Law's Quandary (review)

Steven D. Smith is something of an apostate voice in the law school community. In preceding works on the First Amendment's Religion Clauses (1995, 2001), Smith has attempted to persuade colleagues to abandon conventional legal reasoning about the origins of those clauses and to question the efficaciousness of principle and theory-based interpretations of them. Law's Quandary takes Smith's skepticism to conceivably its highest level of generality and abstraction to interrogate the meaningfulness of contemporary practical (appellate) and academic jurisprudence.

The thematic frame for this skepticism is a sociology of knowledge story line that basically goes like this: since Oliver Wendell Holmes's Path of the Law (1897), practical and academic jurisprudence has, for all intents and purposes, striven to emancipate itself from the traditional idea of "the law" as "something that precedes and transcends" (45) human authority and promulgation by virtue of being grounded in theological principles or the law of nature. Smith locates this putative emancipatory impetus against "the law" in the belief that the law ought to be understood as a "rational and scientific enterprise" (1). This belief, as Smith characterizes it, underlies various conceptions of the law which are seen as what lawyers and judges do, or the ways in which they write and reason, or as policy-making, moral philosophy, or a mode of practical reasoning. All of these ways of seeing, argues Smith, are meant to defy the idea that law is something independent of the agents or institutions that produce or comment about it.

The meta-theme of this story line is that, despite the relative strengths of these alternative ways of displacing "the law" (deftly recapitulated by Smith), there is "powerful evidence of a persisting belief in 'the law'" (51) located in various legal practices, such as appeal to precedent, and conventional commentary about it. Smith posits that this evidence indicates a dilemma: the legal community covertly holds to a belief in "the law" which it actively repudiates. Smith's contention is that this dilemma is actually a "metaphysical predicament" (2) related to ontological "inventories" (9).

Smith explains that these ontological inventories constitute beliefs about the existence of essential things (material and otherwise). Basically, these inventories are derived from everyday experience, and they warrant ways of seeing, conceptualizing, and experiencing the world. Smith (suitably) acknowledges that a concern with ontological inventories is not standard fare for legal studies (20). Nonetheless, cooperative readers will find that Smith is a sufficiently persuasive writer to pull them into an appreciation of his philosophical efforts to make ontological categories significant for understanding law and legal reasoning.

Perhaps Smith's central effort in that regard is to persuade readers that the aforementioned dilemma is largely a consequence of today's inventories, which, he claims, are impoverished in the sense that today's inventories neither succeed in making sense of legal enterprises nor explain how those enterprises can make sense without a belief in "the law" (96). (This is in contrast to the ostensibly more adequate traditional ontology behind "the law.") Much of this book is given over to a self-proclaimed "Socratic audit" (16) of the relativly inefficacious attempts the legal community makes to characterize the law as a rational and scientific enterprise. Smith allows that ontological audits are like early Socratic dialogues in that they are (for various reasons) necessarily an imperfect and uncertain mode of analysis that normally "end in failure or perplexity" (18). Nevertheless, Smith deems his audits sufficiently successful to conclude that, over all, contemporary jurisprudence results in inadequate accounts of how the law works, particularly in regard to the source of the authority of law, or what Smith refers to as "the ontology of semantic meaning" (105).

As I read them, these audits also have an understated ethical dimension inasmuch as Smith characterizes today's ontological inventories as having produced "a sort of intellectual dereliction or a miscarriage of cognition and articulation" (21) when it comes to the law. Smith is careful not to be fussy at...