Scholarship is the serious study of an academic subject and the knowledge and methods involved.
Legal scholarship does indeed embrace a wide spectrum of disciplines, goals, motives, and organizing principles. But I admit: it is not very organized. There are no easily stated unifying goals, methods, or criteria of excellence. All that said, what unifies it, ultimately, is subject matter: everyone engaged in something called “legal scholarship” is interested in law. There are varying forms of scholarship, from the doctrinal and reformist to the theoretical and interdisciplinary and pedagogical. Some of the scholarship is excellent; some is not so good.
Legal scholarship has different goals and methods, and accordingly there are different criteria of value. However, a scholarly enterprise is diverse and that is a good thing. Pluralism (a system in which two or more principles co-exist) is in order, indeed. Doctrinal scholarship and reformist scholarship is scholarship, even though it is “normative,” (ie deriving from a norm or standard).
Critical, theoretical and interdisciplinary scholarship is legal scholarship even though it is not normative. What holds them together is a common thread. The common thread in all of this is the focus on law. Doctrinal scholarship might be good or bad, deep or shallow, but it isn’t disqualified by virtue of the fact that it is doctrinal. Interdisciplinary scholarship might be good or bad, but should not be disqualified by virtue of the fact that it isn’t normative, and has no immediate utility for practicing lawyers. It deepens our understanding of the law we have, just as normative scholarship, ideally, deepens our appreciation of the law that should be.
A healthy legal institution has room for all of it; a healthy community of legal scholars should value it all. Doctrinal scholars keep us grounded in the law itself, as well as our ambitions for it. Theoretical scholars keep our focus on foundational questions and our “long game” ambitions and aspirations for law. Interdisciplinary scholarship has enriched hugely our understanding of the connections between law, politics, the economy, and humanistic, religious and moral traditions. Pedagogical (teaching) scholarship keeps returning our focus to what we convey to our students. The importance and the value of legal scholarship can best be appreciated perhaps by imagining a world without it.
What would it be like?
Without legal scholarship, the legal profession would be arid, mechanistic and formalistic places. They would train lawyers, but less well because they would not aspire to educate. An exclusive focus on skills would be self-defeating; It would leave out lessons on how to think, much less think like lawyers.
Lawyers vision of law and lawyering would be stunted, and limited by current practices, uninformed by foundational understandings, and un-tempered by even a glancing acquaintance with the disciplines of the humanities, of which law is a part, or the inquiries of the social sciences, to which law and empirical legal studies contribute.
One would lose the attention and loyalty of lawyers who value the law degrees in part because of the breadth and depth of the interdisciplinary and deep legal education they find here – precisely because of, not in spite of, the scholarly mission. Judges, legislators, and administrators would lose the critical commentary on law, and the theoretical understanding of its underpinning. The publication by the Colombo Law Society of the Hulftsdorp Law Journal is therefore most welcome.
Without legal scholarship on gray areas of doctrine, for instance, judges would have rendered opinions, to be sure, but those opinions may not have been as thoughtful or justice seeking as they are.
Lawmakers and administrators would not have had the benefit of richly developed work articulating the need for legal change to address injustice. Lawmakers for instance might not adopt legislation without legal scholarship. The legal theories that have fundamentally changed our thinking about the law might not exist or they might not be articulated as richly as they are.
The educative function of training the lawyers and judiciary to understand and deal with economic concepts would be gone, since the grand transformative ideas always come from academia because legal scholars are uniquely suited to generate them and because they infuse their courses with ideas that then become second nature to a generation of students who become practicing lawyers, judges, and administrators who then employ them.
Without legal scholarship, the profession would lose its sense of law as either a science or an art, or of course alternately both. It would be a drab, cold, technocratic world. When we lose, or threaten, the scholarly mission, we lose the “learning” at the legal profession’s core and hence we sacrifice professionalism. Everyone involved in the legal enterprise—law schools and their students, the practicing Bar and their clients, courts, lawmakers and their staffers, administrative agencies and more—would surely be worse off without it.
I would therefore commend that regardless of subject matter, lawyers should acquire an appreciation of the immensity of law and its tendrils, and the complexity of its interplay with individuals’ aspirations, family life, and community. They may, if they’re fortunate, acquire a sense that the complexity of those relations just might be manageable: a student’s seminar paper, like his professor’s developed scholarship, can, if it is good, state a problem cleanly and explore it thoroughly.
Students would have a better understanding of law, and have more confidence in their ability to bring it off. That earned confidence might in turn find an echo in life after law school: confidence in one’s scholarly abilities, in law, might feed his confidence in his ability to contribute, by carving out particular problems, stating them cleanly and exploring them thoroughly, to the professional lawyer’s task of finding and doing justice, and using law to do it, in the face of enormous local, national and global challenges.
The law school, whether it be a university or the Law College, is more than a place that trains men and women to plead causes and to advise clients; it is a place for dialogue, for reflection, for definition and comparison of values. It is a special place, a unique social resource. Here, there can be gathered a community of scholars with the luxury of time, the support of colleagues, and the devotion to inquiry that are the essential predicate for the development of new ideas and values concerning law, legal institutions, and the never-ending quest for justice.
Purely vocational training could be done well on the job in law firms or in free-standing law schools. And there are so many of them now. The special contribution of the law school, is its capacity to encourage, create, and transmit insights that deepen the way we think about the nature of law as well as its uses, its limitations, and its role in our striving for social justice.
Therefore, a first-rate law school cannot remain insular but must become integrated into the university. The interrelatedness of human knowledge is too apparent, and the kinds of social behaviour that the law regulates too varied, to permit legal scholars to rely solely on legal reasoning, no matter how tough or good.
Therefore, in addition to traditional legal reasoning, legal scholarship must employ the techniques and insights of other disciplines such as economics, history, literature, philosophy, psychology, and sociology. In a pluralistic world of clashing cultures, a community of shared belief is fragile and evanescent. The scholar’s ideal of a community of truth asserts that a more enduring bond can be built on “the convergence of our independent personal experiences” of reality.
The most important function of legal scholarship is to preserve and expand the community that truth promises. It does so through scholarship-inquiry devoted to the discovery of truth. The scholar seeks knowledge for its own sake, not for some further purpose, although the knowledge he acquires may be instrumentally useful for other ends. To understand the world as it truly is-this, and nothing else, is the goal of scholarship.
The best and most important scholarship emerges from a community of scholars that functions in the way that only the best universities can: through an endless process of discovery, reflection, and dialogue concerning ideas, facts, and values carried on in an atmosphere of mutual support and understanding.
Empirical, theoretical, and normative inquiry are indispensable not only to the creation of new knowledge but to the training of better lawyers. Law students who develop theoretical understanding, critical judgment, and the discipline to apply those qualities rigorously to a variety of situations will be able to deal effectively with the results of accelerating social and technological change.
So do not under-estimate the importance of legal scholarship. Commit yourself to it.
Source: Hulftsdorp Law Journal 2020
DR. KANAGANAYAGAM KANAG-ISVARAN, PRESIDENT’S COUNSEL
