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Virginia Law Review
David Luban*
Introduction
PROFESSOR Gerald
contemporary Postema
analytic offers a gentle
jurisprudence butantisocial,
for being damningantiphilo
critique of
sophical, ahistorical, and, ultimately, mistaken about not only the prov
ince of jurisprudence but also the nature of law. He also offers an ele
gant restatement of what jurisprudence with a wider ambition must be
like, and it is a jurisprudence in which time and history are central.1
Postema's basic diagnosis is that analytic jurisprudence accepts a pe
culiarly narrowing premise of Austin: that the province of jurispru
dence—by which Austin meant the subject matter it studies—is solely
"the core concepts of the professional practice of law—concepts of legal
right and duty, possession, ownership, liability, fault, person, thing, sta
tus, intention, will, motive, legal sources, legislation, precedent, custom
and the like."2 Although Hart and his successors in the Anglo-American
tradition mostly reject Austin's definition of law as commands backed
by threats, and not all are positivists, Postema believes they retain Aus
tin's narrow understanding of the province of jurisprudence. Jurispru
dence is the province of legal concepts used in professional practice,
which turns out to be well-suited for the tools and intellectual style of
analytic philosophy. A broad understanding of law in its social, econom
ic, cultural, religious, political, and historical dimensions largely vanish
es from jurisprudence so conceived.3 Analytic jurisprudence becomes
University Professor in Law and Philosophy, Georgetown University Law Center; Class
of 1984 Distinguished Visitor in Ethics, Stockdale Center for Ethical Leadership, United
States Naval Academy.
Gerald J. Postema, Jurisprudence, the Sociable Science, 101 Va. L. Rev. 869 (2015)
[hereinafter Postema, Jurisprudence].
2 Id. at 874.
3 This complaint is reminiscent of Felix Cohen's in Felix S. Cohen, Transcendental Non
sense and the Functional Approach, 35 Colum. L. Rev. 809, 809 (1935), which begins by
mocking the "heaven of legal concepts," where "one met, face to face, the many concepts of
jurisprudence in their absolute purity, freed from all entangling alliances with human life."
Cohen adds: "The boundless opportunities of this heaven of legal concepts were open to all
properly qualified jurists, provided only they drank the Lethean draught which induced for
getfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean
draught was entirely superfluous. They had nothing to forget." Id. It is important to see that
Postema's complaint differs importantly from the realist critique of legal concepts as "tran
903
unsociable, not only to the social sciences, but also to the ambition of
genuine philosophy, famously defined by Wilfrid Sellars as the endeavor
to understand "how things in the broadest possible sense of the term
hang together in the broadest possible sense of the term."4 Postema goes
so far as to call analytic jurisprudence "philosophy-phobic."5 This is an
important point, because it makes it clear that Postema's complaint is
not the familiar realist and law-and-society call for replacing jurispru
dence with something more scientific—a view that Postema rejects be
cause it "effaces any ambition of a truly critical theoretical perspective
on legal practice."6 The realists wanted less philosophy in jurisprudence,
where Postema wants more.
Postema levels an additional complaint against analytic jurisprudence,
directly related to the theme of this symposium. Analytic jurisprudence
largely ignores the history of law and the history of jurisprudence—two
different, if related, points. Its most distinctive intellectual style consists
of drawing distinctions, formulating precisely worded principles, and
testing them against linguistic and moral intuitions; but Postema objects
that "[p]hilosophy that proceeds primarily by plumbing and pumping in
tuitions is inevitably and uncritically in thrall to the present."7 More spe
cifically, Postema accuses analytic jurisprudence of confining its atten
tion to time-slice legal systems—that is, legal systems as they exist at a
given moment of time—and he argues that this ahistorical procedure
"can offer very little illumination of law and legal practice."8
Postema offers two general programmatic suggestions for jurispru
dence besides greater historical consciousness: sociability and syn
echism. Sociability, as suggested above, has two dimensions. First, it
means interdisciplinarity—a continual dialogue with the study of legal
phenomena by the sciences, humanities, and even theology. Second, it
means embedding jurisprudence in general philosophy, which in
Sellars's words encompasses "not only 'cabbages and kings', but num
scendental nonsense." Id. The realists were reductionists who wanted to analyze legal propo
sitions functionally, as obliquely phrased predictions of judicial behavior. Postema is antire
ductionist.
4 Wilfrid Sellars, Philosophy and the Scientific Image of Man, in Science, Perception and
Reality 1, 1 (1963).
5 Postema, Jurisprudence, supra note 1, at 879.
6 Id. at 899.
7 Id. at 891.
8 Id. at 888 n.66.
bers and duties, possibilities and finger snaps, aesthetic experience and
death."9
Synechism is a less familiar idea, drawn from the philosophy of C.S.
Peirce. It is the commitment to seek continuity among phenomena. Con
tinuity-seeking may sound like another version of sociability, but as I
understand it, synechism is a much more specific and theory-laden re
quirement. Peirce was metaphysically committed to the existence of ac
tual continua everywhere in nature, history, and human psychology. So
synechism will impose a certain demand on all systematic studies,
namely discerning those continua. In particular, synechism commits us
to a certain kind of historiography: The historian's job is to unearth con
tinuities between past and present rather than studying ruptures. This, it
seems to me, is a contestable commitment that rules out a great deal of
important historical work.
Furthermore, Peirce understood synechism to imply that ideas are in
trinsically temporal and historical phenomena. Although Postema does
not endorse this general thesis, he does argue for a special case of it,
namely that law is "intrinsically temporal."10 This conclusion is central
to his argument against the possibility of time-slice legal systems. It,
too, is contestable; but, I shall suggest, Postema can reach his conclusion
on grounds other than synechism, and I agree with him about law's in
trinsic temporality.
Before discussing law's temporality and synechism, I offer two more
general remarks about Postema's complaints against analytic jurispru
dence.
11 W.V. Quine, Two Dogmas of Empiricism, 60 Phil. Rev. 20, 31-34 (1951), attacked the
distinction between analytic and synthetic truths and the reduction of empirical knowledge to
logical constructs of immediate experiences. Sellars, supra note 4, at 127-34, 164-70, fur
ther undermined reductionism, and Ludwig Wittgenstein, Philosophical Investigations
(1953), broadly attacked the representational view of language underlying the classical pro
ject.
12 H.L.A. Hart, The Concept of Law (1961).
"Postema's comprehensive study of twentieth-century Anglophone jurisprudence con
curs: He divides it into two mostly nonintersecting tracks, one deriving from Hart and the
other from Holmes. Gerald J. Postema, Legal Philosophy in the Twentieth Century: The
Common Law World 3-5 (2011). On the "Holmesian" track, see id. at chs. 2-3.
14 See, e.g., United States v. Marshall, 908 F.2d 1312, 1335 (7th Cir. 1990) (Posner, J.,
dissenting) (describing "the disagreement between the severely positivistic view that the
content of law is exhausted in clear, explicit, and definite enactments ... and the natural
lawyer's or legal pragmatist's view that the practice of interpretation and the general terms
of the Constitution (such as "equal protection of the laws") authorize judges to enrich posi
tive law with the moral values and practical concerns of civilized society"). The legal prag
matist, of course, is Posner himself. See Richard A. Posner, Pragmatic Adjudication, 18
Cardozo L. Rev. 1, 1-3 (1996). The version of natural law Posner has in mind is probably
Dworkin's version. See Ronald A. Dworkin, "Natural" Law Revisited, 34 Fla. L. Rev. 165,
165-66(1982).
15 H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the
Noble Dream, 11 Ga. L. Rev. 969, 970-71 (1977).
16 For Dworkin, legal philosophy is "the general part of adjudication, silent prologue to
any decision at law." Ronald Dworkin, Law's Empire 90 (1986).
However, as Postema notes, Dworkin too "seems to share the amnesia of the history of
the discipline characteristic of the Hart-sourced stream." E-mail from Professor Gerald
Postema to author (Dec. 11, 2014, 9:48 EST) (on file with the Virginia Law Review Asso
ciation).
18 Postema, Jurisprudence, supra note 1, at 890. Again: "Philosophical jurisprudence, first,
seeks fundamental comprehensive explanations that propose to understand phenomena of
law as an integral aspect of human social life and human experience." Id. at 896.
Melody
whole, and this awareness itself takes place in time (and not, Postema
explains, "from some point outside the temporal process"25). It involves
the listener projecting what she has just heard into what is to come—
and, if the melody takes an unexpected twist, reintegrating what has al
ready been heard into a different totality. Listening to music is, in this
sense, holistic. Postema next argues that individual intentions, which he
understands as partial and indeterminate plans, share this same holistic
mindfulness of time: Plans project both forward and backward into
time.26 And so does law, understood as a method of normatively guiding
social interaction.27 Normativity requires both citizens and officials to
incorporate law into intentions and plans, and as we have just seen, these
require coherence over time. Thus, Postema concludes, "the normative
coherence of momentary legal systems is derivative, depending entirely
on their coherence over time."28 He therefore rejects the beads-on-a
string view of law, or, as he puts it, the view that "the identity of a legal
system over time is a function of identity-maintaining links among mo
mentary segments of that legal system."29 Momentary segments taken by
themselves have no normative authority—a powerful argument, in my
opinion.
Although Postema is talking about entire legal systems, a similar ar
gument might be made about individual rules. Returning to my example
of black letter law, notice that even written statutes and constitutional
provisions are continually being interpreted by both citizens and offi
cials, and therefore the beads on a string are not quite as internally
changeless as the model suggests. Consider, for example, the Equal Pro
tection Clause ("EPC") of the U.S. Constitution. Under its original
meaning, it was a guarantee that government would protect everyone,
25 Postema, Melody, supra note 24, at 208. These two standpoints correspond roughly with
what philosophers of time call the "A-series" (past, present, future), which is indexed to
some temporal being's now, and the "B-series" (September 18, September 19, September
20), which orders events temporally without indexing them to a privileged now. Postema's
point is that human awareness of time is ineluctably "A-series" awareness.
26 Id. Here he adopts the analysis of intention offered by Bratman, citing Michael E. Brat
man, Faces of Intention: Selected Essays on Intention and Agency (1999). Postema, Melody,
supra note 24, at 209. Postema wrote the paper I am discussing before the publication of
Scott J. Shapiro, Legality 121-23 (2011), which also understands law in terms of Bratman's
linkage of intentions and plans, although Shapiro does not emphasize law's temporality.
27 Postema, Melody, supra note 24, at 223.
28 Id.
29 Id. at 221.
conceptual contents ... that in turn constrain the process going for
ward."37
This pragmatist and Hegelian view of linguistic meaning is by no
means uncontroversial. It offers itself as a rival to mainstream theories
holding that the meaning of a sentence is given by the conditions under
which it is true. Brandom and Quine argue that the mainstream theories
err by modeling natural language on formal languages.38 In the latter,
symbols are assigned meaning in advance of their use in theory building
and belief formation, and only by stipulating concepts in advance are we
able to state truth conditions. In natural language, by contrast, we fix
meaning in medias res by using concepts in making claims and drawing
inferences.39 Language and belief arise together with no in-principle de
marcation between change in language and change in belief, and they
evolve together in a process that—as Postema argues—is essentially his
torical and time-minded. Contestable as this theory of meaning may be, I
agree with it, and I believe it is implicit in Postema's arguments and
conclusions.
Synechism
37 Id. at 85.
38 Id. at 83.
39 Id.
40 Postema, Jurisprudence, supra note 1, at 893.
41 2 C.S. Peirce, Immortality in the Light of Synechism, in The Essential Peirce: Selected
Philosophical Writings 1893-1913, at 1, 1 (Nathan Houser et al. eds., 1998) [hereinafter
Peirce, Immortality], Peirce did not restrict synechism to a single domain: "Surely, no reader
will suppose that this principle is intended to apply only to some phenomena and not to oth
ers,—only, for instance, to the little province of matter and not to the rest of the great empire
of ideas." Id. at 2.
42 See generally 1 C.S. Peirce, The Law of Mind, in The Essential Peirce: Selected Philo
sophical Writings 1867-1893, at 312, 312 (Nathan Houser & Christian Kloesel eds., 1992)
[hereinafter Peirce, The Law of Mind] (developing an approach to philosophy and psycholo
gy based on continuity).
The intention-plan need not be (and typically should not be) rigidly
fixed. Present circumstances may force her to adjust, or even abandon,
the plan.... It may also force adjustment if past actions were ill
considered or ineptly executed and so may fail to fit with the agent's
original sense of her plan.... When it comes to intentional action, we
might say, continuity with the past is not a duty, but it is a necessity.56
Conclusion