Law’s Quandary

ISBN 9780674025738

Publication date: 09/30/2007

This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense.

The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.

Praise

Ordinary people assume that legal terms like freedom of speech have some real or true meaning. Most important legal theorists say there is no such thing. It is not unheard of for the sophisticated classes to reach conclusions at odds with common sense. But this creates a real problem for the stability of our legal system. Smith explores this quandary in a way that is wonderfully clear, honest, and funny. This is the best book I have read in several years.

—John H. Garvey, Dean, Boston College Law School, and author of What Are Freedoms For?
Smith's treatment of the issues he addresses is outstanding. His discussion is consistently probing, thoughtful, and imaginative. Smith's range of reference is impressively broad--yet I never had the sense that he was trying to impress. His clarity--aided by his wonderfully engaging, and occasionally humorous, conversational style--is exemplary. But the enviable clarity/accessibility of Smith's writing should not obscure just how penetrating--I am tempted to say, brilliant--his commentary is. It may sound faintly ridiculous to say this, but I thought that this book was a jurisprudential page turner.

—Michael J. Perry, Emory University School of Law, and author of Under God? Religious Faith and Liberal Democracy
Smith argues that there is an ontological gap between prevalent legal theories and legal practice. He is concerned that the realist and pragmatic approaches of Holmes, Llewellyn, Fuller, and, later, Posner refuse to acknowledge the metaphysical component of law. He proceeds to demonstrate persuasively that words, statutes, and judicial decisions alone cannot account for common assumptions and behavior in the everyday practice of law. He concludes that efforts to 'squirm' out of 'the Law' as a metaphysical force have failed. Having illustrated the continuing gap between practice and theory, the author examines how meaning might be attributed to the law. He rejects the idea that meaning is created by the interpreter or reader. There are various ways of positing the author of a law, but a law's meaning flows from the intentions of its enactor, however conceived. Smith concludes that the classical belief in a metaphysical presence behind the law remains alive, although circumspectly submerged, in the practice of law today. This is a timely, down-to-earth critique of those who have rejected the possibility of functioning legal principles beyond the day-to-day decisions and practice of law.

—R. Heineman, Choice
Smith takes us on a lively, thought-provoking romp through the philosophy of law.

—Antonin Scalia, First Things

Author

Steven D. Smith is Warren Distinguished Professor of Law at the University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.