The Character of Legal Theory

Hanoch Dagan & Roy Kreitner

Posted in , , , , , , , , , , , , , , , , , ,

Is legal theory worth talking about? Worth studying? Does it make sense to imagine legal theory as a distinctive academic endeavor? Or does legal theory always collapse, either into a different academic discipline on the one hand, or into a variety of professional discourse on the other? We believe that legal theory is an enterprise robust enough to justify separate naming. But, this essay is not simply an exercise in describing the world of legal academia. In addition to our descriptive mapping of the field, we intend to offer a tentative account of the implications of the answers to these questions, which, in turn, reflect back on our motivations for considering legal theory in the first place.

These questions about legal theory are not new. At least since the advent of legal realism nearly a century ago, legal scholars have grappled ambivalently with the idea of legal science as an autonomous academic discipline. Of course, not all legal scholars address these questions, and almost nobody addresses only these questions. There is a great deal of normal science in the legal academy, and most of the production of legal scholars is not especially reflexive in nature. But, when they have reflected on what legal theory might mean, scholars have often minimized its potential in two ways: some have abandoned the notion of a legal theory and opted to borrow a theoretical discipline from the social sciences or from the humanities. Others have discarded the idea of legal theory by highlighting the practical wisdom of lawyers and celebrating law as a craft.

We believe that these views of legal theory miss the distinctiveness of much of the work conducted in the legal academy, and our task here will be to underline that distinction, as well as eventually to say why it matters. To that end, we begin by mapping four discourses about law, one of which is legal theory. We then elaborate briefly on legal theory itself and on its relationship to the other three discourses about law. We conclude by considering the implications of this map for legal theorists and for legal education.

Our four discourses about law are law and policy; socio-historical studies of law; law as craft; and legal theory. Law and policy work begins with the insight that law is instrumental and seeks to achieve social ends. Studies in this vein take the methodology of another discipline (most prominently economics, criminology, or psychology) and apply it to a social problem and a related set of legal rules in order to explain legal doctrine or to call for its reform. Scholars often conduct law and policy work with no explicit reference to the concept of law or to the possible constraints of law’s constitutive characteristics, leading some proponents to suggest that law schools could be structured as “a set of miniature graduate departments in the various disciplines,” and that developing “extensive knowledge of legal doctrine and legal argument” might be quite useless.1

Socio-historical studies deploy a range of methodologies—history, sociology, literary criticism, and cultural studies, among others—to analyze the subject matter of law. In contrast to law and policy, socio-historical studies draw a sharp distinction between their own academic discourse, including its language, method, audience, and goals, and the instrumental orientation they associate with practical legal discourse. Socio-historical studies also generally eschew any normative or reformist impulse, thus bracketing the typical perspective of much legal scholarship that concentrates on solving concrete social problems through law.

The discourse we identify as law as craft draws on Aristotle as inspiration in focusing on the special brand of practical wisdom and knowhow that the law’s professional norms generate. Law-as-craft scholarship highlights the structure of adjudication as the epitome of virtuous legal dispositions and as the core of law’s legitimacy. Elements of adjudication, including the requirement of judicial independence, the concept of non-discretionary jurisdiction, the obligation to listen to all affected parties, the tradition of the signed opinion, and the neutral principles requirement, all serve as examples of a professional ethos that develops lawyers skilled at the “necessary but difficult task of forming judgment without single-phased expertness, but in terms of the Whole, seen whole.”2

Legal theory draws on these three discourses about law and focuses on the work of society’s coercive normative institutions. It studies the traditions of these institutions and the craft typifying their members, while continuously challenging their outputs. In performing the latter task, legal theory absorbs lessons from law’s neighboring disciplines. But, legal theory is more than a sophisticated synthesis of relevant insights from these neighbors, because of its pointed attention to the persistent jurisprudential questions regarding the relationship between law’s normativity, on one hand, and its coerciveness and the implications of its institutional and structural characteristics on the other hand.

Thus, in the midst of the contributions of the three other discourses about law, legal theory provides an added value. The distinct character of legal theory has two interconnected aspects: first, its attention to law as a set of coercive normative institutions; and second, its effort to engage with the lessons of the other discourses about law. In a sense, legal theory functions as a junction at which the three other discourses can be forced into a sort of mediated communication with one another, a site where one may bring three not necessarily commensurate languages into some measure of holistically oriented contact.

Legal theory comes in many flavors, with Kantian and natural law theories on one end, Marxist theories on the other, and various strands of pragmatism and legal realism in between. While the various theories have different positions regarding the relationship between law’s coerciveness and its normativity, we think that no legal theory could ignore the question of such a relationship. So, for example, Kantian legal theories (or natural law theories) take the possibility of coercion as a mandate for reason to be the sole motivator in law (i.e., for there to be law, all coercive power must be subjugated to reason); some Marxist theories, on the other hand, maintain that while law exhibits an internally consistent and reasoned framework, the entire mode of reason flows from and is dependent on (economic) power (i.e., in actuality, law’s reason serves power). Legal theorists taking their inspiration from realism deny the coherence assumed by both Kantians and Marxists, and stake out a middle ground regarding the relationship between reason and power: they are suspicious that reasons law’s carriers give might serve as window-dressing for interests and power, thus they often criticize the law’s means, ends, and consequences. By the same token, much legal theory typically avoids analyzing law only in terms of parochial interests or power politics. Legal theorists appreciate how modes of legal reasoning—substantive and technical, abstract and contextual—often constrain the choices of legal decision-makers. In legal theory, reasoning must aspire to appeal beyond the parochial, and legal theorists treat instances wherein argumentation serves as cover for interests as cases of abuse. The critical stage of legal theory often uses insights of socio-historical analyses of the law; its reconstructive stage is frequently assisted by inputs from various law and policy schools. And, in both stages, legal theorists often incorporate an institutional perspective, which considers the numerous arenas of lawmaking, law applying, law interpreting, and law developing functions.

The synthetic spirit of legal theory is not only a matter of methodological inclination. Rather, it is mandated by the mission of legal theory to shed light—either explanatory, justificatory, or reformist—on society’s coercive normative institutions. Socio-historical analyses of the law and comparative law offer contextual accounts that both help explain the sources and the evolution of the legal terrain and, at times, open up the legal imagination by revealing the contingency of the status quo. Law and policy, in turn, may illuminate concrete ramifications of current law and thus aid in assessing its normative desirability and in designing alternative legal arrangements. And, law as craft is likewise vital in providing an understanding of the institutional, structural, and discursive characteristics and limitations of law. Such understanding is crucial in order to appreciate both the meaning of current legal arrangements and the potential of alternative legal programs.

Thus conceived, legal theory combines lessons from interfacing disciplines of the social sciences and the humanities, but it cannot be reduced to any of them. By the same token, although legal theory acknowledges the significance of the internal insights of law as craft, it has no aspiration of closure or autonomy. Rather, it celebrates its embeddedness in the social sciences and the humanities.

We conclude, not with any truly conclusive statement, but rather with a reflection on three implications one might draw from our exercise in characterization. The three implications deal with the relationship between law and other academic disciplines; the institutional structure of the legal academy; and advanced legal education.

After several years of unsystematic gathering of anecdotal evidence, we believe that many people involved in the legal academy experience a certain discomfort regarding the academic status of legal scholarship. A recurring thought seems to be that there are two alternatives: adopt an external academic discipline (e.g., economics, sociology, psychology, philosophy), or relinquish academic or scientific pretensions and delve more deeply into practical professionalism. As against this somewhat untheorized (but we think, quite widespread) outlook, we are suggesting that those alternatives offer a false choice. Legal theory, distinctive in its synthetic openness and its focus on coercive institutional normativity, should be understood as an internal academic alternative. The strong version of this claim is this: legal theory has—just as other academic fields do—generated a language with which the initiated can advance more nuanced arguments than would be available to lay audiences. The language is far from impenetrable, but it does require training to gain facility with it, and it does allow for a deepening of inquiry.

The second implication touches on the structure of the law school as a community of scholarship. Law faculties are collections of people and, as such, prone to combination and division. Sometimes those divisions are generational; at times they may be thematic; often they seem to be methodological; sometimes they map onto institutional or more general politics. We are not suggesting a way to overcome such divisions— indeed, they may be valuable overall in preventing boredom (and boring scholarship). However, our discussion implies that legal theory is a place where those divisions do not simply divide, but rather become the focus of discussion. This is most pertinent regarding methodological differences: the discussion of legal theory brings the specialist part-way out of a form of isolation and forces an engagement with additional perspectives and agendas. In its strongest form, the implication would be that while people in the law school could do anything in the way of scholarship, they would also have to speak legal theory, if not with native proficiency then at least as a second language.

This brings us to the third implication of our mapping, dealing with advanced legal education. And here, we will allow ourselves to be blunt. If we are right about legal theory, then the legal academy should not rely too heavily on other disciplines to train its scholars. There is certainly room for a great many philosophers and economists on law faculties. However, relying on other fields for advanced training may mean that many people who join law faculties will have to learn the language of legal theory on the fly. To the extent that legal theory has content, as we have argued it does, then legal theory itself should be part of the tool-kit imparted to the aspiring legal academic. In other words, legal academics should have a background in legal theory, and they should study it as a field. And the way to do that, it seems to us, would be to develop and support PhD (or other research-based advanced degree) programs in law.

Our reflection on these three implications brings us back to the nature of our project, to the question of what we are doing by generalizing about legal theory. We have been trying to figure out what legal theory is and what it could be. In doing so, we are not involved in a maximization project that calls for an advanced algorithm. Rather, the project is more like an appeal to character, and thus our title has a double meaning. On the one hand, there is a descriptive project of characterizing existing legal theory (and that to come). But, on the other hand, we are trying to draw out a type of participant, a character in a particular institutional drama. If you are persuaded, then perhaps you already identify with that character. If not, we hope the character of legal theory is at least interesting enough for further engagement.

Acknowledgments:

Hanoch Dagan and Roy Kreitner are members of the Tel Aviv University Faculty of Law

This Legal Workshop Editorial is based on Mr. Dagan and Mr. Kreitner’s Article:  Hanoch Dagan & Roy Kreitner, The Character of Legal Theory, 96 CORNELL L. REV. ___ (forthcoming 2011).

Copyright © 2011 Cornell Law Review.

  1. George L. Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. LEGAL EDUC. 437, 437–39, 441 (1983).
  2. KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 310 (1962).

Post a Comment (all fields are required)

You must be logged in to post a comment.