Steven D. Smith on Jurisprudence

Brian Tamanaha

I am posting below a response by Steven Smith to several critical reactions to his essay on the state of jurisprudence:

By Steven D. Smith

What’s “Interesting” (about Jurisprudence)?

To my considerable surprise, a little essay that I posted on the SSRN a few days ago has provoked a small and no doubt short-lived commotion, generating reactions from Brian Tamanaha, Larry Solum, Jeff Lipshaw, and Brian Leiter, who conferred on the essay the honor of being the “worst jurisprudential article of the year.” (I have received one email of protest from another scholar who believes several of his articles are more deserving of this distinction than mine is). Brian T generously invited me to submit a response longer than the brief comment I posted on Brian L’s blog. I doubt, however, that this is the forum to debate the merits of the central issues raised in the essay and the comments: for that I can only urge interested readers to read the essay itself, and the book (Law’s Quandary) from which it was distilled, and judge for themselves.

It may be worth saying something, however, about one of the central issues touched on by all of the participants to this brief exchange: what if anything is “interesting” in contemporary jurisprudence, and should jurisprudence try to be interesting anyway? With respect to this issue, there may be both less and more disagreement here than meets the eye. Brian T agrees that “conceptual jurisprudence” is largely played out, but he lists various other sorts of inquiries and debates that can be placed under the heading of “jurisprudence” and that continue to exhibit a good deal of energy and interest. Larry Solum’s view seems similar: he agrees (and he thinks Brian L probably agrees as well) that the old “what is law?” question has lost its interest for people, but he lists a number of other topics and inquiries that have a good claim on our attention. So both Brian T and Larry believe that “jurisprudence” is flourishing, not moribund.

For my part, I have no reason to disagree with the more optimistic assessments here. Indeed, in my essay I referred (very summarily) to some of these other enterprises, and I said that they were often valuable and interesting– to some people anyway, which (as Brian L explains) is all any of us could hope for anyway. My comment on these normative and sociological and other debates was only that there is nothing distinctly “jurisprudential” about them. But of course I have to concede that the term “jurisprudence” is a loose one; so those who put such issues under the heading of “jurisprudence” are perfectly within their rights. So then, are we just differing in how broadly or narrowly we use the term “jurisprudence”?


Not quite, I think. It’s a complicated matter, but for now I’ll try to make two quick points. First, maybe “interesting” is an unfortunate word here. People do or don’t find a whole array of things “interesting,” and that’s just how it is. I find watching baseball interesting, and my wife doesn’t: what more is there to say? So there’s nothing wrong with someone getting engrossed in some conceptual problem (of the sort that debates about exclusive versus inclusive legal positivism address), just as there’s nothing wrong with someone getting wrapped up in a crossword puzzle or a game of chess. But the question, for me anyway, is whether a particular issue or conversation has some relation to what we might think of as the “larger issues of life.” That’s not a requirement, obviously; on the other hand, I think those of us who spend many of our waking hours for most of our adult lives in law might be pardoned for wondering whether law somehow connects with our deeper human or existential concerns, and for wishing that it might have some such connection. Earlier jurisprudential thinkers like Holmes and Llewellyn and Fuller sometimes said that law had this kind of significance for them; is it now out of the question that it might have similar significance for us?

Which brings me to my second point: I’m not quite willing to join Brian T and Larry and (maybe Brian L?) in thinking that the “what is law?” question is no longer interesting, so that we should move on to other normative or sociological or whatever types of issues and call those “jurisprudence.” I think the “what is law?” question should be an interesting one– and in fact it is, though in a complicated and roundabout way. That is because I think that if we inspect closely how legal discourse actually works– how lawyers argue, how judges justify– we find that our practices do not conform very well to the modern positivist models developed by Hart et al., and in fact they seem to betray some lingering commitment to older, more classical presuppositions that we consciously and explicitly disavow. We can if we like force our practices into the contemporary models, but if we look closely we will have a strong sense of “square peg- round hole.” If that observation is correct (and of course it is eminently contestable, and contested), then I think that the discrepancy between what we say and think we believe and what our practices seem to presuppose is a very interesting fact– one that provides a wonderful opportunity to reflect upon our contemporary situation. So I myself would hope that we might revitalize the core question of jurisprudence– what is law?-- instead of just moving on to other types of issues and kinds of scholarship (which of course may be perfectly proper, and “interesting,” in their own right).
Posted 11:24 AM by Brian Tamanaha [link]