Paul L. Caron
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Sunday, March 28, 2021

Legal Theorists Have Much To Learn From Other Fields

Following up on my previous posts:

Chronicle of Higher Education op-ed:  Legal Theorists Have Much to Learn From Other Fields, by Adam Shapiro (Ph.D. History & Philosophy of Science & Technology, University of Chicago):

Not only those trained in the law are competent to speak about society.

Like science, legal scholarship is a specialized knowledge community that vigorously defends a distinction between insiders and outsiders. But — to borrow from the subtitle of one of the most important books in science and technology studies, Steve Shapin’s Never Pure — law, like science, is “produced by people with bodies, situated in time, space, culture, and society, and struggling for credibility and authority.” That’s where the study of law and society enters the picture.

Over 100 years ago, the sociologist of law Eugen Ehrlich wrote that “the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” Writing in the Stanford Law Review nearly three-quarters of a century later, Lawrence M. Friedman described a “law and society movement” composed of a range of humanistic and social-scientific disciplines that “share … a general commitment to approach law with a vision and with methods that come from outside the discipline itself; and they share a commitment to explain legal phenomena (though not necessarily all legal phenomena) in terms of their social setting.” Scholars involved in this work are certainly not ignorant of the fact that lawyers “operate with laws written down in texts,” as Paul Gowder put it. Some even have legal training. But the field of law and society is pluralistic and examines more than just the written laws. It approaches “society itself” through history, economics, anthropology, literature, linguistics, and philosophy, as well as sociology.

Just as science and technologies studies treats the practice of science in terms of its own research questions, the field of law and society need not restrict itself to the service of explicating the law or assisting the work of legal scholars. Scholars of law and society might not take the words of jurists at face value, and they will often suggest that there is context beyond the laws written down in texts. It is not the case that only those trained in the law are competent to speak about society.

To law and society’s disciplinary buffet we should also include religious studies. The U.S.’s ethos of publicly expressed faith and ritual and the country’s reliance on religious (often Christian) iconography and archetypes to frame its civic life mean that few aspects of its history or politics can be understood without taking religion into account.

In itself, this is not a radical claim. Indeed, Noah Feldman’s scholarship exemplifies engagement at the intersection of religion and the law. But religious context may be especially helpful in understanding the growing influence of U.S. constitutional originalism — both within the ranks of judges and legal scholars, and as an associated political movement meant to appeal to religious communities en masse and to individual voters whose preferences are religiously motivated. An article published this month, for instance, examines the effect of school desegregation on the rise of originalism — which is especially noteworthy, given the fact that the same issue galvanized right-wing Christian political activism. ...

A generation ago, scientists told science-and-technology-studies scholars that their observations and conclusions were meaningless if they weren’t also trained participants in the sciences. The scientists felt that the science-studies scholars’ work damaged their efforts to project the disciplinary power needed to settle debates within their field. Taken at face value, the clash between scientists and scholars was a debate about disciplinary boundaries and claims to knowledge. But scholars on both sides were also situated in time, space, culture, and society, and struggling for credibility and authority. An outside observer of the “science wars” might recognize them as an expression of the shifting balance of power and authority between the humanities and STEM fields.

From the perspective, of money, prestige, and institutional presence, it’s obvious which side won the science wars. But decades later, the matter is less clear. A new generation of scientists is using the insights of science and technology studies to raise normative questions about how to make its work more credible, more equitable, and more sustainable. It’s not new for humanists and social scientists to be attacked because a better funded and empowered discipline dislikes the fact that their very ability to influence society makes them worthy objects of study. But it’s counterproductive. Humanists can certainly learn from their colleagues trained in the law. But such a conversation cannot be successful if it is valued only when it offers something of immediate interest to legal theory.

https://taxprof.typepad.com/taxprof_blog/2021/03/legal-theorists-have-much-to-learn-from-other-fields.html

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