“Jurisprudence” generally is defined as “the philosophy or science of law.” Pardon the pun, but the definition does not do justice to the topic. Questions like “what is law?” and “what is justice?” and “how do we judge the first in relation to the second?” are intrinsically interesting, as well as important. The definition is, however, a good indicator of the deep problems with the study and understanding of law today. Philosophy—the love of wisdom—for well over a century has meant the “rational” study of basic questions about how we know things. Not that those questions are unimportant, but they have been reduced to the “analytic” study of the definitions of particular words. So the “philosophy” of law has become little more than the “unpacking” of the meanings of particular words (like “law”) related to, well, law. And the “science” of law? Well, that is the playing out among academics of the conceit that human behavior can be reduced to a set of rules we can quantify and even chart.
The problem with jurisprudence comes from its very origins, and so seems insoluble. Those origins lay in the desire among lawyers to lay claim to a “science” all their own. That is, legal academics have wanted to claim that law, like any other social institution, is “worthy” of being studied as a thing in itself, like politics or economics. And in a sense these lawyers are right, for the law is like politics and economics in that the attempt to study it in isolation results in a fundamentally skewed understanding of law (or politics, or economics). For all of these aspects of public life are rooted in and aim at the human good. And, as in politics and economics, the modern, “rational” trend is to ignore this existential fact, leaving the nature of that good and its importance in determining the proper shape and limits of law undefined and unexamined, but still present as largely unexamined assumptions.
I do not mean by this that everyone who writes about the nature and purpose of law rejects the idea of a human good. Far from it. Scholars in this area concern themselves almost exclusively with formulating, criticizing, and/or modifying theories of law and justice in ways they think will enhance human well-being. Moreover, central problem with judicial decisions over the last several decades has been the concern among judges to do what is “right” or “just”—by which they mean vaguely “good”—rather than do their actual job of determining what is required by the law. But the nature of the good, its relationship with law, and whether the good is something that can be achieved through law, all are topics that go unexamined. Instead, the answers to questions in these areas are largely assumed in a way that brooks little or no debate.
For example, Mark Tushnet, perhaps the most amiable writer in the “Critical Legal Studies” movement, has written many times of the need to put aside rights theories. His argument, in a nutshell, is that rights, on balance, are not useful for “the party of humanity.” By this term Tushnet means to refer to the good guys. You know them, of course. “The party of humanity” is the people who advocate for and suffer with the poor, the downtrodden, the powerless. And that means, of course, that they are the left. Tushnet spends most of his time within the echo chamber of the legal academy, so perhaps we should excuse the myopic arrogance of this formulation without further comment. The deeper point is that he feels no need to reflect on whether the goals he posits—material benefits provided and/or guaranteed by the government for those he deems oppressed under current circumstances—are real, good, and capable of achievement through law. As to the moral enormities committed in the name of “humanity?” Well, he argues, people like Stalin were bad, so we cannot blame their actions on the good guys (I suppose I should say “good persons).
I do not mean to claim that members of the Critical Legal Studies movement, or the more than 90% of other academics working in the area of jurisprudence who are politically on the left, have not seen real injustice or that injustice, unfairness, and other forms of suffering should not be addressed—sometimes through law. My point is that certain assumptions have become so deeply ingrained in the academy that debate and even thought at the level of principle has become obsolete. More, questions in this regard are positively unwelcome on the grounds that there could be no answer to them, and that pursuit of such answers must inevitably lead to bad feelings, violence and oppression.
In particular, one who writes or speaks of natural law in the traditional sense of laws rooted in the nature of man and the order of being, not only courts but guarantees his own irrelevance to debates in the field. Such arguments are considered disproven, along with the existence of any one, particular God whose creation is capable of prescribing right action. Pointing out that the natural law tradition predates Christianity is no solution, for the audience has left the building before one gets to this point, having no interest in a moral discourse rooted in duty and notions of virtue. Indeed, even that small, insular group claiming to propagate a “new natural law” rejects the prescriptive nature of the natural order of being. Such considerations bring up discussions of standards to which we must conform; they are phrased in a language unwelcome by those who consider themselves hardened advocates for the “real” interests of people, which must be tallied up in terms of goods sating human appetites.
Perhaps the most telling example of this situation is a rather old one. John Rawls wrote A Theory of Justice more than forty years ago. It was a huge sensation at the time and for many years thereafter. Of course, his work is no longer so relevant in a post-rationalist age, when brighter lights like Alasdair MacIntyre have made clear our need to address deeper questions and longings in pursuit of a meaningful life. But the lawyers remain utterly besotted with Rawls—inescapably and at times almost humorously so. The reason is not hard to find. For Rawls provided the perfect combination of materialism and imagination, or concern with building castles in the air while also rearranging the lives of everyone, all in the name of justice.
At the heart of Rawls’ theory is cake. Yes, cake. In essence, he explains, justice is fairness, like the rule we all understand from our childhood, that the one who cuts the cake must be the last one to choose a piece for himself. And when a group of suburban children we want to teach to share “fairly” have a cake to cut up, this probably is the best rule. But, of course, the homely example obscures a universe of assumptions regarding human nature and the human good that Rawls reveals only obliquely, if at all. Is life like a cake? Are opportunities for human fulfillment like a cake? Do we all have an equal right to an equal portion of everything, as if it were a cake given to us as a group by some benevolent superior baker?
Nonetheless, cake pervades Rawls’ scheme of life. For his “theory of justice” is not just, or even primarily, an argument for the truth and applicability of a particular conception of what is just. It is, rather, the justification for establishing iron standards of political behavior and, most important, the distribution of human goods in every aspect of our lives. Cake is the metaphor for our life as a whole, for Rawls, and he uses it to tell us what our society should look like, and how we should regulate human conduct. Through hundreds of pages of discourse, Rawls gives us “thought experiments” based on cake and uses them to come up with the draconian standard he would apply to essentially all of human life—the difference principle. That difference principle would permit inequalities only if they benefit the worst off.
As moral argument, the difference principle has some force. Our society and our souls would be better if we paid more attention to how our actions affect the lives of the weakest among us. But this is no mere argument concerning how we should respond to the call to virtue. This is a theory of justice as an imperative law, dictating coercive political action and rearrangement of the very structure government and the structuring of all of society by that government.
What makes Rawlsian analysis so insidious is his refusal to admit that what he is doing is constructing a government to reconstruct society. For Rawls consistently portrays himself as constructing principles of action—and principles all of us must accept if we are to be consistent, rational thinkers. For Rawls does not merely argue for his cake, he attempts to prove that we all have accepted and so owe allegiance to the cake. The well-known device he uses is the “veil of ignorance.” Playing off of liberal social contract theory, Rawls argues that, because we are by nature kids possessed of a cake, we by nature would abstract ourselves from all of our individual characteristics (race, sex, abilities, work ethic—everything) when deciding how to cut “it” (meaning society) up. And that means that all of us, all the time, have to accept the kind of society, as well as the particular policies at every point in time, that would result from a choice made from behind the veil of ignorance. We always, he argues, would insist on basic liberties, but also on equality, and on arranging all inequalities to the benefit of the worst off among us where public goods (code for stuff and opportunities like jobs and job advancement) are concerned. This is what we would have accepted, so we will be taken as having accepted it, so when the government takes things from us to give to others it considers more deserving, we already have consented to its doing so.
This characterization no doubt seems a bit unfair and overwrought. And I would not want to overemphasize the totalitarian possibilities inherent in Rawls’ scheme. It is social democracy, which is what we are in the process of getting right now, and that certainly is a softer form of tyranny than Stalin’s. But the implications remain dark. For Rawlsian analysis says that those who disagree are, at best, irrational, lacking common sense, and so to be pitied, not welcomed into a conversation. Rawls admitted, later in life, that his system is built on essentially liberal assumptions. This was, of course, in response to criticisms from his left—those who thought him not radical enough. And the result is a legal discourse that questions the value of the procedural safeguards he accepts that would protect individuals from the full brunt of fights over the cake. Arguments now arise to the effect that “you got more cake last time, so we should have more this time.”
Law is an important social institution, by nature aimed at helping us organize our common lives by integrating reason with experience in light of our shared customs and beliefs. Justice is a crucial goal of law, which is intended to protect the reasonable expectations of people and communities as they face the inevitable conflicts of social life. But human law is deeply embedded in the culture of a people—including its conceptions of the common good. And this means that attempts to use it as a tool for achieving particular goals can be both highly disruptive of the social order and highly unpredictable in their effects. Now that the vast majority of those studying the law reject our social order as fundamentally unjust and seek to use law as one tool among many (e.g. “civil disobedience”) to secure the things they assume are good, there is little to discuss in “jurisprudence” and, sadly, much about which to argue and fight. And that is a loss for us all.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore.
 I refer in particular, here, to Mark Tushnet, “An Essay on Rights,” 62 Tex. L. Rev. 1381 (1984).