Law & Society Blog

Below is a comment from Dennis Patterson, the latest in the discussion about what (if anything) is wrong with jurisprudence, that Nico Artzi started with this post.

In Nico’s “earlier effort,ǃ? the following claim is central: “For reasons that have to do with the history and sociology of ideas ÇƒÏ not substantive reasons ÇƒÏ jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers.ǃ? I offered 2 counterexamples to this claim. The first was the work of HLA Hart; the second, that of Jules Coleman (as an exemplar of the sort of work I myself and my contemporaries engage in). Nico claims that his earlier “tongue-in-cheek entry addressed contemporary analytic legal philosophy (say, the past 15 years or so) only.ǃ? 2 points. First, nothing in the earlier entry limited the scope of the comment in the way he now describes it. Second, even if it did, Coleman is a counterexample and, interestingly, Nico never responds to the counterexample. Be that as it may, Nico seems to have shifted the object of his comments from a spurious claim about moral philosophy to the need to do sociology if one is to engage in philosophy (I am employing Davidsonian charity here). We get to the heart of the matter in the final paragraph of Nico’s second post, wherein he states that the kind of work he applauds (Habermas is given as an example) “can help explain not only what law is but also what the concept of law is as a concept different than the concept of “whiteǃ? or of “tableǃ? or of “goodness.ǃ? This is where the action is, but not in the way Nico imagines. Nico’s complaint seems to be that analytic legal philosophers don’t do philosophy in the manner of Habermas because they fail to incorporate sociology into their analysis. This is a claim that requires an argument. None is provided but one could be. How about it Nico: do you have an argument? How about an example of sociological/philosophical analysis that - owing to its sociological component - does a better job than a straightforward analytic legal philosopher might?

Larry Solum, commenting on the debate, writes that

most contemporary philosophers recognize the limitations of this approach, and it is fair to say that contemporary philosophy has entered a post-analytic phase. But I am much less convinced by Artzi’s claim that the remedy is a turn to “social philosophy,” with Habermas as an exemplar. I say this even though I am sympathetic to Habermas’s project. There is much to be said for clarity and analytic precision, and a good deal of social philosophy in the continental tradition is obscure and (in my opinion) fuzzy.

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