Do We Make Progress in Legal Knowledge?

Mark Tushnet

Another in my occasional posts on legal scholarship, a bit less grumpy than the immediately prior one.

So far my main project during retirement, aside from Marie-Kondoizing our house, is trying to read the hundreds of unread books I’ve accumulated over the years. (Why accumulate them, you ask? Don’t.) My strategy has been to alternate reading a law-related book and a non-law book. Last week that produced a package consisting of a collection of essays on “Child, Family, and State” published around 2003 and a collection of articles taken from the Scientific American by winners of Nobel Prizes, published in 1990 with most of the articles written in the 1970s and 1980s.

I thought there was a striking difference between the collections. Both were dated, of course, but I had a strong sense that many of articles from the Scientific American foreshadowed later developments whereas most of the essays on family law and policy didn’t. I began to wonder whether the difference was that we could easily see progress in scientific knowledge whereas the possibility of progress in legal knowledge was more questionable.

Most of the essays in the legal collection didn’t – it seemed to me – contribute to progress in legal knowledge. They made arguments that were familiar then and that haven’t changed significantly since. I was struck, though, by one feature: Most of the essays assumed that there was something we could call “the family” that had a reasonably stable character over some period (even though the essays of course discussed what were then called gay families, blended families, and families with a single parent). I don’t think they would be written the same way today; they’d acknowledge that the thing we call “family” is much more fluid in the short term than the essays from 2003 assumed.

And that led me to think that we actually did know more about the legal domain than we used to. Here are three candidates (with the one that I think is clearest first and the most questionable last).

(1) Post-modernist thought in a modest form has taught us that claims about rights have to be highly contextualized – or, put another way, that claims about “universal human rights” are more problematic than we thought a few decades ago. So, we understand such claims differently – and better – now. They can be motivationally important without claiming foundational status for themselves, for example. And, sometimes we can explain why a legal system would formulate a rights-based doctrine in (nearly) universal terms, not because those terms reflect first-order moral/political/legal values but because the institutions for implementing rights work better if their doctrinal tools are, in an older terminology, absolutes.

(2) Relatedly, I personally am reasonably confident that we know today that some version of a “social fact” account of law is better than purely normative accounts of a sort associated, for the last generation, with Ronald Dworkin.

(3) Originalist legal theorists claim that “original public meaning” originalism is better than “founders’ intentions” originalism of a sort articulated when originalism emerged as a “theory” of interpretation. And it does seem to me correct to assert that some of the arguments made against “founders’ intentions” originalism (made by, among others, me) aren’t as cogent against OPM originalism. So, in that sense, perhaps there’s been progress in legal knowledge. My misgivings here are that, as far as I’m concerned, what we’re dealing with are claims about progress in theology, and I simply don’t know what are the criteria for determining when such progress has occurred. Particularly because of the persistence of “founders’ intentions” originalism is public discourse, I’m inclined to think that what we’re seeing is the hiving off of various sub-denominations with what was once a single originalist church. (I’ve been struck by the not uncommon locution, “As an originalist, I believe …,” which strikes me as sounding a lot like, “As a High Church Episcopalian, I believe …”)

A concluding thought: The invocation of theology suggests that maybe we’ve learned that a great deal of legal scholarship consists of an edifying discourse presented in a specific disciplinary tradition that requires edification to be concealed behind more overt normative or policy claims. (In a crude older version this might have been presented as the “mental muscles” defense of classic socratic-style teaching, now completely out of vogue.) I’m not sure that old folks like me can pull off the edifying style (we might be too jaded and we almost certainly don’t know what form edifying discourse should take for students who are in their mid-twenties to early thirties). And, finally, while we might know better today than we did a generation ago that a great deal of legal scholarship is edifying discourse, I don’t know that we’ve made progress in actually producing edifying discourse (and indeed we might have regressed).