Who Are the Missing Influences in the Legal Academy?

I’m going to dabble in my first “list and question” post.  These can be fun and useful ways to learn about one another, and they also push the genre of blogging into more of a conversation than a monologue (not that I’m complaining about the opportunity for the latter).  

Here is the question:

Who are the top three thinkers that you doubt most law professors read but wish they did? 

This is a question about missing influence rather than a “favorite authors” list.  The categories probably overlap for many of us, but they are conceptually different.  As I reflected on my own answers, one of my thoughts was that my own work would be better understood if more people were familiar with the people on my list.

The wording of the question is meant to specify a desire for intellectual engagement by a broader section of the legal academy rather than simply increased name recognition.  (I have a long list of famous people whom I could name and fit superficially into a conversation but whom I’ve never taken the time to read in any depth.) 

Guidelines: (1) people outside the legal academy; (2) feel free to include a brief word about why you wish they were known; (3) have fun.

My nominations after the jump.  

1.  Sheldon Wolin.  Wolin’s writings cover a wide range of political theory and offer an antidote to the narratives of Dahl and Rawls that have been so influential to some aspects of legal scholarship.  The 2004 expanded edition of Wolin's Politics and Vision adds a number of important chapters that build upon his earlier observations about “the age of organization and the sublimation of politics.”

2.  Ludwig Wittgenstein.  Wittgenstein is well-known in some pockets of the legal academy, but my guess is that he falls into the “passing familiarity” category for a lot of people.  I think he is important to questions of interpretation and epistemology that underlie many significant legal inquiries.  But he is hard to read, and the payoff isn’t immediately evident (few people who make it through the first few pages of the Tractatus or the Philosophical Investigations will think that they have stumbled upon a page turner). 

3.  Stanley Hauerwas.  Hauerwas is a provocative theologian well-versed in philosophy and political theory.  His writing touches upon many issues important to legal scholarship including critiques of liberalism, questions of religious freedom, moral and ethical controversies, virtue ethics, and the role of violence in the state.  Outside of the legal academy, Hauerwas is often reduced to some of his many aphorisms, but these interpretations miss the depth of his thought and the power of his critiques.  

Who is on your list and why?

Comments

[Patrick S. O'Donnell]

Here's several "top three" lists:

Amartya K. Sen (economist/philosopher)
Jon Elster (social scientist extraordinaire)
Robert E. Goodin (political scientist and political philosopher)

or (three contemporary philosophers):

Nicholas Rescher
Amelie Oksenberg Rorty (yes, the 'other' Rorty)
Daniel D. Hutto

or:

Jonathan Lear (philosopher and psychoanalyst)
David Harvey (geographer and social theorist)
Thomas Pogge

or:

Ian Hacking
Simone de Beauvoir
Kristin Shrader-Frechette

Sen and Elster are read by some but not enough folks in the legal academy.

[Raha Wala]

1. Mark E. Warren (Political Science)
2. Joshua Greene (Psychology/Cognitive Science)
3. Thomas Pogge (Philosophy)

All contemporary and all making very significant contributions in their own fields that could have major implications for the law.

[Matt]

I'd add the following:

David Hume- people know of him, of course, but I don't think many read him or learn from him as much as they could. His naturalistic account of morals still has much to teach us, and in particular many in law would do well to read his "on the original contract" so that they could avoid putting forward really embarrassing "tacit consent" arguments of the sort Hume destroyed over 200 years ago. These are still all-too-common among even quite famous law professors.

Philip Kitcher- for his first-rate work on how a naturalized ethics can be thought of, and also for his excellent work on science policy, genetic engineering, evolutionary psychology, and other related issues. His work is less directly applicable to law than that of many others, but but it has a lot to offer to the right people. He's also a model of clarity and good style. (I have a paper on genetically modified crops where I try to make use of some of his ideas on science policy. It's not directed primarily at legal regulation, but I hope it's still of some use to those in the law.)

Henry Sidgwick- (primarily, but not only, the Methods of Ethics) for his sophisticated discussion of utilitarianism, one that, despite being more than 100 years old, is still vastly superior to the majority of work done in a consequentialist style these days.

I'd add a note of caution about Wittgenstein. Reading lots of his work has had a strong influence on how I see many philosophical problems, but his own worry about his influence- that he'd mostly produce people who aped his style without understanding him, seems to me to have been all too perceptive. He's really quite difficult, and I'd say very hard to apply directly to legal issues. Most attempts to directly apply him end up, at best, just aping his style and being mostly nonsense. When you hear someone in law (or even much of philosophy) talking about "language games" or "forms of life" or whatever, I'd generally recommend serious skepticism that anything useful is going to follow. That's not because I'm skeptical of what Wittgenstein has to offer, but rather because most attempts to apply his work are terrible. It's better to read it and absorb it but don't attempt to imitate or or thing there are philosophical truths to apply (another thing he cautioned against.)

[Mathew Chacko]

Marx, Greer and Adam Smith.

[Thrasymachus31]

Nietzsche, Schmitt, Benjamin.

[Jeff Lipshaw]

I will go with three Germans:

Immanuel Kant. Most everybody knows the categorical imperative (for better or worse), but the basis of knowledge in the First Critique and teleological judgment in the Third Critique are way more interesting.

Jurgen Habermas. Particularly "On the Logic of the Social Sciences", as to the historical separation of hermeneutics/narrative, on one hand, and nomological studies like economics, on the other.

Niklas Luhmann. The illusion of justice within law as an autopoietic discipline.

[Patrick S. O'Donnell]

Adam Smith is already well read among members of the legal academy, at least his more familiar An Inquiry into the Nature and Causes of the Wealth of Nations. However, its doubtful most of those same readers have also read his earlier The Theory of Moral Sentiments, which provides a counterweight of sorts to tendentious interpretations of the (here) former work.

I rather think not a few law folks read Nietzsche, Schmitt and Benjamin already, judged at least by the notes I've read over the years.

Incidentally, if you want to read what I think is a nuanced and therefore philosophically respectable use of Wittgenstein's work by a contemporary legal theorist/philosopher of law, see the body of jurisprudential writing by Dennis Patterson (Rutgers School of Law, Camden), but in particular the edited volume, Wittgenstein and Law (2004), and (especially) his Meaning, Mind and Law (2008).

And for what it's worth, several philosophers I've found helpful in coming to understand what Wittgenstein was up to (and no doubt Dennis would recommend at least the first two), include Gordon P. Baker and P.M.S. Hacker, Avrum Stroll, and Michael Luntley.

[Patrick S. O'Donnell]

Jeff,

Don't you think those in the legal academy with a taste for philosophy of law or legal theory already read Kant, Habermas and Luhmann? I'm convinced, again by the citations in the literature, that at least the latter two are read although I suppose in the case of Kant one can't always be sure folks have slogged through his work rather than relying on the secondary literature.

[Jeff Lipshaw]

Patrick, I really wonder whether anybody can read the Germans. Not one of those three is known for prose style.

[Mika VIljanen]

1. Bruno Latour. Latour is a provocative, funny, and annoying ethnographer/philosopher/sociologist of science who actually has a great book (in English) out on the French Conseil d'Etat, the local supreme administrative court. Highly unconventional and incisive.
2. Michel Foucault. The late lectures should be compulsory readings.
3. Michel Callon, John Law and other ANT people. Nothing to do with law, but it is always useful to try to ravish ossified habits of thinking.

[Patrick S. O'Donnell]

Mika,

You wish they read Foucault? Meaning: they don't at present? I strongly doubt that, as Foucault has been rather fashionable for some time now in most quarters of the social sciences, humanities (and the law). And folks who write at the intersection of law and science (and technology) typically read Latour.

[Dan Katz]

(Social Science)
Elinor Ostrom
Robert Axelrod
Thomas Schelling

(Math/Physics/CompSci)
Albert-László Barabási
Benoît Mandelbrot
John Holland

(Biology/Evolutionary Theory)
Robert Trivers
Martin Nowak
Frans de Waal

[Mika VIljanen]

Patrick,

Yes, sure. I agree that Foucault has been fashionable in some circles for some time now. Still, I wish he would be read more and even by those who do substance and not merely theory.

And for Latour, the fact that you put him in the science/technology box is indicative of the treatment he has received in gerenal. Latour is not only for the techies.

[Patrick S. O'Donnell]

Mika,

First, I don't know what is meant by the contrast between "substance" and "theory" as I take theoretical work to be pretty substantive.

And I wrote: "AT THE INTERSECTION OF LAW AND SCIENCE (AND TECHNOLOGY)," which I don't understand to be either directly or by implication a reference to the proposition that Latour is "only for the techies." (The fact that I placed technology in parentheses only reiterates the point.)