More Thoughts on Philosophers Influential in Legal Scholarship

Responding toour earlier survey, David Luban (Georgetown) writes with some interesting observations:

Your poll of the most influential philosophers on law faculties was interesting, in part because it raises questions about what kind of influence we are thinking of and which faculties. 

As for the former question:  given the extraordinary number of law professors who think of themselves as utilitarians or classical liberals, Mill must IN FACT be the most influential even among law profs who have never read a word of Mill - provided we count indirect influence.  And surely we should, because otherwise it's hard to see how Kant could have wound up as #1.  How many law profs actually read Kant or have beaten their brains out over the transcendental deduction?  The influence must be indirect:  law profs think of Kant as the source of non-utilitarian thinking about rights.  Ergo, Kant is influential.  This sort of influence will not show up in citation counts.  Conversely, some philosophers will show up in citation counts merely as a footnote to a sound bite.  For example, a quick Lexis search on "wittgenstein w/10 language game or language-game" gets 125 hits.  Most appear simply to be isolated uses of the phrase, without any sign that the author is actually a Wittgensteinian in any robust sense.  So too, "adam smith w/10 invisible hand" gets 445 hits.

As for the latter question, about which faculties:  I found myself placing Aristotle and Aquinas high on the list because there must be a lot of Catholic law schools where the Thomistic influence lingers even if recent decades have seen their faculties become far more secular.

Thoughts from other readers?  Please post only once, comments may take awhile to appear.

Comments

[Matt Lister]

When filling in the survey I was a bit unsure whether the instructions, Rank order the philosophers below in terms of their importance for legal scholarship mean to list the people in terms of the importance the have had on legal scholarship, or something else, such as the fruitfulness of studying each one, or something like that. (The way the final results were posted seems to indicate the former.) So, I think that Locke has had a clearer, if somewhat superficial, impact on legal scholarship, both because of applications of his version of the social contract approach and his account of property. I think the actual use made of Locke by most legal scholars is quite superficial, though, both in terms of figuring out what Locke was really up to and whether his ideas are right or not. But if they wanted to read someone who was more likely to provide fruitful insights and new directions of study, surely Hume would be a better choice than Locke, even though Hume, as far as I can tell, has had much less direct impact on legal scholarship.

[Alfred]

This is a great subject and thanks to you all for raising it. One question, though: why must Mill be the most influential? Because we're all (or almost all) utilitarians? There were utilitarians before Mill (lots of moral philosophers were emphasizing utility before Mill was born). Moreover, judges who never heard of Mill--because they were writing before Mill--were utilitarian. I am a huge fan of Mill and believe him to have been an important, influential, and (not sure anyone else cares about this) humane person. But I'm not sure we need to give him credit for popularizing utility as a judicial (or even intellectual) phenomenon.

[Dean C. Rowan]

Prof. Luban's initial stab at eliciting kinds of references to Wittgenstein is good, but a better one can be performed equally quickly. Search:

atleast5(wittgenstein) or atleast5(language game)

...and the results are 85. Replace 5 with 10 (i.e., require at least ten occurrences of either wittgenstein or language game in an article) and the results decline to 64. This doesn't demonstrate an author is a Wittgensteinian, but it does weed out isolated occurrences.

Likewise:

atleast5(adam smith) or atleast5(invisible hand)

...generates 281 hits, 72 of which refer to invisible hand at least five times. For the heck of it:

atleast5(adam smith) and atleast5(invisible hand)

...generates 20 results.

[David Luban]

A quick reply to Matt Lister: My assessment of Mill's influence was not only that he was a founding theorist of utilitarianism, but also of classical liberalism.

[Matt Lister]

Hi David- I think that's addressed to Alfred, not me! I'm not _sure_ I'd put Mill first (on any understanding of the directions) but he's obviously a top candidate, not only for his general influence (that you rightly note) but also because _On Liberty_ is influential in so many areas of law, and _Subjection of Women_ has had some important influence in liberal feminist legal theory, too.

[Chris]

Of course, Mill also did important Frege-anticipating philosophy-of-language work, of great significance for the law (see http://ssrn.com/abstract=798466 )!