Law’s Quandary

Ordinary people assume that legal terms like freedom of speech have some real or true meaning. Most important legal theorists say there is no such thing. It is not unheard of for the sophisticated classes to reach conclusions at odds with common sense. But this creates a real problem for the stability of our legal system. Smith explores this quandary in a way that is wonderfully clear, honest, and funny. This is the best book I have read in several years. -- John H. Garvey, Dean, Boston College Law School, and author of What Are Freedoms For? Smith's treatment of the issues he addresses is outstanding. His discussion is consistently probing, thoughtful, and imaginative. Smith's range of reference is impressively broad--yet I never had the sense that he was trying to impress. His clarity--aided by his wonderfully engaging, and occasionally humorous, conversational style--is exemplary. But the enviable clarity/accessibility of Smith's writing should not obscure just how penetrating--I am tempted to say, brilliant--his commentary is. It may sound faintly ridiculous to say this, but I thought that this book was a jurisprudential page turner. -- Michael J. Perry, Emory University School of Law, and author of Under God? Religious Faith and Liberal Democracy

Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were articulated by thinkers from Aquinas to Coke to Blackstone to Story. But these commitments are out of sync with the world view that now prevails in academic and professional thinking. So our law-talk degenerates into “just words.”

This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense.

The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.