by James R. Hackney, Jr. Durham, NC : Duke University Press, 2007. 264pp. Cloth. $79.95. ISBN: 9780822339816. Paper. $22.95. ISBN: 9780822339984.

Reviewed by Clifford Angel Bates, Jr. American Studies Center, Institute of the Americas and Europe, Uniwersytet Warszawski. c.a.bates [at] uw.edu.pl.


If one would sum this book up in a sentence it would be, this book is Thomas Kuhn’s STRUCTURE OF SCIENTIFIC REVOLUTIONS tackling the history of American legal theory. I argue that James R. Hackney offers a first and foremost a work of intellectual history on the origins and development of American legal-economic theory in the context of the impact of the post-modernist historicist critique of scientific objectivity on legal thinking. As such, this book would appeal more to intellectual historians and students of the philosophy of social sciences than to lawyers or those generally interested in legal theory.

One of the major weaknesses of Hackney’s book is that he takes for granted that everyone will agree about the history of sciences in light of applying the historicist genealogy to the history of scientific reasoning simply, as well as to the application of scientific reasoning to the law. In fact, Hackney has to spend a lot of time flushing out the development of the history of scientific reasoning as expressed genealogically and then trying to show how later developments in legal reasoning followed along similar paths. He also tries to make the argument that the whole law and economic movement is to be seen as one last hurrah to achieve a level of scientific objectivity within the realm of legal knowledge that cannot be achieved given the problematic character of all attempts of scientific objectivity, as revealed by the early 20th century trends in the philosophy of science. Again this makes for tough reading.

Another weakness of Hackney’s book is that he interjects unnecessary judgments that all too often do not bear up to closer scrutiny or would require greater flushing out and better evidence than he provides. Hackney also in too many places makes sweeping claims about the connection of certain concepts to specific understanding of nature and man that are highly problematic at best, if not outright nonsense at the worst. One of the most outrageous of such interjections is his discussion of Blackstone and the view that Blackstone’s whole understanding of property rests upon ‘divine interpretation’ (cf, pp.24-25). Hackney pulls one quote of Blackstone which is clearly connecting how nature and the interaction of the parts of nature suggest a level of harmonization that support a conclusion of divine intervention or providence working behind the scene. To then use this one quote as proof that Blackstone’s legal theory wholly rests on creationist assumptions, that we smart educated people all know to be laughable and merely a product of [*986] ignorance [by the way I am being sarcastic here], would probably mean that Locke (by whom Blackstone and his whole understanding of rights and the way law responds to rights is influenced) and Locke’s thought would be likewise caricatured. What results here is not a serious confrontation with Blackstone, but a superficial characterization that is not only misleading, it is also makes no real attempt to understand Blackstone (or the other sources of law Hackney addresses this book) on their own terms so one could see how they do in fact shape the framework of law.

This leads me to my major problem with Hackney’s book. Although he says we need to apply a genealogical and historicist hermeneutic to better understand the limits of scientific rationality on legal theory’s ability to arm the study of law with a level of scientific objectivity that is not possible, his use of the same hermeneutic is so lamely employed on the various thinkers he considers to be critical to the development of legal theory. Again his treatment of Blackstone screams out for our attention. Here he takes no consideration of any rhetorical design or context of the quote he uses to prove his point. Out of the best tradition of text proofing of biblical literalists, no attention is at all paid to the general context or the logographic context of the pulled quote that is used to prove Blackstone’s biblical worldview. Strangely, Hackney argues that we need to apply genealogical and historicist methods to understand why the claims of objectivity made by proponents of law and economics are problematic, but then utterly fails to properly use those same methods in reading the various key thinkers he uses to support his general argument, instead simply relying on generalized and sweeping claims about those thinkers, pulling a quote or two from them without any care as to how those quotes are used or to be understood within the general framework of the given text (key to the very hermeneutic approach he espouses). This leaves the reader scratching his head to understand where the author is going.

In fact, the reader is likely to scratch his head and cry foul at too many sections. There are two ways one can understand what is going on in this book. Perhaps Hackney’s book is a big prank by a critic of post-modern approach to scientific reasoning akin to Alan Sokal’s spoofing of SOCIAL TEXT (a likewise Duke University Press publication) by getting them to publish his parody of post-modern approaches to physics. Alternatively, this is a piece of scholarship plagued by contradictions and errors in application of the scholarly approaches that Hackney promotes. As a spoof this is priceless; as a piece of serious scholarship, the best that can be said is that it should have been sent back for major revisions.

Kuhn, Thomas S. 1962. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. Chicago: University of Chicago Press.

Sokal, Alan D. 1996. “Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity.” 46/47 SOCIAL TEXT 217-252.

© Copyright 2008 by the author, Clifford Angel Bates, Jr.


Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity