Quandary Sings

I've just finished re-reading Steve Smith's Law's Quandary, and I can echo the enthusiasm of John Garvey's quote on the book's dustjacket: this is one of the best studies in jurisprudence I've read in a long time.  (The other blurb on the jacket is by Michael Perry, and it, too, is just in its praise).  I'd say Smith has hit the real nerve of the fundamental challenge facing Catholics doing general jurisprudence today (and well as for others committing lesser included offenses).  Smith's mark is the "ontological gap," an unpaid debt of our legal practice that he earlier identified and searched, in somewhat different terms, at (among other places) 40 Boston College Law Review 1041 (1999): "Believing Like a Lawyer."  What he's about exposing is the metaphysics our quotidian legal practice implicitly affirms and depends on while mainstream legal theory denies the same (and so much more).  With the accustation of an "ontological gap" Smith fingers all the legal reality of which (according to Swift v. Tyson, for example) what the (wise) judges decide is (exactly) evidence.  Smith chases the rabbit to its hole/hat.  Which of the two is it?  Smith's own reaction to what he has done to the rabbit includes cautious but acute invocation of the work of U. of Michigan's professor Joseph Vining concerning how (we) practitioners of Anglo-American law can and do get beyond the (pseudo-)problem of the ontological gap.  I'm less confident than some that the Aristotelian-Thomistic tradition, as cast in the Suarezian and post-Suarezian terms that come down to us in the main, is the right way to go to solve the (real) contemporary problem Smith identifies, let alone that we "must" go there.  My own view is that the working out of a critical realism (a la Bernard Lonergan SJ) is necessary to reverse the ontological sting inflicted by legal realism, etc.  Many of the conclusions reached from the stance of critical realism will, I think, be the same as those reached from the more traditional starting points (Lonergan was innovative in his method but traditional in his conclusions), but the analysis may/should have a better chance of succeeding/persuading in this post-Kantian world.  These are deep waters, but I should venture that Smith and Vining are onto something, both problem and solution.