an unanticipated consequence of
Jack M. Balkin
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Bruce Ackerman bruce.ackerman at yale.edu
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Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
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Gerard Magliocca gmaglioc at iupui.edu
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Frank Pasquale pasquale.frank at gmail.com
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Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On Legal Theory Blog, Larry Solum just posted another excellent lexicon entry, this one on "The Nature of Law." As usual, his explanation is concise and informative. Solum lays out the traditional legal theory debate over "What is law?" as a contest between natural law theory and legal positivism.
One limitation of Solum's discussion is that it fails to consider the sophisticated analysis of this issue by social theorists and social scientists. Max Weber, Eugene Ehrlich, and Niklas Luhmann, for example, all highly regarded theorists who were well versed in natural law theory and legal positivism, went outside this standard debate to answer the question "What is law?" in terms of the social forms and functions of law.
Another limitation of Solum's discussion is that it treats the question "What is the nature of law?" as equivalent to the question "What is law?" But these are not the same question. If one takes the position that "law" has no "nature," that opens up a different angle on "What is law?"
These comments are not criticism's of Solum's summary of the legal theory debate over "What is law?," for he faithfully reproduces the basics of that debate (which he might go beyond in promised future entries). The problem is with the dusty old, artificially narrow parameters of the debate itself. A broader look at the question "What is law?" can be found here. [Type the rest of your post here.] Posted
by Brian Tamanaha [link]
Thanks for the link, Brian.
Can "What is the nature of the law?" be fruitfully re-phrased; "What is the law for?"
When we talk about the Law is it not a little like talking about a giant factory whose floors are littered with all kinds of esoteric machines?
Lets say these various machines are constitutions, statutes, courts, writs, and so forth.
Gilbert Ryle talked about category mistakes: "I see these buildings, sidewalks, lawns, and students, but where is the campus?"
Someone says "Don't show me these statutes, courts, writs..I want to see the LAW."
Well, we can point to the factory.
But what is the nature of that factory?
That's a puzzle.
Better to ask, "what is the factory for?"
Then we can get some positive answers, some instrumental and some not.
The factory is for making its owners wealthy. The factory is for providing jobs. The factory is for making widgets.
Thanks, Michael, for your very interesting comments. Asking "What is law for?" (purpose, function) is indeed one of the main strategies applied in the social scientific approaches to this question, closely related to "What does law do?"
Yes, there is that approach but I think it sets forth too narrow a universe of answers.
We can ask intelligently, "What is a hammer for?"
But can we ask intelligently, "What is a waterfall for?"
Or, "What is Humanity for?"
When we ask, "What is Law[-qua-Law] for?" are we asking a hammer, waterfall, or Humanity type question?
It does make a difference.
I would like to ask the question, "What is Law for?" in the third sense, the one that is somewhat indeterminate in assuming intentionality. That way we get to search a larger universe of possible answers!
"This is Liberty-hall gentlemen. You may do just as you please here!" --Goldsmith
What's the function of law? What's the function of religion? Looking at it it becomes clear pretty quickly that religion doesn't have much to do with god, but that it is the original form of law. Before you ask how should law should change, ask how it does. How does god change? Those two questions are the end of fundamentalism.
The dichotomy and our supposed need to choose between religion and technocracy or natural law and positivism, is a choice between one false foundation and another. Technocracy is no more valid a foundation than the Church, and Posner has no more respect for democracy than Scalia. It's amazing how the priesthood finds a way to propagate itself. Laws are points in an endless debate, that's all. The debate is the foundation.
Interesting points. I agree on some points and have a happy difficulty with others.
"religion.... is the original form of law".
Maybe, but only in a limited rule-giving sense. The universe of rule-bound activities is much wider than that of Law.
Think of the prudential "oughts" involved in everything from backgammon to scuba-diving...
But you could rejoin, "Not necessarily!" And you would be right.
"The debate is the foundation."
Nicely said. I posted somewhere that the public contention between schools of constitutional interpretation serves the primary purpose of perpetuating through the generations the conversation about the Constitution, mainly because we highly value such talk and wish to see it continued.
But religion whether oral or written is still language, and begets interpretation; and one interpretation begets others, and then debate. The story just supplies the structure. As'ad AbuKhalil put it well in one of his posts on the mess in Lebanon:
"I was also displeased with the closure of Hariri media, as much as I detest them and as much as I believe that they have been engaged in acute sectarian mobilization that is exactly the same as of the propaganda of Al-Qa`idah. I will not enjoy writing in Al-Akhbar and attacking my opponents if they are not on an equal footing..."
Politics needs to be taken as seriously by its practitioners as sports are professional athletes. That's the logic of a courtroom, but trial lawyers understand this more than academics. My problem with legal realism is more than anything that it tries to undermine the game, choosing victory over process. The same is true of law and economics. Their values are assumed and unquestioned. What is public and social by nature is redefined as unsocial or even anti-social. We the people becomes we the elect and the logic of democratic process is sacrificed to the logic of spurious "truth"
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