Balkinization  

Monday, October 23, 2006

Law and the Humanities: An Uneasy Relationship

JB

Sandy Levinson and I have just published a new article, Law and the Humanities: An Uneasy Relationship, in the Yale Journal of Law and the Humanities. This is a longer version of a paper we originally published for a symposium in Daedalus on the future of the humanities in the 21st century. Here is the abstract:

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.

Comments:

How does this hypothesis work for legal education in countries like Ireland and the UK where law is an undergraduate degree and if you want to practice you need to go on and take a vocational course/vocational degree (in Ireland either 3 year Solicitor's degree or 1 year Barrister-at-Law degree). In those cases law is taught as an academic subject; not as a professional subject. Does that bring it closer to the humanities there than here in America?
 

I know that some very fine law and humanities work has come out of the U.K., so I'd be very intrested in hearing from folks there about how they assess the status of humanities oriented legal scholarship vis a vis the rest of the legal academy.

My general sense, gathered from the time I spent at Cambridge about 15 years ago, is that the role of philosophy and sociology is a bit stronger and economics is a bit weaker in U.K. law faculties, but that American schools are more interdisciplinary on the whole. That may have changed, and I'd be interested in hearing what others have to say on this question, as well as comparing the analysis in the article about the U.S. legal academy to the experience in the U.K.
 

Technocracy undermines democracy. Again, the anti-intellectualism of the US population and the hyper-intellectualism (as expertise, not wisdom) of its philosophers go hand in hand.

It's amusing to me in a sad way that the debate over Dawkins' pathetic little book revolves around the existence of a god, when the issue is whether or not there is any just form of government that is not built around the interpretation of purposefully vague primary texts. Extending Dawkins' logic, the rule of science should trump the rule of laws (as texts).
Even if we could blame Bush's behavior on religion rather than a combination of spoiled privilege, teenage rebellion, alcohol, cocaine and stupidity, what about the rest of the bunch? Do you think Cheney or Karl Rove thank god on their good days?
Atheism -as knowledge- won't cure us of the human tendency to simple dumb reflex.
The criticism of this adminstration is led in this country by small-minded but competent bureaucrats. And we're supposed to be grateful.

Expertise is a function of -a facility with- the known.
The humanities begins and ends with questions: nothing is taken for granted. If law is moving more and more away from the humanities it's because our society is moving further away from a discussion of what we value and taking the productivism of the market more and more as a given. And the distanced and observational -read:passive- language of this post are more a symptom than a response.
 

A few years ago I was an editor on a respectable law review. I noticed that most of the faculty-written articles that we published were, frankly, not very good, but not because the authors were insufficiently intelligent or lacked ideas. It seemed to me that many of these authors were bored or even depressed, perhaps. A few articles were genuinely interesting and well done -- which is to say the author had an idea and argued seriously and honestly. But, a high percentage of what we published ranged from very polished and formally sophisticated hackwork to much less polished hackwork. Often, the argument in these articles was logically fallacious in obvious ways, and it was a constant battle to impose a modicum of honesty in the citations to authority. I think that even the most interesting and valuable articles we published tended to be methodologically unsophisticated to an extent that would be unusual in papers published in journals of the humanities or social sciences.

Anyway, it is hard for me to understand why the law schools in this country do not produce better scholarship. I think it has something to do with the law reviews themselves, and something to do with the fact that law faculty, for the most part, have to learn to do academic writing on the job. The constant developments in law should provide a ready source for original and interesting work, but somehow in a large portion of the scholarship it just is not working out that way. Something seems to be structurally wrong.

On the other hand, perhaps median-quality scholarship is not impressive in any academic field, and it does not matter as long as long as a few valuable articles are published at any time. So, circling back to the interdisciplinary theme, is the quality of scholarship from law faculty comparable to the quality of scholarship from faculty in the humanities and social sciences? Or, is there something ill-defined about law as a basis for scholarship, so that much of the academic writing in law is less sophisticated than in either the humanities or the social sciences?
 

"perhaps median-quality scholarship is not impressive in any academic field"

The difference is between quantitative and qualitative. A chemist with a mediocre mind can still contribute to the growth of his field. In the past it was almost enough to be a teacher of English literature, but these days science is the measure of value, and 'progress' is the goal. Scientific rhetoric abounds in literary theory and the humanities in general, out of fear, and it's publish or perish. Few Ph.D.'s have original minds, but now more than ever they're forced to fake it.

There's a lot of really bad shit out there.
 

It is a treat to have your co-authored article addressing this important topic; I plan to give it some research, as well.

My initial impression is the phenomenon you describe shifting away from the Humanities vantage somewhat resembles the effect upon the modern household some few decades since, after which juncture both spouses perforce and later from sheer joy, decided to turn to work, forever altering family structure and activities. Society has bettered from the infusion of new energy in the workplace with both spouses engaged in their respective careers, and children have delighted in the newfound independence. There are drawbacks.

With respect to the professions in practice of law I suspect the feedback loops are rerouted. There was a wistful reflection by junior Associate Justice S.A. at an event yesterday, cite:
Alito complained that people understand the courts through a news media that typically oversimplifies and sensationalizes. He said people's ability to globally amplify their comments about judges and their opinions on the Internet takes a toll on the judiciary.

"This is not just like somebody handing out a leaflet in the past, where a small number of people can see this," he said. "This is available to the world. . . . It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career."

 

Is there a relevant distinction to be made between (1) the humanities illuminating/problematizing the legal craft (2) the humanities being a source for improving the execution of the craft and (3) treating the humanities as the foundation for what law, as instrumentality, is supposed to get at or realize.
With the second, law is presumed to be more autonomous and driven by its own logic and aims than with the other two.
 

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Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.
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