Paul L. Caron

Friday, December 2, 2016

Harrison:  Normative Legal Scholarship Is An Oxymoron

Jeffrey Harrison (Florida), Scholarship, Rush, and Still Waters:

I ran across the term "normative scholarship" in an article in the Journal of Legal Education by Robin West [The Contested Value of Normative Legal Scholarship, 66 J. Legal Educ. 6 (2016)]. It is, of course, and I think she would admit, an oxymoron. I've looked up every definition of scholarship I could find and no where is there any mention of normativity. Scholars search for information, inconvenient and otherwise, and report it. When they do, it is scholarship.

When they add the "should" element, it stops being scholarship and it becomes advocacy. This is not true just of your run of the mill article in which someone tries to convince you that the position they hold is the "right" one (usually by reporting what others have written that supports that position and not reporting what does not.) It also applies to any empirical work in which the author interprets the results with a certain "correct" spin without coming clean about other possible interpretations.

This is not to say no law professors produce scholarship. Some do. And, this is not to say all normative scholarship is bad. But it is to say that it is not scholarship, it is advocacy. Why don't more law professors do scholarship? The easy answer is they do not know how. They were not trained to be scholars. ...

If law professors were critical thinkers when they were students and had to be critical thinkers to the extent they practiced law, how did it evolve that they lost the one ability that distinguished them from politicians as well as the Rush Limbaughs of the world? What exactly about being hired onto law faculties qualified them to be moralists? Is it just arrogance that propels young Jane or Timmy into thinking making high grades at an expensive law school made them minor gods? In fact, nothing made them any more qualified to say what should happen than (dare I say it, oh what the hell) that orange guy with the dead dog on his head who will soon be President.

Their scholarship is like a pebble tossed in a pond and results in not a single ripple. In legal scholarship, still waters run deep.

Legal Education, Scholarship | Permalink


When Prof Harrison wakes up from his beautiful dream world of neutral legal principles, will someone please tell him that all legal scholarship is inherently normative.

Posted by: Enrique | Dec 6, 2016 6:33:14 AM

Fair point. There is no surprise that it is done. The surprise is that it is regarded as "scholarship" for tenure and promotion purposes when it is more accurately labeled "service." If that were the case, more law profs would find it in their interests to do scholarship.

Posted by: Cornel1 | Dec 5, 2016 9:41:32 AM

The point was that it is not surprising that advocacy makes its way into legal scholarship, not that “law professor writing should be advocacy.” Principles of science come from natural phenomena. Scientists use a scientific method that involves formulating a hypothesis based on observation of nature and then verifying or disproving the hypothesis through experimental research on behalf of their employers or clients. Science scholarship generally reflects this scientific method as well. Laws come from a political process. Lawyers use advocacy to persuade judges and adversaries how the law should be interpreted and applied in their employer’s or client’s favor. With this in mind, is it a surprise that some legal scholarship contains advocacy? Perhaps you read different legal scholarship than I do, but the scholarship I see has much less of an agenda and is less advocacy-oriented than one would expect given what lawyers do.

Posted by: Another Untenured | Dec 4, 2016 8:47:40 PM

That's pretty odd thinking -- law professor writing should be advocacy because it is part of truth seeking. Where is the cross examination, the impartial judge? Instead its persuasiveness is directly related to institutional authority. Law school "scholarship" is not and will never be taken seriously by other scholars (even other law professors) as long as it is agenda driven. Why should it be?

Posted by: Cornel1 | Dec 4, 2016 1:19:06 PM

Is advocacy inconsistent with scholarship? I am not convinced they are inconsistent. Is it so surprising that there would be more advocacy in legal scholarship than scholarship in other fields of study? Law faculty members prepare students for lives as advocates. Is advocacy inconsistent with seeking truth? Not in the legal field. The cornerstone of the legal system is the adversary process where truth is arrived at through advocacy. Is legal scholarship above criticism? Of course not. There are opportunities for improvement in every human endeavor. But I am not convinced that legal scholarship should rid itself of advocacy, which is what these commenters are advocating.

Posted by: Another Untenured | Dec 3, 2016 8:43:01 AM

Whiny, conclusory, condescending, and self aggrandizing.... the quartet that pervades Jeffrey Harrison's musings. Listening to you bemoan advocacy is akin to hearing Fran Drescher complain about someone's laugh.

Posted by: 2016LLM | Dec 2, 2016 9:45:06 PM

This. A million times, this. And at least as frustrating is how few in the legal academy understand this.

Posted by: Untenured | Dec 2, 2016 2:05:50 PM

Truth or Consequences in Legal Scholarship?


There has been an erosion of the ideal of truth as a guiding force for what we do. This includes a dishonoring of the tradition of the truth-seeking function of scholars. For the university-based intellectual, including legal scholars, the problem with commitments to ends other than truth-seeking is that once we accept a mission distinct from the pursuit of truth and honest discourse, most of the remaining options are suspect - including falseness, hypocrisy, self-deception, subordination of self to a collective, profit, dogmatism, devotion to tradition, and propaganda.

Although what we intend by the idea of truth - legal, scientific, political and otherwise - is obviously subtle, wide-ranging, functionally disparate and perhaps impossible to make entirely concrete, this essay concentrates on the complex and beleaguered phenomena of truth and truth-seeking within academia and the noncumulative disciplines of which law is a part. This focus is chosen because of the belief that a society without commitment to the ideal of truth with integrity and honesty (even if not entirely real or provable) is not a community but only a collection of disparate people seeking to take advantage of each other while never being able to trust the validity of anyone or anything. A society without the ability to negotiate reliable terms of what will be considered true and thus authoritative is one in which promises are meaningless, nothing is reliable, and betrayal is a predictable and even inevitable condition of relationships. Western societies grounded on the Rule of Law cannot afford to surrender such a basic principle without devolving into a system operating on increasingly prevalent use of force and Machiavellian machinations by fragmented but powerful political cliques.

Camus warns of the distortion that occurs when individuals engaging in the struggle to achieve what they think to be social justice simultaneously try to be clear-thinking scholars. Consider his poignant observation in the context of the creativity of the artist and the need to keep sufficient distance from the heated conditions of society in order to retain a clear perspective. He writes: [I]t is not possible to be a militant in one's spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena. Yet between the two lies the arduous way of true art. It seems to me that the writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history.

We have lost the distance and are increasingly consumed by ideology and the narrowness of political perspective. A result is that much of what is said in noncumulative academic disciplines such as law is suspect.
Repository Citation

David R. Barnhizer, Truth or Consequences in Legal Scholarship?, 33 Hofstra Law Review 1203 (2005)

Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America

David R. Barnhizer, Cleveland State University

Document Type

Publication Date

Publication Title

University of Pittsburgh Law Review

This Article is concerned with legal scholars' intellectual and social obligations emerging from their having preempted the field of law, possessing a monopoly on legal education, and benefitting from their privileged status as intellectuals of the law. While these obligations fit under the general heading of service to the original and natural idea of knowledge, it is argued here that legal scholars and judges fulfill their obligations primarily through three fundamental roles. The three fundamental roles of American legal scholars and judges are 1) judges and legal scholars acting as reformulators (priests and prophets) of "ultimate truths" in the particular language of each culture and generation, 2) judges and legal scholars serving as societal "shock troops," and 3) judges and scholars as "power blockers."

Link to a copy on HeinOnline - Available at your institution or remotely via their proxy server or via password.
Repository Citation

David R. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 University of Pittsburgh Law Review 127 (1988)

Posted by: David | Dec 2, 2016 10:43:16 AM