After getting plugged by Orin, Solum, and Leiter himself, how could I resist reading Leiter’s review of Duxbury’s PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995). It is available at SSRN here.
The second half is an illuminating essay and I join the chorus recommending it. But I do have one bone to pick with it: the first section is incredibly territorial about the word “jurisprudence,” arguing essentially that jurisprudence is what gets taught in jurisprudence courses in law schools. I find this to be a recognizable but irritating claim. I just can’t very well understand why one writing about “jurisprudence” must limit herself to what happens to get taught in jurisprudence courses this decade. We routinely speak of Establishment Clause jurisprudence, Cardozo’s jurisprudence, comparative jurisprudence, sociological jurisprudence, the jurisprudence of Rule 11, etc. In short, the word is a bit too general to get territorial about. Now if the book were about the “Philosophy of Law” or “Analytical Jurisprudence” and didn’t mention Hart, Raz, Dworkin, or Coleman, I suppose I can see a teammate like Leiter getting up in arms.
N.B.: Leiter so much loves his Jurisprudence course that he forgets how much he hates Dworkin. In the Duxbury review, Dworkin is called “unquestionably the most influential living legal philosopher in the English speaking world.” More recently, Leiter has dismissed Dworkin’s work, arguing that it “has loomed larger outside the [hallowed] field [of Jurisprudence] than within it.” Not a contradiction, of course, but fun anyway.
Posted by Ethan Leib on July 18, 2005 at 11:11 PM
Comments
It does seem to me incumbent on someone who writes a book called “Patterns of American Jurisprudence,” to have some view of what makes the subject-matter of the book hang together. One may stipulatively use the term anyway one wants, of course, and even in the public language, there are usages compatible with much that Professor Duxbury wants to discuss. My complaint was addressed at Professor Duxbury’s failure to come to terms with this issue.
Posted by: BL | Jul 19, 2005 1:07:51 PM
Thanks, Brian. Of course the philosophy of science argument makes its way into the first third of the paper–and I thought that argument was illuminating too (though I’m still not clear on why that can’t just be “Philosophy of Law”). But I felt that while you criticized Duxbury for “display[ing] so little anxiety about whether its subject-matter–that is, ‘American jurisprudence’–is genuine; whether, in short, the label ‘American jurisprudence’ makes much sense,” you displayed a bit too much anxiety about why “writers like Jules Coleman (Yale), David Lyons (Boston University), Gerald Postema (University of North Carolina), and Frederick Schauer (Harvard)” (2) were left of the list of “Jurisprudence” people. You probably wouldn’t say the same thing if a book titled itself “Legal Theory” (or would you? do you only accept your kind of Jurisprudence for your journal Legal Theory?).
This is a small bone to pick–I am doing in some ways just what I accuse you of: getting worked up about the label that we call things. So I wouldn’t pay too much attention to me. I also got caught up in being bothered by a Brit’s use of the term “public law.” (See my review of Loughlin’s “The Idea of Public Law” here–http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/loughlin604.htm). Maybe the lawyers have weird usages over there generally!
Interesting to hear that you are new to the Dworkin hating game. I really thought that it was old news that Dworkin was dismissed by the vast majority of the major players in your field. I took a class with Coleman and Gardner-and even though we read no Dworkin, their view of his work was made apparent.
Thanks for dropping by.
Posted by: Ethan Leib | Jul 19, 2005 12:29:44 PM
I don’t think the “essence” of the argument had anything to do with saying jurisprudence “is what gets taught in jurisprudence courses in law schools”; indeed, that would be closer to Duxbury’s view of the matter, judging from the mix of figures he chose to cover in his book. Matt Lister mentions the real “essence” of my argument, namely, that jurisprudence stands to law as philosophy of science stands to science.
As you note, there is no contradiction between the claim that Dworkin is the most influential living legal philosopher and the claim that he looms larger outside the field of legal philosophy than within. I will note that my assessment of Dworkin did change between 1997, the year of the Duxbury review, and 2004, the year of the far more critical Rutgers Institute lecture. This change had much to do with having repeatedly taught aspects of his work during this time period, and thus having its limitations repeatedly impressed upon me in the context of explicating it for students.
Posted by: BL | Jul 19, 2005 9:03:31 AM
While noting the obviouse and common broader use of the term I have a lot of sympathy for the claim (made, I believe, by Leiter, though I’m not sure if he makes it this paper or not. I’ve not read it yet) that at its core “jurisprudence” stands to the law like philosophy of science stands to science. This allows for a core use of “jurisprudence”- attempts to answer the “what is law?” question and similar related questions- but also allows for the legal equivilent of the philosophies of the various science- so we have core philosophy of science, but also philosophy of biology, of physics, of chemestry, and we have core jurisprudence but also philosophy criminal law, torts, contracts, etc. The other uses of jurisprudence I think, are related in only a lose way to what I’d see as the core use.
Posted by: Matt | Jul 19, 2005 1:26:22 AM