Law & Society Blog

Over the past 50 years or so, legal theory has actively sought out and imported a host of new ideas and methodologies from related (and not so related) fields, such as philosophy, sociology, psychology, and, of course, economics. Why? Certainly, curiosity played a crucial role, and so did the quickly expanding reach of the law. But few disciplines are quite as obsessive as the law in their search for methodological alternatives, for external vantage points from which one can hope to make an attempt at “overcoming law.” There seems to be a certain unease with the scientific merits of doing plain vanilla law, of remaining “on the inside” and doing doctrinal work, which, in a Continental context, would be called dogmatics. And that unease may well be justified. As Brian Leiter remarked, much of jurisprudence (which includes dogmatics) “relies on two central argumentative devices - analyses of concepts and appeals to intuition - that are epistemologically bankrupt.” Many of those convinced by that analysis will try to leave the sinking ship. But some will be hampered in that effort by having staked their careers on the law. Leaving the law entirely for, say, economics, or whatever else might currently be en vogue, is an option only for the lucky (and/or particularly intense) few. The next best thing is to remain formally and institutionally within the law, but to attach oneself to an external discipline, preferably one with a more serious academic reputation. (Just wait for law & mathematics. That will be the one to end all arguments.) Of course, those who have already made it to the shore will quickly turn to doing two things: (i) create demand by promoting the field; and (ii) curtail supply by erecting barriers to entry. (It should come as no surprise that the law & economics crowd has excelled at both tasks.) And so, the refugees will turn away from the minefields of law & economics, from law & sociology, which also has become unpleasantly math-infested (gone are the days of Max Weber and Emile Durkheim!), towards seemingly safer shores ÇƒÏ such as philosophy! But not so fast, because there are formal hurdles as well. Without PhD training, says Brian Leiter, “almost no one, not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology.” (Emphasis added.) That hurts. While some, of course, refuse to go gently, others will accept their fate. And what of those? What of the brilliant, intellectually curious lawyers that are stuck and can’t leave the law? They will start a new formalism ÇƒÏ mark my words. They will rediscover Kelsen, they will want to purify the law. And then it will be deja vu all over again!

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