Interdisciplinary Legal Education and Scholarship: The Case of Law and Philosophy
The University of Chicago Law School has been at the forefront of interdisciplinary legal education and scholarship, and long before that became the norm in law schools nationwide. Law and economics is only the most famous example. Developed by Aaron Director and then Ronald Coase in the 1950s and 1960s, it took over legal education beginning in the 1970s thanks to the pathbreaking work of Richard Posner, William Landes, Richard Epstein, Frank Easterbrook, Daniel Fischel, Douglas Baird, and others. Some familiarity with the economic analysis of antitrust, of corporate law, and of bankruptcy is now part of the lingua franca for all scholars and lawyers working in these fields.
Perhaps less wellknown is that the University of Chicago Law School hired the first fulltime PhD philosopher to a law faculty in the United States back in the 1930s (he did not even have a law degree). Karl Llewellyn, one of the two leading figures in America’s most important indigenous jurisprudential movement, Legal Realism, was a member of the faculty from 1950 until his untimely death in 1962. (The other leading Legal Realist, Jerome Frank, was a member of the class of 1912 at the Law School!) Llewellyn’s biographer and jurisprudential torchbearer, William Twining, ’58, is the Quain Professor of Jurisprudence Emeritus at University College London and a fellow of both the British Academy and the American Academy of Arts & Sciences. Today, on a fulltime academic faculty of only about three dozen members, Chicago has two philosophers: my colleague Martha Nussbaum (who also does not have a JD but has written widely for law reviews) and myself (I am a JD/PhD). A recent study by researchers at Indiana University Bloomington found that Judge Posner was the ninth mostcited scholar in the world, across all fields of study. It also found that Chicago was the only law school with two faculty (myself and Nussbaum) among the 100 mostcited philosophers in the world.
Why would philosophy loom so large in law schools, and why would Chicago want to have a leadership role in this field? The explanation has partly to do with the nature of philosophy as a discipline and partly to do with the deep affinities between law and philosophy.
Law is, first and foremost, a discursive discipline, by which I mean that lawyers and judges live in the domain of reasons and meanings. We interpret statutes and cases, articulate rules to guide behavior, and then argue about their import in particular cases. Judges write opinions, in which they give reasons for their conclusions. Lawyers offer arguments to persuade judges. Even lawyers (like my wife, who is healthcare regulatory lawyer here in Chicago) who never argue cases in court still deal continuously with rules, their meanings, and entailments.
Philosophy is, however, the discursive discipline par excellence. The English philosopher John Campbell (who now teaches at Berkeley) famously and quite perceptively described philosophy as “thinking in slow motion.” Philosophers argue and reason with a sometimes excruciating attention to detail and inference. Lawyering, especially in an oral argument before an appellate court, is often“thinking in fast motion,” but the key fact is that both disciplines are concerned with rational and logical thought. Lawyering typically demands more attention to rhetoric than has philosophy, at least since the time of the Sophists in the fifthcentury BC. But the pejorative connotation of “sophistry” that has come down to us from Plato’s successful defamation of the Sophistic philosophers should not mislead us: there is an art to persuasion, and that art is only partly exhausted by the rules of formal and informal logic. As the US Supreme Court put it in Old Chief v. US (1997), “A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it.”
Even allowing for that very real difference between legal and philosophical argument, the affinity is clear enough, so much so that American legal education takes its most famous pedagogical approach (“the Socratic method”) from philosophy. Law teachers question students, much as Socrates questioned citizens of Athens about the nature of knowledge and justice. The method is supposed to illustrate and teach the kind of dialectical skill that lawyering, as a discursive discipline, requires.
It is equally important, however, that philosophy as a discipline concerns itself with literally everything, whether science or art or morality or law. We can always ask of any of these domains of human activity, “What is its nature? What makes it what it is?” Philosophers have asked this about science, about art, and also about law. This is why “jurisprudence”—philosophical theorizing about the nature of law and legal reasoning, and the differences between law and morality—has been a staple of the curriculum wherever law is taught at the university level. Indeed, it is a required subject for all law students at Oxford, as it is for most law students in Europe and South America. (Law is, however, an undergraduate subject in almost all these jurisdictions, unlike in the United States. I would not require “jurisprudence” for our students, but I am opposed to most requirements generally.)
As with many areas of philosophical inquiry, philosophizing about law simply brings to light and makes explicit what is often implicit and unargued. We have all heard someone criticize a Supreme Court decision as “politically motivated, rather than following the law.” But that already presupposes we know where the boundaries of law and politics are located, precisely what jurisprudential inquiry tries to illuminate! So, too, when commentators criticize a judge’s reasoning in support of her conclusion, they invariably presuppose claims about the nature of law, legal interpretation, and the character of legal reasoning. It is the task of jurisprudence to brings those presuppositions out in the open and subject them to scrutiny. Much of my own jurisprudential work has been aimed at a sympathetic reconstruction of the ideas of American Legal Realists, who have often been treated harshly by other legal philosophers. But the American Realists, who were first and foremost very accomplished lawyers, had deep insights into how law works in the real world and how judges really decide cases. In twenty years of teaching jurisprudence, including American Legal Realism, I have been struck by how many students find it to be one of the most “practical” of courses, not because it taught them particular legal rules, but because it helped them understand legal reasoning and how judges decide cases, as well as bringing out into the open the implicit jurisprudential premises of both jurists and scholars (including their other teachers!).
The influence of philosophers on the law has also been substantial. When the “Chicago School” of economic analysis of law took over the legal academy starting in the 1970s, it was philosophers such as the late Ronald Dworkin and my colleague Martha Nussbaum who articulated an alternative to “wealth maximization” (or efficiency) as the normative goal of legal regulation. (Dworkin defended the idea that the goal of the law is to protect the preexisting rights that individuals have; Nussbaum has argued that the law should maximize the ability of humans to realize an array of capabilities that make for a worthwhile life.) When Britain in the 1960s debated whether to decriminalize homosexuality, it was H. L. A. Hart of Oxford, the greatest Anglophone legal philosopher of the last century, who extended John Stuart Mill’s utilitarian philosophy of the nineteenth century to argue that the law ought not to criminalize consensual sexual behavior—his view ultimately prevailed. The other great figure in twentiethcentury legal philosophy, the Austrian Hans Kelsen, designed the system of “constitutional courts”—courts charged with judicial review of all legislation for its constitutionality—that has been adopted through the civillaw world. Nussbaum’s work with Amartya Sen in support of the idea that the measure of economic success is not simply gross domestic product but the extent to which a society enables its citizens to realizes the different capabilities central to a worthwhile life (imagination, play, feeling, reasoning about how to live) has influenced the United Nations and emerged as alternative to per capita wealth as a metric of economic success.
Law and philosophy enrich the curriculum in various ways. Each Spring, we try to make available at least one and sometimes two “law and philosophy” courses. I almost always teach the basic Jurisprudence course noted earlier, and Nussbaum usually offers a course on Feminist Philosophy or Emotions, Reason, and the Law. Every year, we offer a Law and Philosophy Workshop, which brings in scholars from elsewhere to discuss their work. At most law schools, unfortunately, the workshop format is basically just an opportunity for faculty to invite their friends to present their latest work. We approach it differently. Each year we select a theme, so that over the course of the year the students develop a competence with a scholarly literature and a set of ideas and arguments. We often ask speakers to present previously published work, if that is the work that will help students the most. This year, Nussbaum, with our Law and Philosophy Fellow Sarah Conly, is running a workshop on issues about Life and Death, which ranges across issues such as abortion and euthanasia and engages philosophers and lawyers. Last year, I ran the workshop on the theme Freedom and Responsibility, where we took up questions such as, Is anyone really morally responsible? Can we hold people responsible without blaming them? Is criminal punishment justified if what people do is the product of biology?
The Law School’s investment in philosophyrelated offerings has, interestingly, helped with student recruitment. Five or six years ago, only about 5–6 percent of the firstyear class were philosophy majors; in Fall 2013, it was almost 10 percent. Many of these students—with undergraduate and graduate degrees from the best universities in the world—have come here rather than Yale or Harvard on Rubenstein Scholarships, which provide three years of tuition for outstanding students, thanks to the transformative gift by David Rubinstein, ’73. These students have varied ambitions: some will be the law professors of tomorrow, others will be the leading lawyers and jurists of the next generation. The commitment of the University of Chicago Law School to interdisciplinary research and teaching has brought them here.
David Hills, a philosopher at Stanford, famously said that philosophy is “the ungainly attempt to tackle questions that come naturally to children, using methods that come naturally to lawyers.” His apt observation prompts a very personal observation, one offered by a philosopher/lawyer who is now fortunate to have many economist/lawyers as colleagues. I graduated from Michigan, taught at Yale and Texas and Oxford and London, and have presented my work at almost every leading law faculty in the Englishspeaking world. Without a doubt, the lawyer/philosophers and the lawyer/economists have a tight intellectual bond. It is not that we share the same underlying theory of human behavior or emphasize the same methodological tools. It is rather that, like real lawyers, we love an argument and are happy for that argument to be ferocious and cutting. We want to figure out what is true, even if doing so is not polite. But no one gets upset, or takes offense: arguing is what we do. We fight our battles in the domain of reason and meaning, something that unites the lawyers with the philosophers and the economists, as it does at the University of Chicago Law School. Socrates would have been pleased.