I am a huge fan of both Neil Duxbury and Brian Leiter.

So my interest was piqued when I learned that Leiter saw Duxbury’s “Patterns of American Jurisprudence” as “philosophical feeble” and wrote a review essay about it.

Leiter’s critical essay is fluent and informative, and makes me want to read Duxbury’s book even more!

It seems the central difference between Leiter and Duxbury is whether you think there are objective answers to key philosophical questions in jurisprudence.

So for Leiter, the central issues of Jurisprudence are topics such as nature of law and legal authority (pp.2-3), which have occupied a central place in the writings of Austin, Kelsen, Hart, Raz, and Dworkin (p.6).

It is essentially an international subject with no clear geographical boundaries: scholars from the UK, US, Austria (Kelsen), Israel (Raz) Austrlia (Finnis) are all contributing to the same debate. Hence Leiter’s essay title: “Is There an “American” Jurisprudence?”

Duxbury obviously sees things very differently. He is interested in tracing the history of a much broader range fo theories about law and politics, including schools such as Critical Legal Theory and Feminist Legal Theory, that do not engage with these central questions directly/at all.

This is why Leiter says Duxbury’s book would have been more aptly, if not more attractively, titled, “Patterns of American Non-Philosophical Thinking About Law”.

Unlike Leiter, I do not occupy a Chair in Jurisprudence, and I have no credentials to discuss what should be “Philosophical Thinking” and what should be “Non-philosophical Thinking”.

But it seems to me that Leiter’s conception of what counts as “Philosophical Thinking” must be too narrow. No doubt some people like to reflect on questions such as the nature of law and the relationship between law and morality. I have nothing against that. But other people may want to reflect on other, equally interesting and philosophically fertile topics, e.g.

These academic works obviously count as “Philosophical Thinking” on the nature of Law, and therefore amount to jurisprudence, even if they do not engage with the central debates on the nature of law in the tradition of Austin, Kelsen, Hart, Raz, and Dworkin.

Towards the end of the essay (pp.29-31), Leiter sketches the idea of another book that may be written, using a Marxist framework to trace out what political and economic trends gave traction to theories that, for Leiter, lack “philosophical depth or sophistication in matters of legal theory” (p.5).

But maybe the truth is rather more prosaic. New students graduate from Law Schools every year. Sometimes opportunities open up for the star students to pursue further studies. Sometimes these opportunities are in a field broadly described as Jurisprudence/Legal Philosophy. Other times, star students enter into graduate studies and go into other fields of research, and then develop an interest that is broadly philosophical. Sometimes practitioners who leave practice and become judges follow the same route (e.g. Cardozo Nature of the Judicial Process)

Different ideas attract the attention of different scholars, who all have their own judgments about what is intellectually/philosophically attractive worthwhile. As professors/judges, they have the economic security, leisure, professional standing, and audience to write and make their voices heard. Each of them has a different take and their own (often overlapping) followings, which may be summarised into a few “streams” of jurisprudence or philosophical thinking.

To the extent that American writers tend to interact and engage with other American writers more deeply, and share the same audience, an “American” Jurisprudence can be said to emerge.

Be that as it may, Brian Leiter’s sketch of a book, if it ever materialises, would an exciting read. In the mean time, I will be on the look out of a copy of Duxbury’s book.