The Worst Jurisprudential Article of the Year?

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

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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.