A Modest Defense of Steven Smith's Little Essay

Posted by Jeff Lipshaw

When I saw Brian Leiter's teaser title "The Worst Jurisprudential Article of the Year?" with nothing but a link to the "winner" (the complete discussion is on our sister blog "Brian Leiter's Legal Philosophy Blog"), I have to admit a moment of "pang" wondering if it would be something I wrote.  But it really should be qualified by what I suspect is the sample set:  jurisprudential articles written by people who are moderately important in the field.  Thus disqualifying me!

Brian's target is a thirteen page essay by Steven D. Smith at San Diego (right), the author of Law's Quandary, a book I very much enjoyed for its probing of the "beingness" or ontology of the law.  In short, Law's Quandary asked this question:  if we are all now legal realists, understanding the instrumental aspect of law, and positivists, understanding that law is what courts, legislatures, and other authorities say it is, why do lawyers still argue about the results as though the LAW were immanent and yet simply to be discovered and applied to the present dispute?

I had not read the essay, but did quickly after reading the review.  Perhaps I was inclined to be more charitable because Law's Quandary gave me pleasure, because the new piece was short, and because my own view of short thought pieces posted on SSRN is that they are not papers, but pieces in the spirit of Brian's introduction to his blog:  "'thinking out loud' in the sense that they won't be polished or heavily revised, and thus no doubt replete with errors and misunderstandings."  Indeed, the line blurs between a very thoughtful blog post, and a quick thought piece on SSRN, and spending too much time on which is "scholarship" is probably just the kind of angel-counting we'd all like to avoid.

So here is my more charitable take on what Professor Smith had to say, with a nod to what I think made Professor Leiter uncomfortable (although he certainly doesn't need me to help him do that!)  Outside of legal philosophy, there is a sense among some, similar to what Professor Smith described, that analytical philosophy of the last century is arid and fails to get at what attract many to philosophy in the first place - addressing ultimate questions.  I think that's the simple point being made in the piece, and it is a call for legal philosophers to, in the words of Holmes' flourish:  "connect...with the universe and catch an echo of the infinite."  Just because we are lawyers does not exclude us from the human condition of self-reference, and making sense of the world.  Coming from a quarter century of practice, I don't think a little reflection on meta-issues is such a bad thing every once in a while - particularly when one is sorting through significant pragmatic issues of the legal and the ethical.  No less a legal philosopher than Martha Nussbaum (Flawed Foundations:  A Philosophical Critique of (a Particular Type of ) Economics, 64 U. Chi. L. Rev. 1197, 1214 (1997)) had this to say about the Posnerian rejection of moral philosophy:

Aristotle thought that there was conceptual progress in political thought. For when we sit down and sort through all the good and bad arguments our major predecessors have made, we will learn a lot: “Some of these things have been said by many people over a long period of time, others by a few distinguished people; it is reasonable to suppose that none of them has missed the target totally, but each has gotten something or even a lot of things right.” Furthermore, we will also be enabled to avoid their errors. Finally, perhaps, we will ourselves make a little progress beyond them. Aristotle also noticed, however, that the passion for science and simplicity frequently lead highly intelligent people into conceptual confusion and an impoverished view of the human world. So he did not think that progress was inevitable, and one of his great arguments for reading was that it could remind us of conceptual complexities we might otherwise efface, in our zeal to make life more tractable than it is. 

Science does not have to be impoverished; in fact, it must not be, if it is to deliver perspicuous descriptions, adequate predictions, and, perhaps, helpful normative recommendations. But Law and Economics is currently still somewhat impoverished. It is impoverished because it did not proceed in the way that Aristotle recommends, sitting down with the arguments of eminent predecessors to see what can be learned from their years of labor. Let us hope that this process will soon begin. There would seem to be no better place for it to begin than in Chicago.

A piece from my friend Susan Neiman, (left) author of Evil in Modern Thought, director of the Einstein Forum in Potsdam, and most recently a member of the Institute for Advanced Study School of Social Science in Princeton, underscores both the invitation to do a little philosophizing and Professor Leiter's concern about it.  She relates this from a fellow grad student:  "Asked on a tour of prospective graduate programs why he'd chosen philosophy, he answered 'Well, like most people I read Nietzsche and Sartre in high school and just wanted to go on.'  His interlocutor, a hard-nosed defender of classic analytic philosophy, responded,'Yes, but most people grow out of that.'"  Her point was that the traditional philosophy curriculum causes "many students simply [to] take up subjects like history or politics or literature, which have clearer connections to the questions about meaning, and how to live, that sent them to philosophy."

Nevertheless, and this is where I think Professor Leiter has a point, it's a walking a fine line to focus, particularly in teaching, on the search for meaning, and not propose an answer that has the sniff of dogmatism to it.  Professor Neiman says: "George W. Bush's faith that Providence will right what all the odds say will go wrong is a terrifying example of the sort of thing that gave Providence a bad name.  If we reject such faith - or even more thoughtful versions of faith tout court - how can we ask our students to take 18th century appeals seriously?"  I was uncomfortable with the suggestion at the end of Law's Quandary that the hypothetical author of the law is really an Author, and Justice Scalia, in his First Things review of the book, chided Professor Smith for beating around the bush; in so many words, "just say the Author is God!"

To summarize.  I did not take Professor Smith's piece as a work of jurisprudential scholarship as much as a cri de coeur about what might meaningful in the field of legal philosophy.  That seems to me raises a valid point.  On the other hand, I don't have much of an answer for somebody who insists that he or she has an insight into the mind of God on the specifics of His or Her personal intervention into the shaping of the positive law.  I don't think that was where Professor Smith was headed, but I do understand concerns around making this a religious exercise, rather than a philosophical debate.