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Reviewed by Antonin Scalia Steven Smith takes us on a lively, thought-provoking romp through the phi losophy of law. Like most romps, it has no destination, but the experien ce is worth it. Although Smith protests at the outset of Laws Quandary that he is a law professor, not a metaphysician (or even a philosopher), he cannot hone stly be absolved of that sin. He is, after all, co-director of the Insti tute for Law and Philosophy at the University of San Diego, and he displ ays an impressive familiarity with the scholarship, from ancient to mode rn, bearing upon the philosophy of law. By the time this book ends, it h as, with a minimum of cant and a maximum of wit, plausibly consigned the modern part of that scholarship to error (or, at least, incomprehensibi lity)from Holmes to Pound, Llewellyn to Dworkin, Posner to Bork (and Sc alia, honored as I am to be condemned in such eminent philosophical comp any), with many others in-between. The only philosophers to survive Smiths critical scrutin y are Socrates (because he, like Smith himself, did not propose a soluti on but only called attention to a problem) and what Smith calls the cla ssical school of legal philosophy, stretching from Aquinas through Coke , Blackstone, and Story (because that school, unlike all the others, had a coherent theory of law, though it unfortunately rested upon theistic metaphysics). Early on in its analysis, Laws Quandary sets forth three ontological in ventoriesthree categories describing what we in twenty-first-century A merica believe to be real: everyday experience, science, and religion. The last is excluded from the books ensuing analysis because of the n orm prescribing that religious beliefs are inadmissible in academic expl anations. Laws quandary, to which the title of the book refers, is thi s: Since at least the time of Holmes, lawyers and legal thinkers have scoff ed at the notion that the law exists in any substantial sense or that it is not reducible into our discourse and practices. because we perceive, correctly, that our ontological invent ories (or at least those that prevail in most public and academic setti ngs) could not provide any intelligible account of .
cogent evidence suggesting that we still do believe in the law. Our ac tual practices seem pervasively to presuppose some such law: our practi ces at least potentially might make sense on the assumption that such a law exists, and they look puzzling or awkward or embarrassing without the assumption. The practices to which this passage alludes include the retroactivity of judicial decisions, even novel or unexpected ones. We apply the new rule that those decisions announce to conduct that occurred before the decis ions were rendered. This makes sense on the classical view that judicial decisions merely discover the law but not on the view that they make the law. Similarly, we have a practice of relying upon judicial precedent (so-call ed stare decisis), which is no less extensive post-Holmes than pre-Holme s That made sense in a legal system that regarded judicial opinions as evidence of what the law is. It makes no sense in a legal system tha t regards the judicial opinion itself as the law, any more than it wou ld make sense to bind todays legislature to the laws adopted in the pas t And finally, the fact that the holding of a judicial opinionthe portio n of its text or the aspect of its disposition that binds later courtsi s almost infinitely expandable or contractable, ranging from the mere pr escription that these particular facts produce this particular result to the broad rationale expressed by the court to justify that prescripti on. This is an inconvenience, perhaps, but not a contradiction in a syst em that regards judicial opinions as mere evidence of the law; in a system in which the judicial opinion is the law it produces law that is virtually lawless. Laws quandary, then, is that we believe like legal realists but act as t hough there were indeed some omnipresent, overarching law. Smith proceed s to discuss why the broad variety of twentieth-century jurisprudential movementssociological jurisprudence, legal realism, legal process, law and policy (including law and economics), law and society, law and philo sophy, critical legal studies, law and literature, feminist jurisprudenc e, critical race theory, legal pragmatism and, oh yes, textualismtry bu t fail to resolve this quandary, try but fail to explain how the law ma kes sense without the law. Some of these movements rely upon one or another version of so-called re ader-response theory, which in its purest form holds that the meaning o f words is what they convey to the particular reader. That is conclusive ly enough refuted as a viable theory for law, Smith thinks (or for anyth ing else, I think), by the consideration that every reading would be as valid as every other reading. Other jurisprudential movements require reference to a real or hypothesized author; Smith agrees this is necessa ry in theory, but finds none of the leading candidates for authorship ac ceptable. The actual legislators often intended conflicting meanings, an d often had no intent at all on the particular question at issue. The hy pothetical normal speaker of English may serve for some of laws more modest . functions, but has no apparent qualification to perform laws more ambitious functions, such as establishing social policy or resolving high-level disputes. As for a hypothetical author wiser an d more articulate than we are: If he is indeed that, then we cannot kno w his mind, and we will merely project onto him our own intentions. As interesting as Smiths analysis is, it essentially addresses a legal s ystem that is now barely extant, the system that Holmes wrote about: the common law. That was a system in which there was little legislation, an d in which judges created the law of crimes, of torts, of agency, of con tracts, of property, of family and inheritance. And just as theories suc h as the Divine Right of Kings were necessary to justify the power of mo narchs to make law through edicts, some theory was necessary to justify the power of judges (as agents of the King) to make law through common-l aw adjudication. That theory was the brooding omnipresence of an unwri tten law that the judges merely discovered. Modern governments, or modern gover nments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the peoples representatives. Such a system is quite incompatible with t he making (or the finding) of law by judgesand most especially by une lected judges. Even in state courts, it is a rare case that does not inv olve interpretation of an enacted text. And federal courts have, since t he decision of Erie RR v Tomkins in 1939, completely abjured common-l aw powers except in a few limited fields such as admiralty; they do not pretend to have the power either to find or to make a law unevidence d by enacted text or (in cases coming within their diversity jurisdictio n) by the text of state judicial decisions. The contradictions that Smith finds in a system of common-law-sans-broodi ng-omnipresence do not exist in a system of enacted law, properly applie d It is entirely logical for interpretation of an enacted text to be re troactiveapplicable to conduct that occurred before the interpretation (but not before the enactment)since the text always meant what the cour t said, just as in the pre-Holmesian system the brooding omnipresence ha d always contained what the court discovered. As for giving precedenti al effect to prior decisions (stare decisis), that is merely an administ rative and social convenience: Courts do not have the time to reconsider every legal issue anew, and citizens cannot confidently plan their acti ons if what the Supreme Court has said a statute means today is not in a ll probability what the Supreme Court will say it means tomorrow. As for the fact that the holding of a case is difficult to determine: that poses no problem in principle, sin ce the case is not the law but merely an interpretation of the law. Its indeterminacy may le...
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