“Normative Jurisprudence” and What Law Professors Should Do
posted by Brian Bix
(First,by way of full disclosure: I am one of the co-editors (along with William Edmundson) of the Cambridge University Press Series in which Robin’s book appears. Connected with that role, I had a small part to play in asking Robin to write the book for the Series, and in offering comments on the text prior to publication.)
Normative Jurisprudence surveys three prominent approaches within legal theory: natural law theory, legal positivism, and critical schools of jurisprudence (including American legal realism, feminist legal theory, and critical legal studies). Robin argues that these approaches all, at one time or another, have argued for, and offered philosophical grounds for, significant social change, but that they have all fallen away from that proper path. She holds up as examples of what theorists should do, Jeremy Bentham, who combined important work on abstract moral theory with crusading writing seeking legal and political reform, the American legal realists, whose jurisprudential work was combined with an agenda for legal and political change that they helped to realize in the New Deal, and John Finnis, whose modern work on Natural Law theory (e.g., Natural Law and Natural Rights (Oxford, 1980)) focuses on the importance of the common good, and a detailed argument about what it requires. To these role models, Robin contrasts the dry debates in analytical legal philosophy (mea culpa!), the cryptic postmodern writings of modern Left theorists (here Robin joins Martha Nussbaum and Terry Eagleton in suggesting that postmodern theorists have done more to undermine social reform than to support or motivate it), and the thin views of the common good in the secular and process-focused natural law theories of Ronald Dworkin and Lon Fuller
I think Normative Jurisprudence is a marvelous and important book. Like most books of its stature, it raises significant questions for further discussion. The one I will focus on relates to specialization and expertise in the legal academy.
One can take it as a given that individuals should work for social justice, and that this is true (other things being equal) whatever one’s training, career, or position. The question is whether there is something special about academics, legal academics, theorists, or legal theorists, such that we should expect more from them, perhaps because they have special relevant expertise. (Most of the writers for and readers of Concurring Opinions are law professors; perhaps we could begin by asking ourselves what special role we think we have (individually, or collectively as law professors) in relation to matters of policy and justice.)
Speaking as someone who writes in legal theory, but who has never played a prominent role in social reform, I feel a need to respond to Robin’s critique. I would argue that what most analytical theorists do best is analysis, and they (we) have no special expertise relating to advocating for social change. I do not think that analytical work should only be done if it can be in the service of fighting injustice (though when it can serve that cause, all the better). Similarly, critical theorists may have brilliant things to add to the discussions of the social construction of ideas and practices, and perhaps should offer those ideas even if they have little effect on the movement towards social justice (and even potentially a slight negative effect).
I see little reason to think that law professors (qua law professors) have any special insights about what the best society or most just world looks like, or what the best way is to get us there. Law professors may have some expertise on the distinctive benefits and problems of legal reform: what has tended to work well and less well in attempting reform through the law, the unintended consequences that can follow from trying to change behavior through legal rules, and so on. However, this is a limited (if still important) piece of the large and complex social justice puzzle.
There have of course always been law professors who were also great figures in legal and social reform and significant public intellectuals (Catharine MacKinnon is one obvious name that comes to mind). However, most of us continue to chip away on a smaller scale on matters closer to our training: doctrinal scholars do doctrine, and theoreticians do theory of various kinds — perhaps showing that conceptual analysis is inappropriate to determining the nature of law, proving the incoherence of legal normativity, explaining the true strengths and limits of analogical reasoning within law, and so on.
I join Robin in celebrating those people who have been able to construct theories that have played key roles in legal and social reform, and I join her also in encouraging those among current academics who have the potential to be the next Bentham or MacKinnon to work towards that goal. However, I remain doubtful that law professors are generally, by their nature or usual skill set, those best placed to be at the forefront of reform movements.
October 21, 2012 at 2:26 pm
Posted in: Jurisprudence, Legal Theory, Symposium (Normative Jurisprudence)
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Responses (4)
Heidi Li Feldman - October 21, 2012 at 6:32 pm
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.
Patrick S. O'Donnell - October 21, 2012 at 7:51 pm
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).
Patrick S. O'Donnell - October 21, 2012 at 7:53 pm
erratum: “explaining in public fora….”
Orin Kerr - October 21, 2012 at 8:12 pm
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.
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