Monday, November 6, 2006
Posted by Jeff Lipshaw
In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.
No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.
Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.
To borrow Larry Solum's technique and phrase: Highly recommended! I want to focus here on the thesis that academic law's prescriptivism, despite inter-disciplinary encroachment, still results in "the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals." Here is another passage from the article:
A few years ago, one of us (Balkin) had a conversation with Austin Sarat [right], a key figure in the Law and Society movement and, along with Balkin, one of the founders of the Association for the Study of Law, Culture, and the Humanities. Given Balkin's undoubted interest in the study of law as a cultural phenomenon, Sarat asked, why didn't he join Sarat and found a Ph.D. program in law that would escape the constricted agendas that professional schools of law generally impose? Balkin gave his answer in a single word: "Xeroxing," by which he meant that because he worked at a richly endowed professional school, he got all his xeroxing for free, while Sarat still had to purchase copy cards. The tax professor down the hall, Balkin explained, subsidized his scholarship on law and post-structuralism. A law department that cut itself off from the goal of professional education would soon find itself as well financially as the average art history or music department, which is to say, it would not be very well supported at all.
I have some recent personal experience in precisely the "cashing out" Balkin and Levinson describe, and, ironically, in connection with a forthcoming piece in Law, Culture, and the Humanities, edited by Austin Sarat. The article explores, jurisprudentially and philosophically, the duties of a promisee in hypotheticals where the promisee has a indisputable legal right to the benefits of the contract, but, arguably, ought to have a moral obligation not to accept those benefits. I was describing the thesis to another law professor, who wanted very much to understand what policy proposal I was advancing to judges faced with this situation. My response was that I was not really advancing a policy proposal to judges at all; indeed, the core of the hypothetical is that, more likely than not, the judge's own morality or sense of justice will be trumped by the explicit terms of the contract. Instead, I intended it to be precisely what it was: an attempt by a lawyer to break out of the usual way lawyers look at a problem, and to explore the wholly inconsequential and unpragmatic difference between legal rules and the mystery of moral judgment.
But the urge to the consequential dies hard. Even I find myself justifying the usefulness of the piece by appealing to a need (or desire) to expose business lawyers to normative models other than those proposed by Langdell, or Posner, or Kaplow and Shavell, or Simon, or Williamson. I say, in justification of the way I have chosen to cash out the argument, the issue to me is not the destination, but the struggle in which I believe we ought to be engaged along the way.