Wednesday, August 23, 2006
I've posted the penultimate draft of the introduction to my collection of papers on Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, which Oxford University Press will publish (simultaneously in both cloth and paper, happily) in 2007 (during the Spring, I hope). The introduction, "From Legal Realism to Naturalized Jurisprudence," gives a general overview of the papers in the volume and the set of problems they address, and how they all hang together, more or less. The book will also include two new Postscripts responding to a variety of critics.
A short excerpt from the introduction:
American Legal Realism was, quite justifiably, the major intellectual event in 20th-century American legal practice and scholarship, so it was somewhat disheartening to me, with my philosopher’s hat on, to find that Realism was held in contempt, if noticed at all, by philosophers, even those with a substantial interest in law. The explanation for this state of affairs is, in retrospect, clear enough. On the one side, the Realists were not interested in philosophy, and tended to be intellectually reckless in some of their pronouncements. On the other side, the philosophers, who often knew little about law in practice (even those who were jurisprudents), were systematically misconstruing the kinds of questions Realists were asking. Academic lawyers who tried to intervene in some ways made matters worse in virtue of having a tin ear for philosophical questions and problems. Other academic lawyers were content to offer useful intellectual histories of Realism, without regard for what was jurisprudentially significant. What was needed was an explanation for why philosophers ought to care about the actual questions with which the Realists were concerned, and why the Realist questions were, in fact, questions within the purview of philosophical thinking about law.
Some time in the early 1990s, the relevant mediating consideration became clear to me: the legal philosophical tradition that had marginalized American Legal Realism was predicated on a conception of philosophy as beholden to the method of conceptual analysis via appeal to folk intuitions (as manifest, for example, in ordinary language), a metehod that was itself at risk of becoming an item of antiquarian interest in the context of the naturalistic revolution of late 20th-century philosophy. Recognize the Realists as “prescient philosophical naturalists,” and you now understand why most legal philosophers misunderstood them, and why they got so many things right.
 As I argue in Ch. 3, economic analysis of law (the most influential intellectual event in American law since the 1970s) is reasonably understood as a continuation of the Realist program.
 H.L.A. Hart presents a complicated case, since he was an experienced English lawyer. Here part of the explanation may have to do with the differences between the U.S. and English legal systems, and, in particular, the respective roles of the courts.
 I am thinking especially of Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca: Cornell University Press, 1982).
 This is brought out usefully by Michael S. Moore (discussing Summers) in “The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism,” reprinted in
Moore’s Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000).
 Useful examples are William Twining, Karl Llewellyn and the Realist Movement (Norman: University Oklahoma Press, 1973) and G. Edward White, Patterns of American Legal Thought (Indianapolis: Bobbs-Merrill, 1978), esp. Chs. __ and __. Less satisfactory is the coverage of Realism in a more recent work of intellectual history, Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press, 1995), as I discuss in Chapter 3.
 Chapters 1 and 2 try to make that case.