September 10, 2009
Are all law librarians legal positivists?
Or, put another way, should all law librarians acknowledge that their job is to be legal positivists? Legal Positivism is a school of Jurisprudence which holds that the only legitimate source of laws comes from written laws specifically enacted or adopted by a government body. Legal Positivists don't try and answer what the law ought to be, but what it is. As John Austin put it, “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”
When someone comes to us as librarians and asks. "What is the law regarding the constitutionality of book burning?" we do not answer, "I find it distasteful and thus it couldn't possibly be the law." On the contrary, if we are doing what we are expected to do, we find the relevant statutes, regulations, caselaw, etc. If it is a gray area, we note it. We may then even seek out treatises and articles from scholars to illustrate the gaping whole of the matter yet unsettled.
Does this topic ever matter? Well, perhaps it may help us become more self-aware. Are we merely passive observers to the workings of the subject which surrounds us? Perhaps it can help us define our roles in the legal community. Perhaps not. All I know is that no one cares what I think about the law, but rather that I know how to find the pieces of the puzzles for them. And I'm fine with that. I may well even prefer it. (DCW)
Maybe, but not necessarily. Are law librarians organizers/managers of legal information, or do we have the keys to finding the law? I think we internalize the latter, and that's how legal research is generally taught, but it's only one perspective. To flip the question, See Barkan, 79 Law Libr. J. 617 (1987), for a CLS-based deconstruction of legal research as search for law.
Posted by: stephanie | Sep 15, 2009 9:17:29 AM
They should interpret what the law means by consulting the statutes or provisions concerned and jurispredence, if any not and not what they think the law should be.
Posted by: Legal Aid | Sep 10, 2009 6:25:37 PM
As a law librarian, whether I'm working for a firm, a university, a government agency, or some other entity, I am a scholar first and foremost. And why not think of the librarian as the "designated" public intellectual. We know the answers - but we also know the tough questions that we have to find the answers to.
"When someone comes to us as librarians and asks. 'What is the law regarding the constitutionality of book burning?' we do not answer, 'I find it distasteful and thus it couldn't possibly be the law.'"
Why not answer 'this is the as it currently stands, law - but *this* is why it should - or should not - not be the law.'
Posted by: Mikhail Koulikov | Sep 10, 2009 6:24:44 PM