January 20, 2008
Cardozo on the Tasks of Philosophy of Law
This is Benjamin Cardozo from The Growth of the Law (Yale University Press, 1924), p. 24-25:
A philosophy of law will tell us how law comes into being, how it grows, and whither it tends. Genesis and development and end or function, these if things, if no others, will be dealt with in its pages. To these it will probably add a description of the genesis and growth and function, not only of law itself, but also of some of those conceptions that are fundamental in the legal framework.
Most of these tasks are not--at least not at all obviously--part of the philosophy of law today, in part because it is not obvious that philosophers have the requisite skills and knowledge to address these potentially vast socio-historical issues. This is, no doubt, because the reference point for what counts as "philosophy" has changed from Cardozo's day to our own. Cardozo's most frequent philosophical references are to James, Windelband, Bergson, and Dewey. Has anyone even read Windelband? (I have heard the name, but I have not read him.) It is a foreign philosophical climate, now forgotten (or should we say vanquished?), perhaps rightly so, perhaps not. To be sure, some still read and teach bits of James and Bergson and Dewey, but they do not define the "climate" of philosophical opinion or inspire the "tasks" of the discipline.
"how [it] comes into being, how it grows, and whither it tends..."
Would these inquiries constitute a "philosophy" of *anything*?
Posted by: Q the Enchanter | Jan 20, 2008 8:09:57 PM
I agree, with the exception of Cardozo's last task. "Whither [the law] tends", i.e., its "end or function" has remained a live topic among legal philosophers over at least the last forty years. Most leading legal philosophers have had something to say about it (e.g., Raz, Fuller, Dworkin, Finnis, Coleman, Leiter(!), Green, Gardner), even if it's to argue law has no (essential, distinctive) function. Certainly there are certain ('social') functions the law serves which are amenable to socio-historical investigation. Perhaps Cardozo had those in mind, in which case Brian's assessment is well-taken. But there are other alleged functions (what Raz has called law's 'normative functions') that have nothing to do with socio-historical events. For example, *how* law guides the conduct of its subject, and how law's guidance might differ from normative guidance in other contexts, are, I take it, still live issues that fall squarely within philosophy.
Posted by: Michael Sevel | Jan 21, 2008 5:44:05 PM
A few comments: first, it seems to me that Cardoza is using the word philosophy somewhat idiosyncratically in this excerpt. Though "philosophy" as a word that means to mark a discourse and a practice has a complicated etymological history, he seems to be using it to mean something akin to the word in the phrase "a philosophy of life." It indicates "a full account" rather than the type of ratiocination we usually think of when using the word. And as you say, philosophizing has changed: "philosophy" was a larger bag to hold a lot more things before the full-force professionalization that allowed one to have, among other things, philosophy departments. (Just look at what "moral philosophy" encompassed in the mid-nineteenth century, not to mention centuries further back.)
The second comment is only to point out that Dewey, Bergson, and James (though not Windelband?!) are regularly read in universities today, alongside Cardoza, Oliver Wendell Holmes, Richard Rorty, Hilary Putnam, and the list goes on. But they are read in English Departments in courses on American Literature, American Culture, and Pragmatism. The philosophical climate seems very temperate to me, but then again I teach in an English Department. I could see a good case being made for incorporating some of the genealogical and social/cultural/historical questions into framing narratives for the philosophical tasks at hand within contemporary philosophy of law.
Posted by: Tyler Curtain | Jan 24, 2008 5:14:33 PM
I've read portions of Windelband's multi-volume series, A History of Philosophy, which I used in my philosophy studies in undergraduate and graduate school. I found his survey of philosophers' work to be useful as summaries, but I haven't read any of his non-historical work in philosophy.
Posted by: Adam Mossoff | Jan 31, 2008 11:42:56 AM
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