Redirecting Legal Scholarship in Law Schools

Yale Journal of Law & the Humanities Volume 12 | Issue 1 Article 5 January 2000 Redirecting Legal Scholarship in Law Schools Austin D. Sarat Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Austin D. Sarat, Redirecting Legal Scholarship in Law Schools, 12 Yale J.L. & Human. (2000). Available at: https://digitalcommons.law.yale.edu/yjlh/vol12/iss1/5 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Sarat: Redirecting Legal Scholarship in Law Schools Book Review Redirecting Legal Scholarship in Law Schools Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship. Chicago: University of Chicago Press, 1999. Pp. 169. $27.50. Austin D. Sarat* I. INTRODUCTION If, as the saying goes, all politics is local, then perhaps all (or if not all then much) scholarship is disciplinary, written to imagined audiences cabined by their differing departmental affiliations. Political scientists write mostly to and for other political scientists, anthropologists to and for other anthropologists, psychologists to and for other psychologists, law professors to and for other law professors. Seen from the inside of any one of these disciplines, a particular book may appear powerful, profound, even paradigm shifting. Seen from the outside, from the terrain of another discipline, that same book may seem to be a bit less original, less striking. Paul Kahn's The Cultural Study of Law: Reconstructing Legal * William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College. I am grateful to the Reading Group on Law and Culture for a lively discussion of The Cultural Study of Law. I benefited greatly from that discussion in the preparation of this Review. 129 Published by Yale Law School Legal Scholarship Repository, 2000 1 Yale Journal of Law & the Humanities, Vol. 12, Iss. 1 [2000], Art. 5 Yale Journal of Law & the Humanities [Vol. 12:129 Scholarship' is, for me, just such a book. From the perspective of legal education in professional schools, this will be a controversial and truly important book, laying out a program for a new academic discipline freed from the constraining vision and needs of legal practice. Calling for the "reconstruction" of legal scholarship, pointing the way for "cultural" analysis of what he sometimes labels the "rule of law" and at other times simply "law's rule, 2 Kahn quite rightly asks: "Would a legal scholar who purports to suspend belief in law's rule-even as a program of reform-be welcome in the nation's law schools?"3 Advocating the development of a discipline in which law could take its rightful place alongside philosophy, economics, or politics as a pillar of scholarly inquiry, he observes that "[1]egal scholars are not studying law, they are doing it."' The development of "a discipline of study outside of the practice of law" depends, Kahn contends, on a reorientation of the scholarly ambitions of law professors Instead of focusing their attention on the project of improving the law, they should make room for a more purely academic effort to understand the place of law in culture, its power over the imagination of citizens, and its relative importanceas against politics on the one hand and love on the other-in colonizing the human imagination. In this new conception of legal scholarship, "[a]ll questions of reform-the traditional end of legal study-are bracketed."6 Comparing the situation of legal scholarship at the end of the twentieth century with the situation of religious studies at the end of the nineteenth, he notes: [U]ntil the turn of the twentieth century, the study of Christianity was not an intellectual discipline. It was, instead, a part of religious practice. Its aim was the progressive realization of a Christian order in the world.... Only when the theological project became capable of suspending belief in the object of its study could a real discipline of religious study emerge.... Similarly, the scholar of law's rule should not be asked whether law is the expression of the will of the popular sovereign and thus a form of self-government. These are propositions internal to the systems of belief. A scholarly discipline of the cultural form approaches these propositions not from the perspective of their validity, but from the perspective of the meaning they have 1. PAUL KAHN, SCHOLARSHIP (1999). 2. 3. 4. 5. 6. THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL Id. at 2. Id. at 3. Id. at 27. Id. at 3. Id. at 2. https://digitalcommons.law.yale.edu/yjlh/vol12/iss1/5 2 Sarat: Redirecting Legal Scholarship in Law Schools 2000] Sarat for the individual within the community of belief.7 "Suspending belief in the object of its study" is a wonderfully evocative phrase to describe the attitude that Kahn rightly suggests must characterize a genuinely academic discipline of law.' By suspending belief, legal scholars can focus their attention "on the intellectual project of understanding a culture of law."9 The central issue for such a project is, in Kahn's view, "not whether law makes us better off, but rather what it is that the law makes us."'" "A new discipline of law," he argues, "needs to conceive its object of study and its own relationship to that object in a way that does not, at the same moment, commit the scholar to those practices constitutive of the legal order."" By making this argument, Kahn, a well-respected legal academic, seems to distance himself courageously from the professional project of the legal academy,'2 though, as I argue below, the manner in which he makes his argument reaffirms the privileges of the law school as the appropriate center of legal scholarship. As Kahn lays out what he takes to be the central focus of a kind of legal scholarship freed from the professional project, he compares the work of such scholarship to the work of cultural anthropology." He asserts that "the question that defines a cultural discipline of law is: What are the conceptual conditions that make possible that practice that we understand as the rule of law?" 14 As he elaborates this question he suggests that legal scholarship ought to identify the forms of understanding that "make possible the range of behaviors that we characterize as living under the rule of law."' 5 This effort requires inquiries that he labels "genealogical" and 7. Id. at 2-3. 8. Id. at2. 9. Id. at5. 10. Id. at 6. 11. Id. at 27. 12. "The legal academic," Kahn suggests, "is the captive of law." Id. at 30. Unlike what Brigham and Harrington claim about legal realism, Kahn does not at first glance seem to be appropriating "modem understandings in the interest of maintaining establ (...truncated)