On Philosophy in American Law (review)

Of utmost concern for both research and pedagogy within any academic discipline is the relationship between the theoretical and the actual. In On Philosophy in American Law, 33 essays answer editor Francis J. Mootz III's call to discuss the current state of legal philosophy and U.S. law. Mootz's inspiration develops from the 1934 essay "On Philosophy in American Law" by legal scholar Karl Llewellyn, who sought to explain that the activities of the law develop not through philosophy-of-law but through the use of "philosophies-in-action"—Legal Realism—which gain traction in response to a perceived social need. Llewellyn's concern then, and Mootz's concern now, is to determine the actual practices and philosophies-in-action that constitute the law.

It is important to note that this volume is by no means a definitive text. Far too often, the individual essays direct the attention of the reader outside of the text itself. Likewise, this text is not for the novice, as even Mootz describes it as a bazaar where it is "best to wander, circle back, and change one's mind about what looks appealing" (xv) and concludes that the "most important contribution of this volume is what lies beneath the essays—the unstated connections, disputations, and elaborations—that must be supplied by the reader" (xi). Despite these criticisms, On Philosophy in American Law provides rhetoric scholars with a model of how to uncover the hidden ideologies and assumptions within the field of rhetoric and to diagnose reflexively its health, viability, and prognosis, especially in relation to the ideal and the actual for professors and students alike.

The book consists of seven parts. Part 1 includes Llewellyn's original essay as well as five essays that discuss its contributions to current American jurisprudence. In this section, essays argue that Llewellyn's work needs to be understood through the study of semiotics (13–18), that Legal Realism needs to be contextualized in relation to a pretheoretical commitment to norms that seem similar to a religious commitment (22), and that Legal Realism faces a new threat by Legal Formalism, called Originalism, (42). Essays by Brian Tamanaha and Larry Catá Backer may be of most interest to rhetorical scholars. Tamanaha's essay underscores the need for advocacy, as Legal Realism's failure to determine one public good means that interest groups compete to enact their vision of law. Backer's article emphasizes law's connection to religion, or logos and faith, to argue that law is the quest for perfect social order.

Part 2 features five essays that explore philosophical themes and techniques important to philosophy and law, although the essays on techniques may seem commonplace to rhetorical scholars. One essay argues that legal scholars should concern themselves with the rejection of arguments by analogy and focus on the adoption of Paul Ricouer's work on metaphor, imagination, and conception in the application of law (82–84). This essay advocates for the examination of narratives as the framework for law (92). Two essays concern theoretical considerations, calling for the development of normative standards for knowing when a law is good (53–63) and holding that the study of law should look toward the study of rhetoric and poetics to see how law creates specific orderings of the world (79). A final essay argues for a revival of Critical Legal Theory so scholars can be ambivalent about the law. Ambivalence, in this sense, means that scholars would examine the harmful and beneficial aspects of law to see how law masks injustice even as it seeks to forward justice and how the law creates new methods to exercise power and prevent injustice (64).

In Part 3, which may not be of primary interest to rhetorical scholars, six essays argue that legal scholarship would benefit from the study of a particular philosophical framework, such as analytical philosophy, political philosophy, moral philosophy, virtue ethics, continental philosophy, or psychoanalysis. Lawrence Solum's discussion on the incorporation of virtue...