The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities

If law as an activity emerged naively and unpremeditated, as a direction of attention pursued without premonition of what it would lead to, then by now it has hollowed out a character for itself, as Oakeshott says, and has become specified in a practice. Having acquired this firmness of character, as Oakeshott further says, law may present itself as a puzzle, thus provoking reflection. Thinking about law in this manner or mood is something that I wish to call philosophy of law, and this is itself an honorable activity with a character and mannerisms of its own.2 In law school, we most often call this mode of reflection on law jurisprudence. It is under the guise of this label that lawyers and philosophers pursue the task described by Oakeshott, where we not only wish to acquire and exercise the skill that constitutes the activity but also wish to discern the logic of its relation to other activities and to ascertain its place on the map of human activity. Recently a number of people, reflecting on the place of law within the map of human activities, have given us ways to understand law that are different from those in which law has been approached and characterized and placed by traditional jurisprudence. From these people I have learned to think of law as a particular kind of activity, that of a craft or an art. In the following, I first sketch (in sections I-III) this alternative way to think about law, and then consider (in sections IV-VIII) some of the differences between this alternativevision of law and traditional jurisprudence in so far as they both relate or connect us to law