In his latest post, Bloomfield correctly observes the lack of genuine legal substance in the contemporary American legal discourse. The reason for that, I submit, is that unlike civil lawyers, common lawyers are second order observers of the legal discourse, not first order observers. In other words, the lawyer, unlike the judge, is not a participant in the normative legal discourse, rather, he or she provides the source materials (facts and cases) to the judge, who will then engage in the legal discourse proper, that is, a phase-shifted discussion with prior judicial authority. In this sense, Holmes’ prophecy definition of the law is entirely accurate, because as lawyers, we cannot participate in the legal discourse. The court observes the law, and the lawyers observe the court. The court is a first order observer, and the lawyers are second order observers. That puts the lawyers in the exact same epistemic position as sociologists, philosophers, or economists, which explains the phenomenon and the possibility of outsourcing substance: from a second order observer’s point of view, there are no genuinely legal arguments.
Monthly Archive for November, 2004
If you pick up an American book on legal reasoning, you’ll find more “reasoning” in it than “legal.” There doesn’t seem to be a perception that there is anything genuinely legal about reasoning in the law (except perhaps following the local court rules for submissions). You will find discussions of rhetoric and persuasive arguments, how to organize material, and reminders on punctuation. The only legal part these legal-reasoning books is the section on such rules as IRAC or CRAC (”Issue-Rule-Argument-Conclusion” and “Conclusion-Rule-Analysis-Cases”), and it is usually shorter than the section on punctuation.
I am not interested here in a critique of American legal-reasoning books. But rather in the fact that the message is the same in all the ones I’ve seen: There is nothing special about legal reasoning. Law supplies the facts, but the methodology is supplied by rhetorik, advertising, semantics and grammar.
To my mind, it’s a form of outsourcing. Rather than use a method specific to the law, we use someone else’s method. And it is not the only thing we outsource, either. If we ask about the meaning of law, we turn to sociologist on the one hand, or more likely today, economists. If we want to know what changes to make to the law, or why, we ask economists. If we want to know how to conduct ourselves in court, we turn to psychologists. And if we want the manipulate the fabric of the law, the rules, we turn to linguists. The only thing no one can take from us is the mastery over legal procedure. But the substance of the law we have outsourced.
