Archive for the ‘Symposium (Normative Jurisprudence)’ Category
posted by Peter Quint
NORMATIVE JURISPRUDENCE, AQUINAS, AND THE COMMON GOOD
By Peter E. Quint
Chapter 1 (Revitalizing Natural Law) in Robin West’s remarkable Normative Jurisprudence gives rise to the following thoughts on Aquinas and the common good and on the implications that Aquinas’s discussion, more generally, may have for the search for the common good that Robin West proposes as a central jurisprudential undertaking.
Each of the following four sections, therefore, comments on aspects of Robin West’s call, in Normative Jurisprudence, for a jurisprudence that undertakes a search for the common good.
1. Aquinas and the Common Good.
There may be an ambiguity in Aquinas’s conception of the “common good”, and it seems worthwhile to focus on this issue and to try to untangle it to the extent possible. From time to time, Aquinas may have in mind two different conceptions of the common good –- generally not inconsistent with each other, but different nonetheless. One conception may be a religious common good, and the other a worldly common good, which comprises the more mundane goals of human life and human law.
In Q90 (II) Aquinas says, ”Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness” (citing Q2 (VII); Q3 (I)). Later in the same section (Reply Objection III), Aquinas states that “the last end…is the common good.” Thus the common good seems to be identified with happiness.
A problem may arise because Aquinas seems to endorse two different ideas of happiness. One idea is discussed in Q91 (IV) in which Aquinas notes –- in the course of explaining the necessity of Divine Law (scripture) — that “man is ordained to an end of eternal happiness, which is inproportionate to man’s natural faculty” -– certainly a reference to a religious form of happiness. Moreover, Q5 (V), cited at this point in Q91 (IV), refers to a clearly religious form of “perfect Happiness”.
Yet, Q5 (V) also refers to “[i]mperfect happiness that can be had in this life,” and it is certainly clear that in much of the “Treatise on Law” (Questions 90-97) Aquinas is talking about a secular common good. For example, in discussing whether human law may be interpreted broadly, or whether it must be interpreted according to the letter (Q96 (VI)), Aquinas gives the example of defenders of a besieged city who are being chased by an enemy outside the walls. Under these circumstances, may officials open the city gates to save the defenders, when there is a rule of human law stating that the gates must be kept closed? In answering this question Aquinas –- in this instance, as in many others — combines rigor of theory with a very sensible result. Under these circumstances, Aquinas states, “the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.” Assuming that the “common weal” is equivalent to the “common good” — indeed, Aquinas actually uses the phrase “common good” at an earlier point in the section — this answer certainly sets forth a secular conception of the common good, and it seems likely that it is this secular view of the common good that predominates in Aquinas’s discussion of human law.
Moreover, it is likely that the secular common good largely overlaps with a possible religious common good –- because following human law toward the secular common good generally constitutes an important step toward religious ends. Yet the religious form of happiness requires more than the secular form, and those requirements are covered largely by what Aquinas calls the Divine Law (scripture) because of human inability (in Aquinas’s view) to achieve religious happiness without specific divine assistance.
In Normative Jurisprudence, Robin West is clearly focusing on a secular view of the common good, which is indeed the view that most contemporary readers and thinkers on the subject might well adopt. Yet, to the extent that Aquinas is important for this enterprise, it may be worthwhile to distinguish the secular common good from a possible religious common good, because the religious common good might ultimately require certain abnegations and limitations on aspects of human flourishing that might be broadly inconsistent with our views of the secular common good which, in West’s view, we should be seeking to analyze and achieve.
These speculations also raise another question that eventually may have to be confronted in the search to be undertaken by jurisprudence for the common good: if religion is to be considered an aspect of the common good (as a reading of Finnis, for example, might suggest), and if religion requires an asceticism that may curtail certain other aspects of human flourishing (and therefore other aspects of the common good), how are these tensions or contradictions to be resolved?
2. Aquinas as Democrat and Egalitarian
a. Aquinas as Democrat
posted by Katharine Baker
Last year, after a panel on which we both spoke, a colleague from another law school approached me and asked “so what’s so great about relationship?” To which I – sounding in form, if not substance, mostly like a 7 year old – retorted “well, what’s so great about sex?” One of the many wonderful things about Robin West’s new book is that she implores us to elevate that childish exchange to a higher level.
By not having those richer discussions about what is good and bad about relationship, particularly marriage, and what is good and bad about sex, particularly consensual sex, progressives have failed to produce bodies of thought that could be immensely important to causes they care about. I would like to provide a bit more real world support for West’s arguments. My first example, which I’ll discuss today, implicates West’s discussion of natural law, and comes from Perry v. Scharzenegger, the federal case challenging the California’s Proposition8 (which dismantled the California Supreme Court’s determination that same sex couples had the right to marry in California). My second example, which I’ll discuss tomorrow, implicates West’s discussion of legal positivism and comes from the DOMA challenges percolating in the federal Courts of Appeals. Later, I will also suggest that the failure of academic elites to defend the institution of marriage is ironic at best and maybe hypocritical at worst. It leaves the less elite who often want marriage as much as elites do, without allies or arguments to help them secure it.
As for the what’s so great about sex question, which I will also talk about later in the week, I think there is an unnecessary chasm between those on the (far) right and those on the (far) left who think about the question. If, in any given locale, you lined up all the people who agree with EITHER John Finnis OR Janet Halley, your line would likely not extend around the block. (Though it would make an interesting cocktail party.) Why is no one in the middle writing about what is so great about sex? Justice Kennedy, among others, needs us.
Turning first to the what’s so great about relationship question, Judge Vaughn Walker, in his opinion striking down Proposition 8 in Perry laboriously analyzed the subject of marriage. One might think this a positive development, but the opinion reads strangely like an antitrust epistle. Judge Walker develops 80 findings of fact, including, most oddly, a finding of fact about what marriage is. Judicial findings of fact on what marriage is strike me as akin to findings of fact on what race is or what love is. Ask yourself, if you were a judge, would you feel comfortable defining race or love as a matter of fact? Race and love are not legal statuses so perhaps they are in a different category than marriage. But Walker did not and could not rely on marriage’s legal meaning because the legal definition of marriage was precisely what was contested. He needed to articulate what marriage was apart from law. He found, as fact, that “Marriage is the state recognition and approval of a couples’ choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” (Finding of Fact #34). As a legal matter, none of that is true. There is no legal requirement that spouses live with each other or stay committed (whatever that means) or share their property (unless they divorce).. What Walker is finding, as fact, is the collective social understanding, the non-legal meaning of what marriage is. He is doing what the natural law scholars do when they write about marriage: Explaining its existence and its virtues outside of, and at times in spite of, its legal definition. Judge Walker needed to do what West says we law professors should be doing much more of, but he had to do it mostly without us.
Walker’s one cite for Finding of Fact #34 (quoted in total above) is to historian Nancy Cott’s affidavit, filed on behalf of the plaintiffs. Taking nothing away from Nancy Cott, for whom I have tremendous respect and with whom I am quite sure I agree, one can see why the other side in this case could feel a bit outraged. How come Nancy Cott gets to define the meaning of marriage? The defendant’s witness, David Blankenhorn, who suggested that the meaning of marriage necessarily included a man/woman relationship, was dismissed as less credible than Cott because his work was not peer reviewed or as intellectually rigorous. Opinion at 948-49. The Harvard historian gets to define the non-legal aspects of marriage because she is more equipped to do so than the person without the academic pedigree, despite the fact that his understanding of marriage as gendered was shared not only by the majority of people in the country, but by the 52% of the people who voted for Proposition 8. Don’t we need a few more opinions, a bit more theory, some moral discourse on this subject before we say anything at all? Should the meaning of marriage really be reduced to a showdown between Nancy Cott and David Blankenhorn?
The 9th Circuit decided the appeal in Perry on grounds completely different than those that formed the basis of Walker’s opinion. They found that Proposition 8 violated the anti-animus principle found in Romer v.Evans. What Perry had not been a case challenging Proposition 8, but had been what plaintiffs’ counsel apparently wanted it to be, a straight claim that there is a federal constitutional right to same-sex marriage? Then the 9th Circuit would not have been free to do its neat, limited, highly-unlikely-to-be-precedential Romer analysis. It would have had to accept Walker’s odd articulation of facts or what . . . find them clearly erroneous? I don’t know many people who disagree with Finding of Fact #34. Indeed, I doubt David Blankenhorn disagrees with Finding of Fact #34. It is just laughably incomplete.
To be fair, Judge Walker had a very hard job. It is extremely difficult to talk about a right to marriage without a definition of marriage and the legal definition won’t do. Equality doctrine does not necessarily help avoid the definitional problem because if marriage is an inherently gendered institution, as Blankenhorn, the law, much history and a good deal of contemporary reality suggest, then it not clear that same sex couples would have an equality right to it. As I have argued elsewhere, while legally mandated marital gender roles died decades ago, marriage is still a deeply gendered institution: It facilitates, produces and reinforces gender roles. Many peer-reviewed acaedmics have documented that fact. Marriage is, in sociologist Sarah Berk’s phrase, “a gender factory.” Most heterosexual couples’ daily lives conform much more closely to traditional gender roles once they get married (and especially once they have children). Walker needed an understanding of marriage as not what the law said it was (male/female) and not as it appears to operate in most heterosexual people’s lives, as an institution that fosters gender performance, but as an ideal apart from law and fact.
The plaintiffs provided some sense of that ideal with Nancy Cott’s affidavit , but they provided little else. In part, that may have been bad lawyering, but it also may reflect the paucity of contemporary scholarship on why and how the law should support marriage as an institution. How can there be, why should there be such thing as genderless marriage when marriage always has been and still is usually so gendered? Some of us have tried to provide an explication and defense of legal marriage, including an explanation of why it should include same sex same sex couples, but it is far easier to find the blistering critiques of the institution. If Judge Walker, or plaintiffs’ counsel, could have easily accessed a rich normative defense of what marriage is and why it is good and why the state should support it for couples of any gender, if we, as legal scholars had done what West implores us to do in Part I of her book, then the 9th Circuit might not have had to do its neat little Romer move. And maybe there would be a federal Circuit Court of Appeals endorsing same sex marriage.
posted by Anita Allen
I am very pleased to have been asked to participate in this online symposium event devoted to Normative Jurisprudence: An Introduction (Cambridge Press 2012) by Professor Robin West. The book examines the state of natural law, positivism, and Critical Legal Studies. West argues that certain aspects of each school represent a retreat from, or evasion of, normative theory and practice.
In mid-September, I participated in a live book-publication recognition event in honor of Robin West held at the Georgetown University Law Center. This all-day, face-to-face symposium was an opportunity for me to make new friends, and even more significant, to reconnect with former colleagues. I now teach at Penn Law; but I taught jurisprudence at Georgetown for more than a decade (1987-1998) and served as an Associate Dean (1996-1998). I worked with Mark Tushnet, Gary Peller, Louis Michael Seidman, Dan Ernst and Gary Peller to develop an alternative 1L curriculum for Georgetown; our planning was funded by a grant from the federal government’s Fund for the Improvement of Post Secondary Education.
For the Georgetown event, whose remarks are the basis of this posting, I was asked, along with Professor Gary Peller, to speak about Professor West’s Chapter “Critical Legal Studies, The Missing Years.” My job was both to summarize and comment; Professor Peller’s job was to comment.
- My unique introduction to CLS and Critical Race Theory
Although I do not identify with the Critical Legal Studies Movement (“CLS”) as such, I have a relationship to CLS and some of its famous practitioners that made my selection to comment on this chapter especially meaningful to me.
By a strange twist of fate, I happened to be present at the historic first summer meeting of the Conference of Critical Legal Studies in Santa Cruz, California. (See Mort Horowitz here.) I was at the time a philosophy professor at Carnegie-Mellon University. I was on a leave to help run summer seminar programs in law and medicine for the National Endowment for the Humanities (NEH) in Washington. One of the programs was led by a Professor at Santa Cruz who was hosting the CLS “summer camp.” I was on campus for my official NEH site visit during the CLS meeting and was invited to sit in on several of the sessions. I was housed in the same dorm in which the Crits were housed and heard their secrets through the thin walls.
It is worth noting that my NEH job also led me to make site visits at Yale, where I sat in on a seminar directed by Robert Cover; and to Harvard where I spent a day at a seminar led by Derrick Bell that, I have recently concluded, helped create a community of race law scholars and to launch critical race theory.
When Professor Bell applied to teach an NEH funded summer seminar, there were two problems with his application. He was a civil rights lawyer, one; and two, he was not a practitioner of the traditional humanities. He was not a historian, not an English professor, and not a philosopher. The Endowment counted jurisprudence but not law as a branch of the humanities. In 1980, the field of jurisprudence was defined by the discussion and debate over three specific theories of the law: natural law, legal positivism, and legal realism. Bell wanted to teach race and racism in American law. (He wrote a pioneering textbook by that name.)
Bell and I worked together to conceptualize for a rigid bureaucracy how the scholarly study of race and racism in the law was a humanistic enterprise, an as yet neglected area of jurisprudential theorizing and analysis. Like legal realism, Bell’s critical race enterprise sought to expose and explain values and mechanisms behind the law—social, political, moral, attitudinal, and institutional. I am not sure my superiors at the Endowment fully understood the significance of embracing Bell’s enterprise as a “legitimate” humanistic inquiry. Although we knew the NEH was mainly interested in finding a way to safely integrate their pool of grant recipients, Bell and I were pleased with the outcome. He got the grant.
My first introduction to the formal study of the law was thus through the lenses of CLS and Bell’s critical race theorizing, and it took place in 1980, before I enrolled in law school. I was admitted to Harvard and Yale. I chose Harvard over Yale, because Boston, Bell and the CLS personalities seemed more lively and welcoming than New Haven, Cover, and the Yale crowd. Read the rest of this post »
posted by Robin West
Thank you so much for the time and attention you’re bestowing on my book! Here’s a quick reaction to Heidi and Brian.
For reasons I discuss in chapter one and won’t rehearse here, we’ve become accustomed to thinking of the Natural Law tradition as negative and censorial, much like (and for some of the same reasons) that we think of constitutional rights, and rights in general, as negative and trumping. So a law that is unjust is not a Law, a law that doesn’t meet certain moral criteria is not a Law, something that appears to be a law, by virtue of pedigree or social facts, but is immoral or unjust in certain ways, is not true Law. This has skewed our understanding of the historical Natural Law tradition and also, and more to the point here, our appreciation of what light that tradition might shed on some of our current arguments. What’s been lost is that the natural law tradition also suggests affirmative or positive obligations on lawmakers to enact laws that promote the common good. It suggests duties of lawmaking, in other words, as well as restraints on lawmaking power. This has gotten lost in our received, “civil disobedience-ish” understanding of what natural law has to offer. Let me illustrate quickly with the ACA.
How does the ACA fare, as viewed from a natural lawyer’s perspective? Seems to me there are three possible insights. If an unjust law is not a law, then perhaps, if the individual mandate is an unjust infringement of liberty, then it is not a law at all. This is not an argument that’s been given any credence, but it is structurally parallel to the argument, taken very seriously, that the mandate is an unconstitutional infringement of various individual rights of liberty. Second, perhaps the requirement that employers contract with insurers who will in turn cover the cost of birth control, conflicts with the mandates of individual conscience of some of those empoyers, and perhaps for that reason the law is unjust, so not a law at all. Again, this argument hasn’t appeared in scholarship that i’m aware of, but it has obvious parallels to the claim that the birth control coverage in the ACA violates RFRA, and is therefore unlawful. There is a natural law gravitational pull, in other words, in the direction of viewing the law with an eye toward identifying infirmities that might render the law to be so unjust as to be not truly Law.
But what’s been lost is how the ACA serves the Common Good, and how it might, accordingly, be a law that captures the natural law affirmative obligation of lawmakers to legislate in a way that promotes it. A healthy and long life, Martha Nussbaum, Amartya Sen, Henry Richardson, and others working generally in the “capabilities approach”, which is itself closely tied to Finnis’s Natural Law jurisprudence, is clearly a part of the individual good of virtually all of us, whether we call it a “capability,” a “function,” or simply a good. A state that can promote that good so common to all of us by organizing health care resources in such a way as to make it realizable by all, is presumably acting in accordance with the Natural Lawyer’s mandate to promote the common good.
Libertarian political philosophy plays a major role in the development of libertarian constitutional theory, just as social conservatism plays a role in the development of conservative constitutionalism. Liberal political theory has contributed to liberal constitutionalism as well,but primarily by laying the foundation for the value of state neutrality toward the good. LIberal constitutionalists have not turned to natural law, and particular its central claim that the lawmaker should promote the Common Good, as a font or guide to the development of a liberal constitutionalism of legislative and administrative duties to promote the General Welfare, or provide equal protection of the law, protect privileges and immunities, promote liberty and happiness, and so on. It seems to me that’s a shame.
So, Heidi is right that the common good is thick, and likewise our legal institutions. Traffic laws do provide an example of a set of rules that serve the common good through mandating and facilitating cooperation. The ACA, once fully operating, will serve that good, and will use multiple legal institutions to do so.
Brian and others worry about the qualifications of law professors to opine on the relation between jurisprudential commitments, normative judgments, and positive law. I understand the worry, but we invoke it so selectively! We opine on “public policy.” We make claims of what is and what isn’t a “cost” or “benefit” for purposes of CBA. We opine obviously on the unconstitutionality of law, often if not typically by reference to background moral principles. Why shouldn’t there be a more robust discussion, from the legal academy, on the content, contours, and limits of the Common Good that the law, and the lawmaker, ought serve?
posted by Mark Murphy
One of the key moves Robin makes in the ‘Revitalizing Natural Law’ chapter is to make a distinction between what Robin calls ‘jurisprudential’ natural law theories and ‘ethical’ natural law theories, where jurisprudential natural law theories attempt to give an account of the constitutive conditions of law that in some way includes value conditions and ethical natural law theories attempt to provide criteria for the assessment of legal institutions, norms, and activities based on what serves the natural good of human beings. Robin is right that such natural law views are often confounded, not least because they are often defended by the same persons, persons who self-define as ‘natural law theorists.’ And it is important to Robin’s project that she distinguish these types of natural law theory, for she wishes to shed jurisprudential natural law theory while embracing and enriching ethical natural law theory.
Now, I am of course entirely on board with the distinction between these two sorts of natural law theory. And while I may disagree with some of Robin’s worries about the particular views defended by the ‘new natural law theorists,’ as a defender of ethical natural law theory, I am inclined far more to be delighted that someone outside of the traditional circle is taking such arguments seriously than to be worried that the outcomes of such debates will not favor what one might think of as standard natural law positions. So instead I want to focus on points where my agreements with Robin are less solid. In particular, I want to focus on her characterization of the jurisprudential natural law view and her criticism of it. Read the rest of this post »
posted by Chai Feldblum
In her Introduction to NORMATIVE JURISPRUDENCE, Robin West challenges us with this:
With only a few exceptions, the major practitioners of our dominant contemporary jurisprudential movements do not ask what justice requires of law, what makes a good law good or what makes a bad law bad, or what the good is that law can, or should, accomplish, against which we might judge particular laws or legal regimes. . . . Even more clearly, we do not often ask what it is about social life that seemingly requires address by or recompense from the law, or how a good law might respond to a social ill in a desirable fashion, or how a bad law, or no law, might do so poorly. We do not often ask whether we have insufficient law to address ills of private or social life, or how we would know that, if it is true.
Thankfully, Robin’s book presents us with a roadmap for beginning to engage in such a conversation (if we agree that such a conversation is important, which I wholeheartedly do). And I celebrate the fact that Concurring Opinions is hosting this week-long blog exchange for those of us who have been salivating for a book of this kind to explore the ideas that Robin has put forward.
For my opening post, I want to make the following two points:
1) This is the FIRST of Robin’s books that is available on Kindle! YAY!!! If you go to Amazon (or click on Normative Jurisprudence above – which will take you to Amazon), you will see that the hardcopy sells for $90; the soft cover for $25; and the Kindle edition for the wonderful price of $14.99. (And as all of us who are devotees of Kindle on our iPads know – you can make the font LARGER for us late middle-age folks.)
OK, right there — I say we are on better grounds for achieving a normative jurisprudence – hopefully, by more people being able to buy the book that can provide us with a road map for having the conversation that can lead to such a jurisprudence.
2) My second point is that I agree with Robin that law (and lawyers and law professors and legal institutions) all have something unique to contribute to the conversation about what is normatively good and bad for our society. Read the rest of this post »
posted by Heidi Li Feldman
“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)
Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.
In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.
West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.
Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.
“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.
Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.
To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.
October 21, 2012 at 6:15 pm Tags: Heidi Li Feldman, jurisprudence, law and meaning, legal theory, Normative Jurisprudence, Robin West, Symposium (Normative Jurisprudence) Posted in: Jurisprudence, Law Practice, Legal Theory, Symposium (Normative Jurisprudence) Print This Post No Comments
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.
posted by Danielle Citron
This week, Concurring Opinions is hosting an online symposium on Professor Robin West’s important book Normative Jurisprudence (Cambridge University Press 2012). In the book, West argues that legal academics ought to study, debate, and teach the “nature of justice in a systematic way.” They should criticize law and suggest reforms on the basis of moral norms drawn from philosophical traditions. West takes to task contemporary trends of jurisprudence that suggest otherwise, notably the “positivist movement towards the purely analytic or descriptive study of law, the absence of a secular and progressive natural law movement, and the neutering, in effect, of the critical legal academy.” In West’s view, law professors should talk about the content of our normative legal commitments. They should ask whether “law is unjust or fails to promote the common good, as natural lawyers have long argued, or that it fails to serve the happiness of the greatest number, or leads to more pain than pleasure, more suffering than welfare, or that its array of rights and liberties legitimates subordination, or ill serves the downtrodden or so on.” West’s “hope, or plea, of this book is simply that legal scholars can and should contribute to the criticism of law, to its reform, and to its formulation, in ways that extend well beyond shadow brief writing, and well beyond the study of law’s culture, economy, and history.” West urges legal scholars to contribute to legislative and administrative initiatives by “providing a sound understanding of the nature of the good toward which law should aim.” West notes: “To do so in a systematic and responsible way would require a reorientation — not a revolution of the academy’s self-understanding and of its mission.” This is an auspicious time to discuss West’s book as we head into faculty hiring season when aspiring law professors will be talking to law faculties about their research agendas and their approach to teaching. But of course these sorts of questions ought not just be on the minds of our newer colleagues: the legal academy should question the value of its scholarship and pedagogy and the role that justice has in it. As West laments–and rightly so, the demands of justice and concerns of the common good should not be reserved for law school commencement speeches, prime-time television, and law school applicants’ essays.
We have a fantastic line-up of scholars joining Professor Robin West and the CoOp bloggers to discuss the book, including:
posted by Danielle Citron
During the week of October 22, Concurring Opinions will be holding an online symposium on Professor Robin West’s brilliant book Normative Jurisprudence (Cambridge Press). Professor Mortimer Sellers writes of West’s book:
When West insists that the study of jurisprudence (properly so-called) requires the pursuit of just laws through a better understanding of justice, the human good, and human nature, she repeats simple truths well stated and restated by Aristotle, Marcus Tullius Cicero, Thomas Aquinas, Thomas Paine, John Adams, and most students of the law in most cultures for most of human history — but oddly absent in the discourse of contemporary American lawyers and legal academics. The bulk of this volume is dedicated to gently and sympathetically explaining how and why American jurisprudence went off the rails — and eloquently, persuasively urging her colleagues back onto the right track. . . . Robin West has done a tremendous service by reminding American lawyers that jurisprudence and the law must be normative to have any value at all — and that it matters which norms these are.
We have a fantastic line-up of scholars joining Professor Robin West and the CoOp bloggers to discuss the book, including: