On continental philosophy in american jurisprudence

In Francis J. Mootz & William S. Boyd (eds.), On Philosophy in American Law. Cambridge University Press. pp. 130 (2009)
This paper was written for a forthcoming Cambridge University Press anthology titled "On Philosophy in American Law" that commemorates the 75th anniversary of Karl Llewellyn's essay of the same name. Karl Llewellyn was a founder of the Legal Realist movement in American jurisprudence, and his essay is most obviously read as a brief for that movement, in which he argues that a Realist focus on underlying social needs better explains the course of American legal history than do the competing natural law, positivist and formalist schools. Without contesting the merits of this conventional reading, I argue that Llewellyn's essay also makes an implicit case for another, quite different point: the need for Continental philosophical approaches to law in contemporary American jurisprudence. In particular, I argue that the conception of philosophy upon which Llewellyn relies is, with one exception, deeply Hegelian. The one exception lies in Llewellyn's residual belief that, at least to a limited extent, philosophy can change the world as well interpret it. This belief places him squarely in the camp of post-Hegelian thinkers, the camp that also includes contemporary Continental political and legal philosophers. I conclude by suggesting how the post-Hegelian tradition responds to some of the deepest conundrums of contemporary American jurisprudence, using the problem of affirmative action as an example.
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