The New Legal Scholarship: Problems and Prospects.

Abstract

Legal scholarship has changed dramatically in this century. Early in this century, legal scholarship found form and coherence in a method of study and teaching often referred to as the doctrinal approach. This approach placed its emphasis on the determination of rules, principles and procedures through the detailed analysis of cases — a method that goes back at least as far as Langdell's reforms at the Harvard Law School. There can be little debate as to the professional success of this approach to legal scholarship. It provided a method for teaching and for the writing of legal treatises and law review articles that endures to this day.Yet if there was a purity to this methodological emphasis on “law in the books,” there was also an incompleteness that led others to call for research on the “law in action.” Often known as the legal realist movement, and best documented in its emergence at the Yale Law School, this approach to legal scholarship called attention to gaps between doctrine and practice. It is interesting to note that both the traditional doctrinal approach and legal realism were eager to claim the mantle of science. In doing so, the doctrinal approach focused on recorded cases as its units for observation and analysis, while the realists moved beyond these official accounts to examine the way the law actually was applied and affected people's lives. The realist's point was that the law often only affected social life indirectly and that doctrine frequently affected society in uncertain and unanticipated ways.

The Possibilities and Perils of Legal Studies

“…Law as a social phenomenon cannot be reduced to a set of empirically observable relations or activities that can be examined according to well-established canons of inquiry to produce empirically-testable hypotheses about the behaviour of legal actors or the structure and culture of legal institutions. Nor is it particularly useful to try to claim the inherent intellectual superiority of empirical studies of the law in action, with its connotations of rigorous, value-free methods of scientific inquiry, as compared with the normative focus of most doctrinal legal scholarship (cf Friedman, 1986;Hagan, 1986). This is where I part company with many in the law and society movement in Canada and the U.S.A. and the socio-legal studies movement in Britain and Australia.…”

“…But it is clear that it will remain necessary to try to counter the tendency towards academic colonialism on the part of the legal academic community by encouraging an intellectually active community of legal studies researchers outside the professional law schools. Otherwise, there is a danger that the contribution of social scientists and critical doctrinal scholars to an understanding of law as a social phenomenon will continue to be marginal to the primary purpose of the law school in training legal professionals (Hagan, 1986).…”