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
Scott Hershovitz's "The End of Jurisprudence" is a terrific article. For the past four decades, he asserts, "jurisprudence has been dominated by the Hart-Dworkin debate," and it is time to move on.
Of course, an end to the Hart-Dworkin debate would not
mark the end of jurisprudence. But it would allow us to reorient
jurisprudence toward a different end. For far too long, the field
has been preoccupied by a question that is poorly formed. The
time has come to set it aside and take up a better one.
Hershovitz argues that the debate was framed in terms of metaphysical questions, entrenching a series of confusions, and the whole thing is best left behind.
The time has come for jurisprudence to drop the metaphysics and take up morals. The question that jurisprudence should aim to answer is how our legal practices affect our moral rights, obligations, privileges, and powers. The metaphysical question posed in the Hart-Dworkin debate was a distraction; we have no good reason to think that our legal practices generate a distinctively legal domain of normativity, or quasi-normativity, whose metaphysics we must unravel. But the moral question is vital; it is contested everyday, in court and out, with serious consequences for peoples’ lives.
He makes a powerful argument, wonderfully written and executed. And I wholly agree that the Hart-Dworkin debate, while illuminating, should no longer be central.
Without detracting from his excellent piece, let me express two reservations. First, while he is correct that legal philosophers have long centered on this debate, jurisprudence all along has been broader than this, taking up many other issues and aspects of law. (Legal philosophers sometimes express the view that what they do defines jurisprudence, which Hershovitz implies, but this is wrong.) Many jurisprudence scholars moved on a long time ago (Waldron and Schauer, for example). For this reason, a more apt title would have been "The End of Legal Philosophy." My second reservation relates to his conclusion that jurisprudence "needs a new end," and his proposal that we "worry more about the moral consequences of our legal practices." Though I agree this deserves attention, I do not agree that jurisprudence has or requires a particular end, whether this one or any other. The field thrives best when jurisprudence scholars pursue many different intellectual projects.
In my view, jurisprudence remains vital by focusing on important legal phenomena and by drawing from other disciplines for insights. On that note, I offer my draft essay "What is Law?" It addresses a classic issue in legal theory, is broad in scope, is not about metaphysical questions, and has contemporary relevance (with no mention of the Hart-Dworkin debate). The abstract:
Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts.
Here are the topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law?