I can see. Still, if this is what I'm suspected of, I freely confess. And I confess as well to any "anti-intellectualism" or "religious dogmatism" that this judgment entails. So, with this confession, maybe we've achieved closure in this dispute?

Posted by: Steve Smith | Sep 28, 2007 7:44:37 PM

I guess it seemed to me that (1) a lot depended on that judgment, and (2) the core "accusation" remains the same, namely, that you have misrepresented or misunderstood the current state of jurisprudence, but readers will decide the matter for themselves. I am happy to consider the dispute closed.

Posted by: Brian | Sep 28, 2007 8:29:54 PM

The comments to this entry are closed.