Brian Leiter has some harsh words about Steve Smith's Jurisprudence: Beyond Extinction. I actually think that much of the substance of Leiter's criticism of Smith's argument is more or less correct, but I find some of his over-the-top judgments about intellectual quality to be less than fully nuanced.
If I might be forgiven for some very conclusory remarks, I am inclined to agree with Smith (and, for that matter, with Leiter, I think) that the once vibrant "what is law" debate seems to have lost interest for those who are not specialists. One rarely hears discussion of "inclusive" versus "exclusive" legal positivism except among those who are participants in the debate. This contrasts markedly with the excitement generated at an earlier period by the Hart-Fuller-Dworkin-Raz-Finnis (please forgive me for omitting many others) phase of the debate that had wide impact outside the narrow community of analytic philosophers of law.
But unlike Smith, I am inclined to think that philosophy of law, in particular, and high legal theory, generally, are hardly moribund. There are several trends that warrant extended comment, but (as I am blogging during a layover at the Denver airport), I can only offer a sketchy list:
- The reengagement of normative legal theory with sophisticated work in moral and political philosophy. One example is the recent symposium organized by Rob Kar on Stephen Darwall's The Second-Person Standpoint: Morality, Respect, and Accountability. Or (dear to my own heart), a variety of recent work connecting normative legal theory with the aretaic turn in moral philosophy and epistemology. And (less dear, but equally interesting), a variety of moves by consequentialists to absorb or accomodate deontic intutitions--Matthew Adler's work comes to mind. Not mention the second-wave Rawlsian work by Jim Fleming and others. Seana Shiffrin's recent essay on contract theory is yet another example. Indeed, I think that if you are paying attention to anyone other than the most senior legal philosophers, it is obvious that normative theorizing about law is in one of its most interesting and dynamic phases.
- Leiter's Quinean naturalized jurisprudence: Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy by Leiter being the best introduction.
- Work in the Intellectual History of Legal Theory. I am thinking here of Brian Tamanaha's vibrant and exciting work, e.g., his Law as a Means to an End. (I'm sure there are those who don't "count" intellectual history as legal philosophy, but such turf discussions simply do not interest me.)
- The emergence of experimental law and philosophy. John Mikhail's work leads the way here. If you know nothing about the work in philosophy, check out this blog.
- And the what-is-law debate continues (despite all expectations) to generate new, sophisticated, and very interesting arguments. I am thinking by Scott Shapiro, Mark Greenberg, Andrei Marmour, and many others--not to mention Dennis Patterson's recent work on conceptual analysis.
I really must stop, but you get the idea. When I recommended Smith's piece, I certainly did not intend to endorse his claim that "classic jurisprudential claims and questions have been translated into a secular vocabulary and framework that deprive them of their meaning and significance." Smith is right, many claims of classical jurisprudence have been translated into nonreligious frameworks, but in my opinion this does not "deprive them of their meaning and significance." Indeed, I believe that Smith's claim on this score is quite unfaithful to the core of the classical canon--the work of Aristotle and Aquinas--but vindication of that claim will have to wait for another occasion.
For another take on Leiter on Smith, check out Jeff Lipshaw's A Modest Defense of Steven Smith's Little Essay.