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“Normative Jurisprudence” and What Law Professors Should Do

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4 Responses

  1. Heidi Li Feldman says:

    Hi Brian. Thanks for starting us off. I agree with you that not every person skilled and interested in philosophical analysis (or any other discipline) must necessarily serve the cause of social justice. But I disagree that those scholars trained as lawyers and those lawyers who chose to engage with social justice have nothing unique to contribute to that cause. Consider your own examples: conceptual analysis is inappropriate to determining the nature of law, proving the incoherence of legal normativity, etc. One cannot perform these tasks successfully without a rich sense of some actual body of law – otherwise one will not be able to identify law as the field not amenable to conceptual analysis or that the normativity one claims as incoherent is particularly and distinguishably legal. My point is that law, like medicine or architecture, is a discrete enterprise (yes, with overlaps with other enterprises, but discrete nonetheless) and that having “inside” knowledge of the enterprise will yield different conclusions, different questions, different projects than those yielded by those who bring other sorts of knowledge to the table. That does not mean that everybody with “inside” knowledge of the law should focus on legal justice. But it does mean that prima facie those with inside knowledge have something unique to contribute.

  2. I have some examples of what lawyers and law professors concerned about justice and the common good might think about and act upon here: http://ratiojuris.blogspot.com/2012/06/toward-manifesto-of-inspiration-for.html

    As for conceptual analysis, legal theory, and philosophy of law, I hope those involved in such work would consider the considerable virtues of viewing their enterprise within frameworks of “applied” and “therapeutic” philosophy as introduced here:* http://www.religiousleftlaw.com/2012/06/the-therapeutic-model-of-philosophy-philosophy-as-applied-philosophy.html

    This would involve, at the very least, explaing in public fora to educated citizens (in the spirit of John Dewey and much like Jurgen Habermas has done) why and how philosophical and theoretical discussions of the law have some bearing upon the pursuit of justice and the common good in democratic polities. This involves fashioning a rhetoric that is different from that used in communicating with one’s peers in the profession and helps one ascertain if indeed one’s intellectual endeavors can be fit into a model of morally and politically relevant “intellectual responsibility” aligned with the individual and collective pursuit of justice and a democratically guided common good.

    * See too this follow-up post: http://www.religiousleftlaw.com/2012/07/analytic-philosophy-the-big-questions-and-rhetorical-sensitivity.html#comments

    I look forward to the rest of this symposium (although I was unable to get a copy of the book beforehand).

  3. erratum: “explaining in public fora….”

  4. Orin Kerr says:

    I haven’t read the book yet, so my reaction has to be tentative. But at least from its description here, I tend to agree with Brian Bix.

    More broadly, I wonder how much of the enthusiasm for law professors pursuing their vision of the common good is premised on the understanding that law professors tend to have a particular set of political views that the enthusiast shares. Given the wide disagreement as to what policies achieve the common good, it’s easier to want a group of people to work towards the common good if you expect to agree with that group’s vision.