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THE INNER EXPERIENCE of LAW: a JURISPRUDENCE of SUBJECTIVITY by David J Journal of Contemporary Health Law & Policy (1985-2015) Volume 4 Issue 1 Article 22 1988 THE INNER EXPERIENCE OF LAW: A JURISPRUDENCE OF SUBJECTIVITY by David J. K. Granfield, .S.B.*O Washington, D.C.: The Catholic University Press (1988). William J. Wagner Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation William J. Wagner, THE INNER EXPERIENCE OF LAW: A JURISPRUDENCE OF SUBJECTIVITY by David J. K. Granfield, .S.B.*O Washington, D.C.: The Catholic University Press (1988)., 4 J. Contemp. Health L. & Pol'y 479 (1988). Available at: https://scholarship.law.edu/jchlp/vol4/iss1/22 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. BOOK REVIEWS THE INNER EXPERIENCE OF LAW: A JURISPRUDENCE OF SUBJECTIVITY by David J. K. Granfield, O.S.B.* Washington, D.C.: The Catholic University Press (1988). Reviewed by William J. Wagner** On first perusal, some may suppose that the title of this magnificent new volume of jurisprudence contains a contradiction in terms. Most litigants, lawyers, and judges will acknowledge that American legal culture ordinarily does not consider the law a reality subject to "inner" experience. They know that when the legal culture refers to jurisprudence at all, it does not, as a rule, employ a framework that remotely can be termed "subjectivity." The title of this new work frames the question of law and jurisprudence in these terms. Even a casual reading of this work allows the conclusion, however, that the author contradicts not himself, but only the notion that received atti- tudes and ideas in contemporary American legal culture are adequate. David Granfield's work, THE INNER EXPERIENCE OF LAW: A JURISPRU- DENCE OF SUBJECTIVITY, challenges readers to reconsider their conception of law, and it delivers an impressive jurisprudential framework to assist them in doing so. Granfield's book belongs in every serious collection of American jurisprudence. Its contribution to the method and theory of law is of signifi- cant value for overcoming weaknesses in contemporary jurisprudence, and in the experience of law in American society. The purpose of this review will be to introduce the reader to the content of Granfield's jurisprudence and briefly to explore its implications for legal thought and practice. THE INNER EXPERIENCE OF LAW: A JURISPRU- DENCE OF SUBJECTIVITY is a unified work, but it makes contributions on four separate levels. These are as follows. The book offers a methodology which promises a renewed unitary foundation for jurisprudential debate among rival theories. It propounds a contemporary natural law theory of Professor of Law, Columbus School of Law, The Catholic University of America. ** Assistant Professor of Law, Columbus School of Law, The Catholic University of America. 480 Journal of Contemporary Health Law and Policy [Vol. 4:479 jurisprudence. It synthesizes a masterful historical overview of Western ju- risprudential thought from the pre-socratics to the contemporary theories of Robert Nozick and John Rawls. And, it proposes what can be termed a kind of "spirituality" of law, as a medicine for the existential alienation of those experiencing law in contemporary society. This review will analyze the nature and significance of all four of Granfield's contributions. As a prelude to such analysis, it is helpful to begin by considering more fully the ordinary American experience of law which appears to exclude the "innerness" and "subjectivity" that are found in the book's title, and are, as it will be seen, essential to its concept of law. Granfield makes the same contrast. He observes that the American legal culture often embodies a focal definition of law that is based on the individual's experience of legal coer- cion, as an object fundamentally extrinsic to the world of personal meaning. Contemporary American jurisprudence usually understands itself, either as guarantee that the event of legal coercion is predictable or economically effi- cient,' or as occasion for critically unmasking extrinsic interests which that event furthers.2 In each case, the meaning of law is measured by extrinsic uses of power, and tends to be discontinuous with personal moral experience. Recent American literature is replete with illustrations of the way persons experience law from this extrinsicist understanding. An excellent example is Sherman McCoy, the beleaguered protagonist of Tom Wolfe's telling new novel about contemporary American society, THE BONFIRE OF THE VANI- TIES. The protagonist is an irresponsible New York bond trader, who has a view from the top of the pyramid of status and material possessions. The character contemplates the prospect of an indictment consequent to a hit- and-run accident, as being an essentially absurd assault on his subjective world and personality. It is interesting to ask how, if at all, his perspective differs from that of Holmes' "bad man."4 In many respects, Wolfe depicts a prototypical contemporary American experience of law. In Wolfe's novel, the protagonist's attitude towards law causes him con- 1. Positivism and law and economics, respectively. 2. Legal realism and critical legal studies. 3. T. WOLFE, THE BONFIRE OF THE VANITIES (1987). This novel also explores the experience of law from the lawyer's perspective. It raises a number of interesting issues in legal ethics. 4. Holmes remarked that: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to pre- dict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. Holmes, The Path of Law, 10 HARV. L. REV. 457, 459 (1897). 19881 Book Reviews siderable subjective suffering and loss. He, of course, is on the receiving end of legal process and sanction. To learn that many lawyers, who are on the delivery end of legal process in our society, also suffer from a sense of mean- inglessness and absurdity, one need only talk to representative law students, law firm associates, and even more established lawyers. This existential ex- perience of law as absurd, whether from the perspective of "consumer" or "producer" of law or legal services, provides a starting point for Granfield's development of his jurisprudence, within the present book. By reference to Kafka's novel The Trial,5 Granfield describes what may be the defendant's perspective on the judicial process. From this vantage, the judicial process-as in the case of Sherman McCoy-is experienced as a nightmare offering no apparent possibility of meaningful resolution. With penetrating insight, Granfield pictures what absurdity looks like from the other side of the judge's bench. He turns to the thought of Justice Oliver Wendell Holmes, Jr., probably the leading progenitor of contemporary American jurisprudential theory and judicial philosophy.6 Granfield shows that nihilism underlies the Holmesian penchant for generalization. Gran- field considers Holmes' nihilism a participation in the same meaninglessness that Kafka's character experiences as a nightmare of entrapment. Granfield seeks a jurisprudential basis for understanding and for trans- forming the contemporary experience of law. In this quest, he for the most part sets aside recent American jurisprudential schools as points of depar- ture. Positivist heirs of Holmes, like Roscoe Pound, block the way out of the situation, by adopting a notion of law as "social engineering" and by manipulating people as though they were objects. Other positivists, like Kel- sen and Hart, arbitrarily deny hermeneutical questions about meaning, and, in that way, also close the door to solving the problem. The legal realists, including the recent critical legal studies movement, can also be said to descend from Holmes and are the major alternative to positiv- ism on the contemporary scene. According to Granfield, this second per- spective is stronger than that of positivism, to the degree that it acknowledges the existence of a problem. But, its efforts at a solution are derailed by ideological reductionism and the lack of adequate theory. 5. F. KAFKA, THE TRIAL (First Engl. Trans. 1937). Granfield relates that Kafka, who lived from 1883 - 1924, earned a doctor of laws degree and practiced law in Prague, before going into the insurance business. He was, therefore, personally well acquainted with the char- acter of law, and his work is an apt choice for illustrating Granfield's point. 6. Granfield develops his view of Holmes by reference both to his formal scholarly writ- ing and to his personal correspondence and other communications. Granfield's has an interest in Holmes primarily as an example of the existential quest for meaning which has been thwarted by absurdity, rather than as a theorist. The nature of this interest makes the personal material, including citations from a 90th birthday radio talk in 1931, particularly relevant. 482 Journalof Contemporary Health Law and Policy [Vol. 4:479 Granfield does not believe that the revival of comprehensive philosophical theories of justice, by thinkers like Nozick and Rawls, succeeds any more than have the jurisprudential schools. Nozick's system suppresses the com- munal dimension of humanity and conceals the person behind a conceptual- ization; Rawls' subordinates the ideal of personal insight to a quest for institutional justifications. Granfield's response to the impasse of the present situation is an original jurisprudence resting on the central insight that, whatever else may be the case with law, the law's appropriation, as subjectively meaningful, is a fun- damental imperative. This recognition resonates with the deeper longings of every attorney starting practice.
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