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Is legal theory a comedy?  Is it true, as Sandy Levinson has observed, that legal theory's raison d'etre is commonly thought to be the never-ending supply of "happy endings to legal dilemmas" and the solution of people's problems -- tidily and without disruptive remainder whenever possible?  Is legal theory intrinsically "progressive" in the literalist and non-(overtly)-ideological sense that it ought invariably to be concerned with some conception of "progress" -- improvements, resolutions, innovations, rethinkings (blessed neologism), bigger and better policies for happier and more fulfilled times, smarter and more effective and ever-suffused with the odor of doggedly optimistic cheerfulness and the certitude that it is doing the world a great favor?  Must this be legal theory's orientation or, perhaps better, its objective, and is it even coherent to speak about tragic legal theory, let alone a legal theory of pessimism?

Jack Balkin has written that the Constitution may well be a "tragic document" and that the explanation for the nearly universal attraction of comic theory may be its psychologically assuaging properties.  For Professor Balkin, in his essay, Thirteen Ways of Looking at Dred Scott, the question of the tragic quality of the Constitution quickly becomes one about the prospect of the possible inevitability of our "collaboration with evil."  

But there may be less dire questions to ask.  One of these might be whether legal theory is valuable independent of the practical ends that it may or may not achieve -- that is, does legal theory have intrinsic value?  Does it have value if it does not solve the world's problems, if it does not innovate and improve, or even if it does not aspire to do so?  What if one's legal theory doesn't help one make better judgments, what if it aims merely to offer an explanation -- just an explanation, and certainly not the only one, to say nothing of the best one -- for why something might be the way that it is?  If one's legal theory cannot solve a problem in the way that the problem of the number nine can be gratifyingly resolved into three equal sets of three, is that simply an indication that the theory requires "rethinking"?

In law and religion clause scholarship, an area of interest to me, where the structural tensions inherent in the religion clauses only contribute to the considerable difficulties that any attempt to theorize about them confronts, legal theory has displayed a noticeable propensity for comedy.  The idea seems to that the more difficult it is to theorize, the more possible it must (must!) be -- if only the right balance is struck, if only we were smarter, fairer, and more clever in our responses, more attuned to the protean pressures of pluralism and other social phenomena, if only we were more reasonable, and our thinking less clouded, all of our theoretical aspirations could be sated.  We could stop wishing, wistfully, with Apollo, that Daphne's hair were neatly arranged -- because she finally, after so much resistance, had acceded to our ministrations.

I am sounding themes now from the work of Steven Smith.  But while it seems to me that Professor Smith announces a kind of curtain call for comic legal theory, I wonder whether he is still a part of the play.  Like the clown Canio at the end of Leoncavallo's Pagliacci ("The Clowns"), who exits the stage (littered, at that point, with bodies) with the line, "La Commedia e' finita," the skeptical view of scholars like Professor Smith seemingly aims to augur the end of legal theory as a necessarily comic enterprise.  But need legal theory be comic?  Even if skeptics like Professor Smith are right, perhaps legal theory has other paths to tread.

Footnote: Any other real or imagined association between legal theorists and clowns is hereby disclaimed. 

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