Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Joshua Kleinfeld, Professor of Law at Northwestern Pritzker School of Law. Professor Kleinfeld teaches and writes in legal and political philosophy; legislations and statutory interpretation; and criminal law and procedure. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Kleinfeld, what kind of questions does Jurisprudence try to answer? Why do these questions matter to lawyers? Do jurisprudential questions have any practical legal implications? One of the questions that has inspired jurisprudence over time is what is the nature of law? What kind of a thing is this distinctive entity called law and what are its contingent features and its truly necessary features. In that sense, the philosophy of law is related to the philosophy of music or the philosophy of art or the philosophy of science or the philosophy of democracy. In any case, in all cases, what's going on is that philosophically minded people are looking at some social enterprise or artifact of human creation and saying, what are its essential or defining features? What are its necessary and sufficient conditions? In so doing, by examining something we all have intuitive understanding of through experience and trying to give it more philosophical definition and in particular, to separate out its essential and essential elements. Within what is the nature of law conversation, one very important strand has been the relationship between law and morality. Those two questions have become intermingled, the nature of law with the relationship of law and morality. I think it's because both law and morality are normative. Both of them issue imperatives of an ought nature. One ought to do this. One is bound to do that. They are the two great normative systems giving order to social life and so it's natural to ask about the relationship between these two great forms of normative order. Everyone can sense that they are connected to each other. Everyone can sense that they are separate from each other and everyone wonders what the nature of the connection is. In particular, is it contingent or is it necessary? I think there are other interesting facets of jurisprudence of even greater personal interest to me as a matter of fact. One of them is trying to give what we might call synthetic theoretical accounts of different departments of law. So what I have in mind here is things like the corrective justice tradition and tort law, which looks at the way tort law works. The victim accuser confronting an alleged injurer, alleging some private wrong and demanding compensation and response. They try to give a synthetic account where they say, this is about minimizing the cause of accidents. Or this is about doing corrective justice, upholding corrective justice, or this is about civil recourse. You get these comprehensive synthetic theoretical accounts of what a department of law is all about, what its sentry names are. You see the same thing with retributive justice theory and criminal law, or my own creation, reconstructivism and criminal law. Which holds that the special work of criminal law is to reconstruct a violated social order in the wake of some act of wrongdoing. You see the same thing in the contract is the promise tradition, which tries to say that contract is the legal effectuation of the promise principle. The idea that we're bound to each other as free individuals by our capacity to make promises to one another. So those accounts of a department of law which I find personally extremely interesting. I've given a label to that form of philosophy of law. I call it specific jurisprudence. It's a bit of a play on words. Austin famously called general jurisprudence this question of the nature of law. He distinguished it from particular jurisprudence, which are the laws that prevail in any particular state or nation. At that time it was very common to use the word jurisprudence to refer to the laws of England, the jurisprudence of England. We still talk that way, the jurisprudence of the Supreme Court on criminal procedure or something like that. It referred to particular areas of legal doctrine. So to distinguish general jurisprudence from particular jurisprudence, he made this distinction. I'm playing with that distinction. General jurisprudence is the nature of law as such, specific jurisprudence is the nature of a department of law. Third facet of jurisprudence that I think is interesting and worth talking about. There are a lot of specific philosophical questions that law presents. For example, in tort law and criminal law, in many other areas, issues of causation become pressing. What does it mean for someone to be causally responsible for some harm in the world? How can you trace out those lines of causation? How can you distinguish let's say that someone bursts into this studio right now and shoots me. You could say that the shooter is the cause that's very natural, right, of my death. But you could also say that your invitation to me to speak in this studio is the cause of my death after all but for your invitation for me to be in the studio today, I would not have been shot by that particular shooter. You could also say my parents having me as their child is the cause. In fact, causal chains are complicated and infinite. So making sense of causation which is a classic topic in philosophy is also an important topic in law. Or think about discrimination law, we talk about animus. What is animus? Think about the law of religion. We have a guarantee in our constitution that members of religious groups are entitled to the free exercise of religion and the state is not permitted to establish a religion. But what is a religion? Is it different from a cult? Is it different from an organized belief system? Like everybody has their worldview, is that different from a religion? So all of these philosophical topics that arise in the law and one office of jurisprudence, one task of jurisprudence is to address them and try to shed light on them in order to illuminate the world and to advance the work of our lawyers and courts. Finally, and to my mind, very importantly, every one of us as a human being is tasked with the question of how we should live our lives. For lawyers, that question arises as it does for everyone else. How should I live my life as a lawyer? What constitutes a good life? What would be true happiness or fulfillment? What would be flourishing? As the ancients put it, what would be the eudaemonia, the flourishing in the life of a lawyer? So these questions of how to live a good life are to my mind jurisprudential questions as well. In a certain sense they're ethical questions. They're not legal ethics in the sense of, do I have a conflict of interest. They're legal ethics in the sense of is the life of a lawyer a good life or how can I make choices to make it a good life? Those questions to me are part of the universe of jurisprudence as well. The Natural Law tradition of jurisprudence definitely addresses those types of ethical questions. For over a thousand years the Natural Law perspective was the only type of jurisprudence. Is it still relevant today? How did it lose dominance? Here's the amazing thing about that. The natural law tradition dominated Western legal history from the Greco-Roman area before Christianity through the 18th Century when the United States was founded with explicitly natural law language. Right into the early 19th Century when Blackstone wrote. Then it collapsed like a skyscraper collapsing in on itself. Right away in a matter of decades, a legal philosophy which had long been rejected, legal positivism became dominant in the English speaking world starting with England spreading quickly to the United States. Interestingly again, on the continent as well in Germany and France and elsewhere influenced by totally different thinkers than the ones who shaped the Anglo-American tradition. Inspired by people like Kelson rather than people like Austin and Hart. So what are we to make of a 2000 plus year old tradition falling over in a few decades in multiple countries at the same time because of multiple different thinkers. I think it is very implausible that someone wrote something that just convinced the world to change its mind. Social conditions change that made legal positivism formerly implausible, and then become plausible. So what are those social conditions? I think one of them is, as Nietszche put it, the death of God. The religious understanding of the world where it made sense to think that there is a moral order inscribed in the world by God to which human law must correspond simply came to seem implausible in secular society. But I don't think that's the only factor. I think an important strand of the natural law tradition was not religious at all. It was secular, it was based on ideas about the proper order of human society, ideas that Aristotle developed they're known as teleological ideas about the place of law in fostering a community of flourishing. I think those teleological ideas came to seem implausible because of modern science. I think above all, if there's one factor more important than any other, it's the rise of the modern state. At the very foundation of positivism is a picture which is more compelling than any argument. The picture is that the law is a kind of edict of a law-giver, an edict of the state. Most law over most time was not an edict of the state. It was the customs of communities upheld by long established practice. Indeed, for much of human history, there really wasn't a state as we know it today. There were tribes with a tribal organization. There were communities with their community usages and norms. I'll tell you an interesting story about this. In the Renaissance, the Italian City States started issuing these new fangle things called statutes. The great law professors of the day said, what are these things called statutes? Can they be law? That's not what we mean by law. They had learned controversies about whether law, which referred to longstanding usage and custom could be conceptually expanded to include this new fangled thing the statute. Tell you something even weirder about it. When one palace conquered another in war and had its victory parade, they started a practice of carrying one another's statute books through the street as a symbol of their victory over the fallen city. So human history was very, very different before the rise of the modern state with its bureaucratically organized government and its ability to issue edicts backed by the force of the state and called laws. As that form of government came into daily experience, the natural law picture of law as that which is established by the conscious of the community over time just came to seem implausible. The positivist picture of law as an edict of government came to seem plausible. So when H.L.A. Hart defines and defends positivism he doesn't do so explicitly in terms of the authority of edicts of the state. He talks about the rule of recognition. He talks about the separation of law and morality. Modern positivists like Scott Shapiro talk about how law's validity is based on social facts alone rather than moral facts. I think there is something that can only be seen through the lens of history which is importantly true about legal positivism and it is the relationship to the rise of the modern state and the death of God. Let’s talk more about the lens of history as a way to understand ideas. Can you elaborate on what you mean by that? What types of historical events do you discuss in class? My approach is historical, much more historical than the typical jurisprudence class, which focuses on conceptual analysis. The reason for that is that my fundamental conviction is that ideas and events are linked. Philosophical ideas are at work throughout most of the great events that have shaped political and legal history for centuries. Think about, for example, the American revolution. The American revolution is one of the great events in world history, and it is shaped by ideas about the rights of all human beings, democracy, equality, a whole panoply of enlightenment ideas about the rights of man and the limits of the state. Well, think about the French Revolution just a few years later, which was shaped by just the same set of ideas refigured for the French tradition and for an aristocratic situation, more separated from the English tradition. Or think about the civil war, which was shaped by ideas about human freedom and bondage and the rights of the nation versus the state. Or think about the Russian Revolution, which was shaped quite explicitly by Marxists ideas or the subsequent Cold War, which was an ideological confrontation between a liberal capitalist society and a communist one. In every case, ideas are at work in the world. Ideas are shaping events and specifically in legal history, the New Deal was inflected by ideas about legal realism. The unfolding Civil Rights revolution that we're still living with today is affected at all points by competing ideas of the meaning of equality. Or the international law tradition, particularly the law of war and the human rights tradition are shaped by natural law thinking. It's common to hear people challenge philosophy's relevance to law. Why study jurisprudence? Why study philosophy? It's irrelevant. Once the historical perspective comes into view those challenges to philosophies relevance come to look Philistine and totally ungrounded in an understanding of political history. If philosophical ideas are at work in the great events in history, then understanding them as part of understanding those great events. I think the light shines in the other direction as well. So this is actually the more controversial idea. It's the idea that to fully understand the philosophical ideas you have to see the shapes they take and the course of history. So what is it to understand legal positivism? Well, you have to ask hard questions about what does legal positivism mean for judges and lawyers and practice? What did it mean among the judges of the Third Reich? What did it mean at Nuremberg? What does natural law mean? You have to look at the way natural law actually manifested in the course of human history. So this approach to the relationship between philosophy and history or ideas and events is explicitly Hegelian. Hegel said that philosophy is concerned with what he called ideas rather than with what he called mere concepts, because a concept is a purely mental thing or purely noumenal thing, while an idea... And this is his language. ... is the concept together with its actualization. A concept is actualized in a form of life or in an event, or in a social practice, or in a social institution. It was Hegel's conviction that to understand the social world is to understand the ideas, the concepts that are actualized in it. Likewise, to understand the concepts is to see the shape they've taken when they become ideas, when they've been embodied. So my favorite quote from Hegel is, the shapes which the concept acquires in the course of its actualization are indispensable to knowledge of the concept itself. So I actually think pure conceptual analysis is inadequate in both directions, pure conceptual analysis of positivism or natural or whatever else doesn't tell you enough about the world and it doesn't tell you enough about positivism or natural law. We have to understand the concept in the abstract, but then see how it is embodied in events in history in order to fully grasp the concept and its meaning. These ideas not only have an impact on historical events, but they also shape how individual people live their lives and practice the legal profession. Let’s revisit our first question about why jurisprudence matters for lawyers. Do lawyers and philosophers have anything in common in how they approach these concepts? One thing that comes to mind is that when I was in, I went to law school first and then I went to graduate school in philosophy. I had a set of friends when I was in law school that were fellow future lawyers. I had a different set of friends in philosophy, in the philosophy department who are future philosophers. I often wondered how are they different as people? What are the differences? If I had to put it in a single word, the word would be instrumental. Lawyers are a much more instrumental bunch than philosophers. So with lawyers, they're very, very smart and they get an idea in their hands and they say, what can I use this idea to do? How can I use it to maybe advance a political cause. Maybe advance the cause of justice. Change the world in some way. Make some cash.What can I do with this idea that would be useful? The philosophers were less instrumental. They thought that idea is interesting. It sparks something in me, something in my character, my curiosity. I'm just going to sit with that idea and reflect on it and try to understand it as completely as I possibly can because of a certain joy that comes from being a speculative person. I guess it comes down to this Aristotelian distinction between the practical life and the speculative life. What Aristotle meant by that practical comes from a root praktis, which means action in philosophy. Aristotle was distinguishing a life that is focused on trying to understand the world and the world of trying to accomplish something, to accomplish some action. I think the lawyers lean more to the practical and the philosophers more to the speculative side of that practical/speculative division in Aristotelian philosophy. I want to take your question in another direction as well, about the affinities and disaffinities of these two fields. Earlier I talked about how philosophical ideas affect the great events and political and legal history, the New Deal and the Civil Rights revolution and the Cold War and all the rest of these big events. I want to talk about something else now. I want to talk about how philosophical ideas event the daily practice of legal argumentation. The thing you do if you work at a law firm, just you go to work on a very typical Tuesday morning, and I submit that philosophical ideas affect the way you write that brief, the way you talk with your colleagues about a case, the way the case itself is shaped. How? If you're a legal positivist, there are certain moves you make in legal argumentation. Or maybe I should put that differently. It's not just if you personally are legal positivist, if you are working within a highly positivistic legal culture, what you do when you write legal argumentation is a lot of, say, appealing to authoritative governmental edicts, statutes, regulations, maybe case law. Argumentation about which edicts are more authoritative than others. For example, if there are conflicting cases which one is more analogous or more authoritative and should guide discussion in a particular case. The practice of positivistic judging is a practice of authority seeking for support for certain propositions. Of course, anyone who has worked in a firm know we do that every day. That's just part of the practice, but it's not all we do. The practice of lawyering and judging in a world of either natural or legal realism or both is about making appeals to policy around the edges of those appeals to authority. So you ask questions like what interpretation of the statute or regulation would make the most sense, would lead to the best consequences. We might say “that interpretation of the statute can't be right because it would have absurd consequences or counterproductive consequences, or its consequences would be highly inefficient or would create perverse incentives or indeed would be unjust.” The very form of that kind of argument is an appeal to a legal culture in which we expect our law to ultimately be rational and conduced to societal flourishing. That argumentation has deep roots again in either natural law or legal realism or both. When you look at, if you go to Oyez.org and listen to people making oral arguments before the Supreme Court, yeah, they invoke authority sometimes, but boy do they do a lot more than invoke authority. What we actually have is a kind of, should I call it a layer cake, hodgepodge, a marbling. We have a marbling of real estate elements, natural law elements and positivistic elements in our traditions of legal argumentation and our culture of legal argumentation. You see it in the practice of law. Once you see it, you can't unsee it. I like to do something with my students. It's one of my favorite parts of the semester. After we have studied four schools of thought: positive law, natural law, critical legal studies, and legal realism. We have a moot court where they take a real case and they debate it, they argue it just as lawyers would before a court with me playing the role of mock judge, but there's a part of the assignment. They have to implicitly write arguments from a legal positivistic perspective or a natural law perspective or a crit perspective or a realist perspective. They have to craft arguments where they never can explicitly say what their philosophical school of thought is. But implicitly, they have to craft arguments that reflect that school of thought. After the exercise, so the point of the exercise is for them to see how these different philosophical positions affect the crafting of legal arguments, affect the craft of legal argumentation I should say. Afterwards we spend some time listening to oral arguments before the Supreme Court, and we pause and we say, how would you classify the move that lawyer just made? We listened some more and pause and classify. How would you think about this? Once you start engaging in that practice, you start seeing philosophical ideas alive in the most ordinary motions to dismiss, the most ordinary briefs in the appellate court, the most ordinary motions before the trial courts. It's just a part of, it's what we do when we go to work. You start to see that our daily practices are philosophically inflected. There are two advantages to seeing it. The first is there's a certain joy in seeing it. There's a joy because it stops seeming so dead and routine. You start to see that there are big ideas of foot in the things you do when you go to work in the morning if you're a lawyer. There's also a power and a freedom that comes from seeing it because you start to see, ah, I have been making exclusively positivistic moves. Now having seen how these different moves on the chess board of law work, I can now quite explicitly make a realist move or a critical legal studies move, or a natural law move. A range of, let's say, argumentative possibilities opens up before your fingertips that weren't necessarily apparent before. So there's a joy that comes from it, but there's also a freedom from your own presuppositions and a power that comes from it. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!