Tuesday, October 13, 2015

Why So Long?

My paper, “The Misguided Search for the Nature of Law” is long. Les Green complained it was difficult to “slog through” it, and apparently lost his bearings in it. Only in the final three pages the mist somewhat cleared and he saw something he could respond to. Perhaps Green thought that in those pages I was summarizing what came before. I wasn’t. That may be a quirk of mine, but I often prefer to end papers with a suggestion on where one should go forward instead of simply giving a shorter version of what was said before. The actual arguments are not there.

But why so long? Against the familiar practice among legal philosophers, the paper included many footnotes, and even many quotations. This was intentional. It is a common accusation among analytic legal philosophers to blame others of misrepresenting their views. (Hey, I just did that too!) It is also not unheard of to find one legal theorist attributing views to another without bothering to cite or quote them, in the process getting their views wrong. The worst victims (no, not culprits!) of these practices are Lon Fuller and Ronald Dworkin.

Quotes do not eliminate the possibility of misrepresentation; one can quote out of context, but they somewhat minimize the risk. I, of course, hope I did not misrepresent anyone’s views, and my use of extensive quotes was there for precisely that purpose.

But there is another thing. Joseph Raz once criticized “one of the unattractive tendencies of contemporary legal and political philosophy, namely…not discuss[ing] anyone’s view, but a family of views. This allows one to construct one’s target by selecting features from a variety of authors so that the combined picture is in fact no one's view, and all those cited as adhering to it would disagree with it.”

Fair point. The only way I know to avoid it is to discuss at length and in detail the views of those I criticize. And in fact, as I tried to show, there are at least two very different, and as far as I can see, inconsistent, practices under the banner of “general” or “analytic” jurisprudence. Better to be long and accurate, than concocting a hybrid target (“conceptual jurisprudence”) that all could then dismiss as not reflecting their views.

More on this soon.

No comments:

Post a Comment