an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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 msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Imagine proud parents showing off their newborn child for the first time to a group of friends, when a loud jerk says: “Your baby is beautiful, but I must tell you that I really hate babies. They cry all the time, demand constant attention, and poop a lot.” That would be a world class cad.
In her response to my previous post on Legality, Heather Gerken objects that I praise Shapiro’s book, but then go on and on about why I think his methodological commitments to universalism and essentialism, and his assertion that sociological insights on the concept of law are irrelevant to legal philosophy, are misguided. As Heather correctly points out, my objections are not to Shapiro’s book in particular but to a set of views he shares with other legal philosophers (I should clarify that not all legal philosophers agree with these views). A more charitable post would have taken Shapiro’s book on its own terms. As she notes, reviews of historical works typically evaluate the merits of the historical narrative and do not castigate the author for following shared assumptions of the historical craft.
Heather is right. Although she was too nice to call me a cad, I’ll own up to it. Like the obnoxious fellow mentioned above, my post on his book was in poor form. A more thoughtful course would have been to praise the book, then write a separate post raising my criticisms in a way that do not center on Shapiro’s book alone. Let me say again: Legality is an excellent book! Order a copy here.
Although I agree with Heather’s criticism of my post, I must take slight issue with one aspect of what she says. While she is correct that historical pieces are usually reviewed without attacks on the historian’s methodological commitments, a ground-work in general jurisprudence is different because these commitments, which shape the philosophical account of law that results, should be justified by the legal philosopher. Shapiro begins his book with a discussion of these very issues (including the passage I criticized in my post). Furthermore, the proposition that law is a socially constructed institution—and hence is contingent and can change—is in tension with the notion that law has an essential nature (a tension which Joseph Raz acknowledges and discusses at length in Chapter Two of his recent book). It is entirely appropriate, therefore, to raise doubts about the philosophical quest to identify the essence or nature of law—although I admittedly did not raise these doubts in a constructive fashion.
Heather is also right to criticize my post for exuding “frustration” with the dismissive attitude some legal philosophers (though not Shapiro) evince toward sociology. I lost my intellectual cool after reading Shapiro’s assertion that sociologists are limited to humans while what philosophers say also extends to alien civilizations. Blog posts, especially on theory topics, should not be written in exasperation. Sorry, Scott.
Rather than indulge in a harangue, it would have been more useful if I had actually demonstrated that legal philosophers might benefit by paying attention to the sociological analysis of the concept of law. To show that the thrust of my ineptly written post was not completely off base, I will close by offering an example.
When laying out his criteria of legality, Shapiro remarks that the “United States Golf Association…straddles the line between law and nonlaw.” He also observes that “if a criminal organization presents itself as dedicated to solving serious moral problems…, it too might be eligible to be a legal system.” Interestingly, social scientists who study law have independently asserted that the mafia or criminal gangs in favelas—which, in addition to drug dealing and extortion, often fulfill social ordering functions—also produce “law.” Like Shapiro, they too have constructed a concept of law which holds, as Marc Galanter put it in 1983, that law exists “in a variety of institutional settings—in universities, sports leagues, housing developments, hospitals.” Although the concepts of law formulated by sociologists are not identical with Shapiro’s planning theory of law, they share fundamental characteristics with his theory in a way that leads to similar conclusions about what counts as forms of “legality.”
For three decades now (in the literature on legal pluralism), social scientists have hotly debated the soundness of these sociological concepts of law. Many have argued that it makes sense to assert that a criminal organization or sports leagues (like the USGA) create “law;” others (including me) have argued that this is a conceptual error. The debate remains unresolved.
Of course legal philosophers have their own discipline and concerns and can come to their own conclusions. They are entitled to give nary a thought to sociological debates about the concept of law. That goes without saying. Heather is correct to insist upon disciplinary separation and independence. I am not an intellectual imperialist and disavow any such impression my post might have given off. Nonetheless, I believe that, just as legal sociologists have learned a great deal from legal philosophy, legal philosophers might learn something of philosophical interest from the fact that sociologists have covered the same ground and have ended up in a strikingly similar place.
It does not seem controversial to assert, as I do, that legal philosophers might benefit from considering sociological debates about the concept of law. After all, although they approach from different angles and go off in different directions, legal sociologists and legal philosophers share the same object of concern: law. Posted
by Brian Tamanaha [link]
Brian Tamanaha aces the blog nice guy honors, Sandy Levinson a close second, but too impassioned to quite do the trick.
It's been while since I've commented on this forum but here goes...
Brian, don't ever write or say anything while you're angry; you're bound to regret it sooner rather than later :) Seriously, Fred Schauer makes some of the same points --in a less angry way :)-- in his recent review of Shapiro's book in the Yale Law Journal. There's no question that scholars who tend to do it one way can learn from others who do it a different way and vice versa. Especially when it comes to understanding what law and a legal system is, and I personally do care about the empirical quite a bit, even if it isn't the essence of law in all possible worlds. I'm a methodological pluralist and as such, think a lot can be learned from different approaches, which isn't to say that I don't have my preference(s).
But let me defend Shapiro's approach. In this field, a division of labor is appropriate and in some cases, like this one, I would prefer the author not to be methodologically promiscuous. There is a lot to be said on behalf of a purely analytical approach and empirical work, which is equally important, can be left to others. There is something to be said for having the division of labor that current exists.