A New Beginning

Legal theory needs a new beginning.  Over the past few years, I have watched, largely as an observer, as the information technology revolution has come to law. Sure, its been coming for a long time, but over the past few years the changes have become unavoidably obvious, even to the most dower disbelievers. It’s here now, and like the titanic waves of the ocean, it is reshaping the landscape of the law and its role in society.  The waves of change are harbingers of the future of law, which promises greater social justice by aiding in redistribution of power and wealth through access to justice and new economic alliances. But, it also holds the potential for unbalancing the structures of democracy, encouraging faction, and distorting democratic discourse. The changes occuring now undermine traditional communities, even as they encourage new forms of sociality that scarcely resemble the familiar and seem to limit the day-to-day quotidian acts of courtesy and kindness that have long been viewed as building blocks of civil society.

Tracking changes like these and commenting on their meaning seems to be the natural work of legal philosophers. Understanding the philosophical implications of law in an information society entails investigation into the informational nature of law as it has traditionally existed, and speculative consideration of the possibilities for its future.  Even more significant, perhaps, is the need for competent normative guidance. Philosophical ethics has much to offer in the analysis of the present moment in legal philosophy.  Beyond the positivist description of law, a new generation of legal philosophers are recovering normative jurisprudence, freed from natural law theories rooted in naive medieval metaphysical realism, to consider anew the foundations of morality that are capable of guiding law and communities into the future. (For example, see Robin West, Normative Jurisprudence: An Introduction (2011)).

The current state of affairs in legal philosophy has left it ill-equipped to take on these tasks, despite the obvious need.  Two features of Anglophone legal philosophy contribute to this impasse. The first is legal positivism, which has two interelated foundational claims made by Thomas Hobbes and David Hume, respectively: that law is what ever the legitimate authority has promulgated; and that a normative claim cannot be derived from factual propositions. Ultimately, both claims are captured in the claim that law is determined by social facts. Although this basic claim of positivism has taken many forms, the influence of the philosophers that Richard Rorty identified with the “linguistic turn” (notably Russell, Moore, and Wittgenstein in the UK, and Quine in the US), left a legacy that today is recognizable in the lineage of John L. Austin, HLA Hart (and even the natural law philosopher, John Finnis), which marks the mainstream of Anglophone legal philosophy.  That mainstream is defined by elements of coherentist epistemology and  conceptual analysis that have earned this label of “analytic” jurisprudence for the Anglophone tradition. Its current shape has been defined by philosophers like Brian Leiter, Dennis Patterson, and Brian Bix,  who collectively have done much to set the agenda of American legal theory. Of course, sociologists, like Brian Tamanaha, have contributed to legal philosophy as well by challenging the philosophers’ methods and conclusion, but if there is a mainstream of American jurisprudence today, it is defined more by the analytic philosophy of law than by any other approach. (On this view, for example, Hans Kelsen is not mainstream because, although agrees with legal positivism, he derives his theory more from Kantian sources than do the Anglophone theories.)

Despite its broad acceptance, analytic jurisprudence no longer meets the needs of contemporary legal theories. The epistemological concerns of the linguistic turn are increasingly irrelevant in the contemporary era. Neither the naturalistic turn described by Quine and applied by Leiter nor the “post-modern” Wittgensteinianism defended by Patterson, are capable of explaining the informational nature of law or providing normative guidance for the evolving informational environment in which law is both operative agent and outcome.  This means that the legal philosophers have left the field to sociologists, who are making gains, particularly in empirical legal research. As impressive as these are, sociology alone cannot displace philosophy, nor can it “position” philosophical discourse as a second-order analysis. I will have much more to say about this later, but for now, let me rest on an obvious observation that philosophy deals with foundational concepts and presuppositions, including those of the social sciences. A part of its work involves holding the sciences to the limits of those foundations. The information revolution rests on foundations that are new for law. A part of the work of the legal philosopher is to act as an engineer who specializes in understanding the new concepts and is capable of creating new conceptualizations and new possiblities for understanding.  New philosophical concepts  have enormous significance for legal theorizing. The way ahead for legal philosophy, I believe, lies in the philosophy of information, which I understand to be the attempt to understand the significance of the information revolution for traditional philosophical questions.

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