THE NATURE OF LEGAL SCHOLARSHIP
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02611.x |
| Author | David Feldman |
| Date | 01 July 1989 |
| Published date | 01 July 1989 |
THE NATURE
OF
LEGAL SCHOLARSHIP
WE tend to assume that everyone knows what is meant by scholarship
in general and legal scholarship in particular.’ Professor Geoffrey
Wilson’s recent essay on English legal scholarship is an example.2
He
conducted a wide-ranging review
of
the state
of
English legal scholar-
ship without feeling the need to articulate any model
of
scholarship.
Nevertheless, since he doubted the possibility
of
scholarly study
of
English law in isolation from any c~mparative,~ sociological
or
philo-
sophica14 element and decried the general quality
of
much
of
English
is it?
Scholarship is related to the good
of
knowledge.6 The object is to
discover more about whatever is being considered, and to understand
it better. Are some kinds
of
knowledge and understanding, or some
ways
of
seeking them, better than others? Here are four ways in
which forms
of
knowledge-related enterprise might be evaluated:
legal scholarship,
3
some model
of
scholarship must be implicit. What
(a) as being more or less scientific;
(b) as being more or less in tune with certain formal values
(c)
as being more or less useful;
(d) as being valued more or less highly in the market-place
of
which are integral to a serious search for truth;
ideas.
Wilson seems to assume that option (a) is the best criterion for judg-
ing scholarship: a scientific activity is more scholarly than an unscien-
tific Section
I
of
this paper evaluates that view, and argues
instead that option (b) offers a more appropriate model. Section
I1
explores some implications of that for research and writing in legal
and socio-legal spheres. Options (c) and (d), which are related, will
re-surface there (only to be discarded again).
~~ ~~ ~
See the essays on legal scholarship in the fiftieth anniversary edition
of
the Modern
Law Review,
(1987)
50
M.L.R.
673-854,
e.g.
M.
Chesterman and D. Weisbrot, “Legal
Scholarship in Australia,”
709-724;
M. Tushnet, “Legal scholarship in the United
States: an overview,”
804-817.
*
G.
Wilson, “English Legal Scholarship”
ibid.,
818-854.
Wilson has a strong belief in the value
of
comparative study:
ibid.,
829-834.
Ibid.,
823-829.
Ibid.,
819:
“The words ‘English legal scholarship’ though high sounding have
a
similar function
to
the words ‘disposable plastic cup.’ Each adjective strengthens the
message that one cannot expect much in terms
of
quality
or
long-term utility from it.”
On knowledge as a “good,” see
J.
Finnis,
Natural
Law
and
Natural
Rights
(Oxford: Clarendon Press,
1980),
pp.
59-80.
’
Wilson,
op.
cit.
note
2,
p.
822,
asks (following Daniel Mayes and Brian Simpson)
“Is
law a science
or
is it something less dignified?”
498
JULY
19891
THE NATURE
OF
LEGAL SCHOLARSHIP
499
I.
THE
MODEL
1.
Science, objectivity
and
the nature
of
scholarship
Why should we regard science as the paradigm of scholarship? The
argument implicit in Wilson’s article is that understanding can best be
furthered through techniques which allow us to cast
off,
so
far as
possible, subjective beliefs and
a
priori
assumptions: socio-legal
studies manages it by adopting scientific techniques; comparative law
can claim a scientific objectivity denied to studies rooted in a single
legal system; jurisprudence and political theory likewise attempt to
transcend the limits
of
individual systems in the search for under-
standing of legal phenomena generally.
If
the right scientific tech-
niques are used, he seems to say, we might come closer to scientific
legal theory, though law will always be
a
“second order and applied”
rather than an “original” science, and perhaps will never be
a
“disci-
pline.”’
By contrast, Wilson sees studies of individual systems, using the
techniques
of
analysis developed through the legal cultures
of
those
systems, as being intrinsically unscholarly for two reasons. First, they
necessarily adopt many of the basic assumptions and beliefs which
underlie the system being studied. The attempt to expound or explain
law from an internal viewpointg is inescapably fettered by the ideolo-
gical lumber of the legal system itself. Secondly, despite lawyers’
claims that law” is sufficiently systematic, predictable and principled
to be studied scikntifically
,”
sceptics can find remarkably little logic
in law. Instead, there is a pragmatism masking judicial dogmatism
whose chaotic consequences are only slightly mitigated by attachment
to the ideological values of the rule of law, rights and
so
on.12
The appeal
of
science is that it cloaks one’s work in an aura
of
objectivity. The appeal
to
science, however, is open to challenge on
three grounds. First, one can argue that portraying the social
sciences, comparative law and philosophy as specially scientific or
objective ignores the limitations of scientific method. Secondly, it
takes too uncritical a view of inflated claims for the scientific status of
Ibid.,
827.
See H.
L.
A.
Hart,
The Concept
of
Law
(Oxford: Clarendon Press, 1961), pp.
55-56 on the internal aspect.of a rule, and pp. 109-114 on the significance of the inter-
nal point
of
view for understanding the existence of a legal system; R.
M.
Dworkin,
Law’s Empire
(London: Fontana, 1986), pp. 78-85, on the significance of the distinc-
tion between internal and external critiques of an interpretation of law.
lo
Or,
at any rate, successful law,
i.e.
law that is performing its proper functions
(whatever they may be). See, from different perspectives,
M.
Weber,
Economy and
Society:
An
Outline
of
Interpretive Sociology
(ed.
G.
Roth and
C.
Wittich, New York,
1968), Chap.
2,
and
L.
Fuller,
The Morality
of
Law
(revised ed., New Haven: Yale
University Press, 1969). Chap. 2.
’’
The desire
to
allow lawyers
to
operate as legal scientists was one
of
the main moti-
vations behind Kelsen’s development of a “pure” theory
of
law.
Wilson,
op.
cit.
note 2,842-844.
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