Review of On Philosophy in American Law (Hardcover)

Some argue that American jurisprudence from the standpoint of creativity and innovative approaches is pretty much dead.This interesting collection of some 35 articles surely refutes that contention.The collection traces its origin to a short 1934 law review article by Karl Llewellyn titled "On Philosophy in American Law" (the article is reprinted with its original pagination as the initial essay in the book). Llewellyn's article is a whirlwind tour of American legal philosophy from the revolution to the 1930's. Llewellyn makes it clear that while he can trace the origins of the various developmental stages in American legal thought, his real interest is law in action and if it meets social needs.

In order to assess the current relationship between law and philosophy, the editor asked 40 or so leading contributors to the field to write short (4-6 page) essays on topics illustrating the role of philosophy in American law today.The results are very interesting and somewhat challenging.The best place to start is with the editor's own introduction; the three concluding essays which are commentaries on the essays also provide a useful structure for tackling the essays.The editor has grouped the essays under six categories which also helps orient the reader.Several points become clear as one reads the essays. First, there is enough creativity and energy represented here to light the city of Cleveland--American jurisprudence is well and alive.Second, over the last quarter century or so, many joint Ph.D.'s in philosophy and J.D.'s have begun to teach in law schools and to publish abundantly.This has resulted in (perhaps) unduly technical theories and philosophical constructs (yes I am thinking of Wittgenstein) being applied to American law.As some of the contributors recognize, there are few of us out here prepared to debate the fine points of "consequentialism," Gadamer, "virtue jurisprudence,"and Ricoeur on John Rawls. It would seem that American philosophy of law runs the risk of contracting into a smaller and smaller group of joint Ph.D.'s who spend there time talking and arguing with each other, rather than a broader readership. Fortunately, there are some folks such as Dennis Patterson who can carefully explain a philosophical concept so it is understandable, and then in a cogent manner apply it to a legal issue so that the result is exciting.

Finally, the gap between legal philosophers and those of us who practice law has grown it seems.Not one essay I believe is written by a practitioner; some contributors (as would probably Llewellyn if he were still around) point this out and it bears some thought. Law and the philosophy of law should not be separated by a gigantic moat if philosophy is to play a meaningful role in the real world. All that being said, this is a stimulating collection that creatively touches on everything from psychoanalysis to hermeneutics to "Continental philosophy" to rhetoric and Raz, Postema, and Posner and lots in between.Because the essays are short, the reader does not get bogged down in lengthy technical discussions; the editor's goal seems to have been to get it out concisely or forget it. Key sources in each essay are identified at the conclusion of the article; each contributor is identified as to current position (including email adddress) and leading publications; a helpful name index is included. Llewellyn wanted us to take a fresh look at philosophy in American law--in some 300 pages the editor has abundantly accomplished that goal.



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