Taking Experience Seriously: A Comment on Professor Zipursky’s Benjamin Cardozo and American Natural Law Theory

Abstract

Commenting on a paper with which one profoundly agrees presents something of a dilemma. If intellectual progress requires anything like the adversarial method, then one feels a certain pressure to criticize. Yet scholarly scruples demand something more than devil’s advocacy. That is the dilemma I face in commenting on Benjamin Zipursky’s essay, “Benjamin Cardozo and American Natural Law Theory.”1 I am in deep sympathy with the essay’s core claim that a tradition of legal thought links Benjamin Cardozo to Lon Fuller and Ronald Dworkin. Indeed, I recently restructured my Jurisprudence class around that tradition. My solution to the dilemma is to grasp ahold of both of its horns by offering a little criticism and then (I hope) some constructive engagement. I first draw a couple of distinctions that I think are important but which Professor Zipursky’s essay glosses over. I then suggest a way of developing further what I have characterized as the essay’s core claim. My suggestion is that the tradition to which Professor Zipursky has drawn our attention is older, broader, and more diverse than one might conclude after reading his essay. If that’s true, it does not undermine, or even diminish, Professor Zipursky’s core claim; to the contrary, it underscores the importance of Cardozo and of Zipursky’s account of his place in American legal thought.