Scalia reviews Smith

The latest First Things includes a review by Justice Scalia of Prof. Steve Smith's latest book, "Law's Quandary."  We've already agreed here at MOJ that Quandary is great.  And, in fact, there is a must-attend conference tomorrow, at Catholic University's Columbus School of Law, dedicated the book, featuring MOJ-er Patrick Brennan, Joseph Vining, Justice Scalia, Lloyd Weinreb, and Prof. Smith.

Here is Justice Scalia's opening line:

Steven Smith takes us on a lively, thought-provoking romp through the philosophy of law. Like most romps, it has no destination, but the experience is worth it.

Classic.  He continues, after summarizing Smith's set-up:

Law’s quandary, then, is that we believe like legal realists but act as though there were indeed some omnipresent, overarching law. Smith proceeds to discuss why the broad variety of twentieth-century jurisprudential movements—sociological jurisprudence, legal realism, legal process, law and policy (including law and economics), law and society, law and philosophy, critical legal studies, law and literature, feminist jurisprudence, critical race theory, legal pragmatism and, oh yes, textualism—try but fail to resolve this quandary, try but fail to explain “how the law makes sense without ‘the law.’”

After fleshing out some of his disagreements with Smith, Justice Scalia concludes:

His book describes what he believes to be the quandary but does not resolve it, examining and rejecting various solutions—except, of course, the classical one, which is out of bounds because it violates the “norm prescribing that religious beliefs are inadmissible in academic explanations.” The book’s last paragraph acknowledges that “perplexity is not a resting place” but concludes that “we would perhaps be wise to confess our confusion and to acknowledge that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of.”

Hmmm. Richer realities and greater powers than our modern philosophies have dreamed of. Could there be a subversive subtext here? Why does Smith bring in at the outset of his book a third ontological category—religion—which he immediately disclaims, not because it is wrong, necessarily, but because it violates academic ground-rules? And why does his book repeatedly point out how the “classical school”—premised, alas, upon religion—was coherent where modern jurisprudence is not? And why does his penultimate chapter describe at length (though with the academically correct acknowledgment that it is “foreign to prevailing ontological assumptions”) the work of Joseph Vining, which speaks of a hypothetical author who “would need in some sense to be actually present,” and “to display qualities of caring, and of mindfulness”? Lawyers, Vining says, either “must believe what they do with legislation is often foolish and deceptive; or they do believe and confess a belief in an informing spirit in the legislated words that is beyond individual legislators.” Holy cow! Could it be that . . . ?

Read the review.  Read the book.  Go to the conference.  And, tell me about it.