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
Yesterday, Balkinization poster Brian Tamanaha wrote about Scott Shapiro's new book, Legality. [In the interest of full disclosure, I should note that I'm Scott's colleague and friend, so discount accordingly].
What intrigued me about the review was that it was effusive about the book but unleashed a blistering attack on Shapiro's disciplinary commitments. Tamanaha calls the book a "superb articulation and defense of exclusive legal positivism" and "a truly impressive book." But he roundly criticizes Shapiro for eschewing what Tamanaha calls a "pluralist" approach because Shapiro refuses to take into account all of the insights social science has to offer in thinking about what law is. Shapiro is painstakingly clear about why he chose to do so; as an analytic philosopher, Shapiro thinks it's important to shear away a great deal of information in order to figure out what law is. It's clear, however, that Tamanaha doesn't buy this approach.
Setting aside the merits for the moment, Tamanaha's review surprised me. Philosophy is decidedly not my cup of tea. But I can't remember seeing a review of an important piece of legal history that spends pages criticizing it for hewing too closely to Clio's norms. I can’t remember seeing a review of an important sociological study that mourns the fact that it failed to take into account all of the insights afforded by economics. I don’t mean to say that Tamanaha's arguments are in any way inappropriate -- to the contrary. But I do think reviews like this one -- extremely positive about the work, relentlessly negative about the disciplinary rules that shape it -- are unusual.
Maybe members of every discipline feel like they get this type of pushback from law professors, who are so accustomed to an interdisciplinary, problem-centered approach that we sometimes lose patience with disciplinary bounds. But the pushback against legal philosophy seems of a different sort to me. The closest example I've seen is the reaction to the work of economists, which is often challenged along these lines. Still, at the end of the day, even those hostile to economics still typically evaluate economic work against the norms of that discipline, something that I take to represent a begrudging admission that economics is capable of generating valuable insights.
I think I would have been less surprised by the review if I thought that Tamanaha really believed that analytic philosophy isn't capable of generating valuable insights. If I read him correctly, though, his claim isn't that analytic philosophy contributes nothing, but that analytic philosophy would get a lot more traction if it drew on other disciplines. That's a perfectly fair claim to make, but to be convincing one would also have to show that this disciplinary shift wouldn't dilute the contributions analytic philosophy is otherwise capable of making.
Let me offer an example, and here I want to borrow a lovely analogy from Fred Schauer's review of Legality. Schauer writes in mostly admiring terms about the book's main argument that law involves planning. His main criticism is that Shapiro fails to take into account the role of sanctions in thinking about what law is. As Schauer explains, Shapiro does so quite self-consciously. In the tradition within which Shapiro is writing, one focuses only on the essential properties of law, and law can exist without sanctions.
Schauer talks about the study of birds to explain why he thinks Shapiro should have included sanctions within the ambit of his analysis. Schauer notes that analytic philosophy would push one to focus on the only two things that birds have in common: they have a backbone, and they have feathers. Schauer says that the problem with this approach is that it prevents one from thinking hard about the fact that most birds also fly. He notes, correctly, that we "surely . . . miss something important if we ignore the fact that almost all of them can and do fly."
Yup. But an analytic philosopher would presumably respond that if we started with flying as a criterion, we might think too much about bats or ignore the luckless penguin (an argument that Schauer, to his credit, anticipates). Similarly, if Shapiro had included sanctions within the ambit of his analysis of the law, he might have missed the important (and, in his view, essential) role that planning plays. It's possible, then, for Schauer to be right that it would be exceedingly useful for some philosophers to think about the role sanctions play in the law, but that argument gets traction as a critique of Legality only if Schauer's review successfully shows that Shapiro could have come up with the same or better insights about law and planning by taking sanctions into account.
That brings me back to Tamanaha and why philosophers, particularly analytic philosophers, seem to annoy the hell out of the rest of the academy. A claim like Shapiro's -- that it is important to ignore certain types of evidence -- seems to suggest the irrelevance of things that the rest of us find important. Similarly, Tamanaha's response -- that scholars should extend their reach and think in interdisciplinary terms -- is intuitively appealing. But it's crucial to remember the core disciplinary claim Shapiro is making -- that legal philosophy is making progress precisely because its arguments don't rest on social science. If Shapiro had claimed that his was the only way of thinking about these issues, he'd be making a foolish claim. But his claim is that analytic philosophy is one very useful way of thinking about these issues. And I don't think Tamanaha would really dispute that point.
Nor should the rest of us, because we all ignore some things in order to focus on others. Historians confine themselves to the claims their documents allow them to make. Economists shear away lots of information about real-world behavior in order to generate certain useful insights. Even law professors, less bounded by disciplinary norms, do it. Mid-level theorists, for instance, don't spend time defending their basic assumptions; they just note them and move on. Doctrinalists don't begin every article with a defense of stare decisis. And so on.
That brings me to one last thought about academic pluralism. Tamanaha rebukes Shapiro for not being a pluralist. But I suppose there are two kinds of pluralism. One version suggests that each of us should be pluralists in our work -- that each scholar should look to every relevant discipline in searching for answers. Another suggests that it's perfectly fine to search for answers using our own disciplinary tools, provided that we respect the efforts of others to do the same. Shapiro's book is certainly not pluralist in the first sense. But it is in the second.
Finally, and perhaps this is entirely due to my friendship with Scott, even if you think analytic philosophy is too insular, Legality seems like the one book that shouldn’t be tarred with that brush. Shapiro does an impressive job explaining the debates within the discipline and showing how and why they matter to those outside of it. His ideas are certainly relevant to constitutional law, and he's writing a paper applying them to international law with our colleague Oona Hathaway. The book goes a long way toward sharing the insights of analytic philosophy with the rest of us and that, too, seems like a pluralist move. Posted
by Heather K. Gerken [link]