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Why Teach Legal Theory Today?

Published online by Cambridge University Press:  06 March 2019

Guilherme Vasconcelos Vilaça

Abstract

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Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.

Type
Articles
Information
German Law Journal , Volume 16 , Issue 4 , 01 September 2015 , pp. 781 - 819
Copyright
Copyright © 2015 by German Law Journal GbR 

References

1 For a development of this and other charges, see Melkevik, Bjarne, Pourquoi Étudier La Philosophie du Droit? Quelques Réflexions Sur L'enseignement de la Philosophie du Droit, Colloque SPQ, “Enseigner la philosophie” (1998), available at http://www.reds.msh-paris.fr/communication/textes/mel3.htm. Lledó calls attention to a related problem. See also Juan Antonio Pérez Lledó, Teoría y Práctica en la Enseñanza del Derecho, 5 Revista Sobre Enseñanza Del Derecho 185 (2007). Students often complain that the study of law is too theoretical. Focusing on Spain, Lledó successfully argues how legal education can be theoretical in a bad way, i.e., reproducing the legislator's words, omitting practical consequences of theoretical disputes, emphasizing taxonomical conceptual analysis, and engaging in authentic interpretation of important legal theorists.Google Scholar

2 Browne, Denis, Reflections on the Teaching of Jurisprudence, 2 J. Soc'y Pub. Tchrs. L. 79, 79 (1953).Google Scholar

3 See, e.g., Cotterrell, Roger, Pandora's Box: Jurisprudence in Legal Education, 7 Int'l J. Legal Prof. 179, 180 (2000); Csaba Varga, The Philosophy of Teaching Legal Philosophy in Hungary, Iustum Aequum Salutare 165 (2009). This crude generalization is also based on my personal knowledge of different European law schools as well as a brief consultation of a number of legal theory course profiles.Google Scholar

4 See Hamson, C. J., The Teaching of Law: Reflections Prompted by the Unesco Inquiry 1950–1952, 2 J. Soc'y Pub. Tchrs. L. 19, 19–20 (1954); Browne, supra note 2; see, e.g., W. Friedmann, Legal Theory and the Practical Lawyer, 5 Mod. L. Rev. 103, 107 (1941).Google Scholar

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6 But see Melkevik, , supra note 1, at 2; Cotterrell, supra note 3, at 181; Lledó, supra note 1, at 86; Varga, supra note 3, at 165–66. In the 1970s, Cotterrell & Woodliffe had already noticed “the absence of any public debate in academic circles of the place of jurisprudence in the structure of legal education.” Roger Cotterrell & J. C. Woodliffe, The Teaching of Jurisprudence in British Universities, 13 Soc'y Pub. Tchrs. L. 73, 73 (1975).Google Scholar

7 Jurisprudence or Legal Science? A Debate About the Nature of Legal Theory 1 (Sean Coyle & George Pavlakos eds., 2005) [hereinafter Jurisprudence or Legal Science?].Google Scholar

8 For example, the Legal Education Review in Australia, the Journal of Legal Education, the Clinical Law Review, and A Journal of Lawyering and Legal Education, all in the U.S., have been very active. The European Journal of Legal Education seems to have ceased to exist in 2008 after publishing only four volumes. Nowadays, the German Law Journal is the outlet that pays more attention to the reform of legal education, e.g., the 2009 special edition, Transnationalising Legal Education. Finally, one should keep in mind four additional reviews: the International Journal of the Legal Profession, the Journal of Commonwealth Law and Legal Education, and the Law Teacher and Legal Studies that replaced the Journal of the Society of Public Teachers of Law in which a number of papers on the teaching of jurisprudence in the UK had appeared.Google Scholar

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11 Sampford, & Wood, , The Place of the Legal Theory, supra note 9, at 105. See also Varga, supra note 3, at 182. I do not wish to fully evaluate this argument here, but it seems to me that it begs the following question: Why should law be an academic subject instead of a professional one? All around the world, legal education reform has favored expanding skills training (e.g., the spread of clinical legal education). See Richard J. Wilson, Training for Justice: The Global Reach of Clinical Legal Education, 22 Penn St. Int‘l L. Rev. 421 (2004). Because this is not the focus of the present article, see Charles R. Irish, Reflections of an Observer: The International Conference on Legal Education Reform, 24 Wis. Int‘l L.J. 5 (2006); The Internationalization of Law and Legal Education, (Jan Klabbers & Mortimer Sellers eds., 2009) [hereinafter Internationalization].Google Scholar

12 See Browne, , supra note 2, at 79; Cotterrell, supra note 3, at 182; Crowe, supra note 9, at 9.Google Scholar

13 See Troper, & Michaut, , supra note 5. In the common law world, the opinion that, despite all its current problems, legal theory is worthwhile for legal education and practice also seems to prevail. See, e.g., Jurisprudence or Legal Science?, supra note 7; Mootz, supra note 9. But see, e.g., Larry Alexander & Emily Sherwin, Law and Philosophy at Odds, in On Philosophy in American Law 241, 246 (Francis J. Mootz III ed., 2009) (claiming that even if philosophy may be of use to law, individuals may be unable to apply it in real life); Philip Leith & John Morrison, Can Jurisprudence Without Empiricism Ever be a Science?, in Jurisprudence or Legal Science? A Debate about the Nature of Legal Theory 147 (Sean Coyle & George Pavlakos eds., 2005) (arguing that jurisprudence needs to be empirical if it wants to be of interest for legal practice).Google Scholar

14 See Simon, William H., Visions Of Practice In Legal Thought, 36 Stan. L. Rev. 469, 469–70 (1984). The terms are Simon's, but I employ them here with variations.Google Scholar

15 Id. at 489.Google Scholar

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20 Philosophical commentary on the nature and character of legal theory, however, is more developed. Recently, Dagan and Kreitner have justified the autonomy of legal theory by distinguishing it from the “law and … ” scholarship and the “law as craft” stance. See Dagan, Hanoch & Kreitner, Roy, The Character of Legal Theory, 96 Cornell L. Rev. 671 (2011). Legal theory has been distinguished between prudentia (practically and normatively oriented) and scientia (inquiring on the essential features of law). See Jurisprudence or Legal Science?, supra note 7. For a normative view of legal analysis, see Roberto Magabeira Unger, What Should Legal Analysis Become? (1996). Unfortunately, these works never discuss concretely the impact of legal theory on legal practice.Google Scholar

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33 Internationalization, supra note 11, at 172.Google Scholar

34 Goldmann's legal dogmatics work, which catalogues international legal instruments, is a good example of a theoretical approach guided by legal practical concerns. See Goldmann, Matthias, Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority, 9 German L.J. 1865 (2008). Calliess and Zumbansen's encyclopedic work on a theory of transnational law shows the limits of comprehensive theoretical approaches which do not include a legal practice point of view. See Calliess, Gralf-Peter & Zumbansen, Peer, Rough Consensus and Running Code: A Theory of Transnational Private Law (1st ed. 2010).Google Scholar

35 Smith, Steven D., Jurisprudence: Beyond Extinction, in On Philosophy in American Law 249 (Francis J. Mootz III ed., 2009). Hart's emphasis on the internal point of view as upheld only by legal officials also deprives his jurisprudence of critical bite. Finally, even in the heyday of positivism—when Hart won the debate against Fuller—it remained mysterious how one could make the case that the separation of law and morality was desirable, because it preserved the possibility of criticising positive law from the outside. On the impossibility and meaninglessness of making such a claim, see Liam Murphy, Better to See Law This Way, 83 N.Y.U. L. Rev. 1088 (2008).Google Scholar

36 Dworkin, Ronald, Law's Empire 11 (1986) (assuming that a central task of legal philosophy is “intelligent and constructive criticism of what our judges do”). For a trenchant critique of a jurisprudence modeled after judicial practice, see Schlag, supra note 28, at 263 (“Be intellectually serious. Drop the received scholarly agendas. Forget reflective equilibrium. Ditch the ideal observer. Throw your copy of ‘The Concept of Law’ into a lake and give ‘Law's Empire’ to a homeless person. Also, stop worrying about helping the courts with their various legitimation needs. They don't need you. Really. They'll be just fine.”) It remains unclear, however, how Schlag's jurisprudence contributes to legal practice, albeit he seems to be committed to practically relevant legal theory.Google Scholar

37 The positivist reaction, recognizing that Dworkin was right but that his account did not presuppose a necessary link between law and morality, confirms the sterility of general jurisprudence debates for legal practitioners.Google Scholar

38 Dworkin, , supra note 36, at 3.Google Scholar

39 In the style of Critical Legal Studies.Google Scholar

40 Dworkin, , supra note 36.Google Scholar

41 See Dworkin, Ronald, Rights as Trumps, in Theories of Rights (J. Waldron ed., 1984).Google Scholar

42 See Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (1991).Google Scholar

43 See Guastini, Riccardo, La Sintassi del Diritto 32–33 (G. Giappichelli ed., 2011).Google Scholar

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46 It is interesting to notice that legal theory often assumes that judicial practice is, descriptively, geared towards truth or an equivalent ideal, such as integrity. This understanding seems to be at odds with actual judicial and lawyering practices, especially in common law countries, given its adversarial conception of legal process. See, e.g., Robert A. Kagan, Globalization and Legal Change: The “Americanization” of European Law?, 1 Reg. & Governance 99 (2007); Dennis Patterson, Law and Truth (1999).Google Scholar

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51 Notice that efficient breach is hard to justify even from an economic perspective since trust in the institution of contract could break down in the presence of pervasive uncertainty regarding contract performance.Google Scholar

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64 See Merryman, John Henry & Rogelio Pérez Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (2007); Scalise, supra note 52, at 755.Google Scholar

65 An altogether different issue is the fact that law and economics impregnates the logics of some of our legal institutions. For example, economic considerations are pervasive within the managerial discourse used to justify the move towards alternative dispute resolution mechanisms or plea-bargaining arrangements. See Ouroboros, supra note 32.Google Scholar

66 See Garoupa, Nuno, The Politicization of Kelsenian Constitutional Courts: Empirical Evidence, in Empirical Studies of Judicial Systems 149 (K. C. Huang ed., 2008).Google Scholar

67 This may help to explain Hirschl's empirical argument, according to which social rights adjudication fares much worse than liberal rights adjudication. And this is despite the fact that social rights are increasingly recognized in many constitutional orders. See generally Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007).Google Scholar

68 I know this is a controversial point, and it is not the purpose of the paper to articulate fully my views on the issue of the objectivity of law. Following Patterson's account, I maintain that any legal practitioner that is competent in the practice of law will know that some claims cannot be made. See generally Patterson, supra note 46.Google Scholar

69 See, e.g., Ward, Ian, Law and Literature: Possibilities and Perspectives (1995).Google Scholar

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71 I should make clear that it is not my intention to denigrate these legal theory schools. My own Ph.D. thesis and much of my research deals with abstract and philosophical (legal) sources, using poetic titles and inspiration from a range of different academic disciplines. I restate that my purpose in this article is twofold. First, it is time to acknowledge that most legal theory has little to offer legal practice. Second, legal theorists need to rise to the challenge of showing connections to legal practice as well as to justify their teaching of legal theory. Both claims have to be read in the context of teaching legal theory. I believe it should be up to each academic to decide what to research.Google Scholar

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75 A debate similar in content is taking place concerning the role of literature in ethics, a much less institutionalized and positivized practice than law. See Nussbaum, Martha C., Exactly and Responsibly: A Defense of Ethical Criticism, in Mapping the Ethical Turn: A Reader in Ethics, Culture, and Literary Theory 59 (T.F. Davis & K. Womack eds., 2001).Google Scholar

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88 I am oversimplifying things. Different jurisdictions work with distinct objects of constitutional review.Google Scholar

89 There is important variation among legal orders. For example, judicial review and rights-talk is not as prominent in some Scandinavian countries. See, e.g., Ran Hirschl, The Nordic Counternarrative: Democracy, Human Development, and Judicial Review, 9 Int'l J. Const. L. 449 (2011), http://icon.oxfordjournals.org/content/9/2/449.full.pdf.Google Scholar

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104 Recently, the European Commission announced the intention to have fifty percent of legal practitioners in the European Union attending European judicial training by 2020. See Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2011) 551 final (Sept. 13, 2011), http://ec.europa.eu/justice/criminal/files/2011-551-judicial-training_en.pdf.Google Scholar

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111 Id. at 10 (emphasis added).Google Scholar

112 Dawson, Mark, How Does the European Court of Justice Reason?: A Review Essay on the Legal Reasoning of the European Court of Justice, 20 Eur. L.J. 423 (2014).Google Scholar

113 For two recent exceptions, see Maxeiner, James R., Integrating Practical Trainng and Professional Legal Education, in The Internationalization of Law and Legal Education 37 (J. Klabbers & M. Sellers eds., 2009); Ulen, supra note 48. See also Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203 (1943). Notice that Ulen's argument and Lasswell & McDougal's argument are much more radical than mine, because they justify legal education on the basis of advances in legal science and a normative view of what lawyers should do, without necessarily relating it to the needs of actual legal practice.Google Scholar

114 For a similar assumption in the U.S., see generally Susan Echaore-Mcdavid, Career Opportunities in Law and the Legal Industry iv (2007).Google Scholar

115 I am not suggesting that these professions will crowd out classical legal careers but am calling attention to the fact that if the law degree educates students interested in a broad range of careers, then it should also become more responsive to changes in the skills required by such professions.Google Scholar

116 See Simon, , supra note 14, at 492–93. Regarding European law, see Flood, supra note 98, at 192 (discussing how lawyers often have to engage in “non-legal activities” such as lobbying in order to both influence law-making according to their clients' interest and be able to understand the point of view of European institutions on existing law).Google Scholar

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118 This gap justifies many critiques of EU competition law by economists who find, for instance, the pursuit of social justice or the political protection of small businesses and enterprises to be unjustified on efficiency grounds.Google Scholar

119 The link between careers and education allows me to evade a critique that can be made of Ulen. See Ulen, supra note 48. Let me remedy this omission. He argues that legal education needs to be more theoretical in order to catch up with the most recent developments in legal research. But this is a seriously biased argument that assumes that legal education and the faculty composition of law schools ought to follow developments, whichever they are, in legal science. In this way, legal education trains students irrespective of the demands of legal practice and thus, contra Ulen, the disjunction between education and practice may widen. Ulen's argument reveals two unjustified assumptions: (1) That law should be studied as an empirical science; and, (2) that practice should not necessarily co-determine university education. Ulen's thesis also omits the fact that most law professors of elite American law schools have little practical experience and little influence outside those universities. See Cappalli, Richard B., The Disappearance of Legal Method, 70 Temp. L. Rev. 393 (1997).Google Scholar

120 Cf. Susskind, Richard, The Future of Law: Facing the Challenges of Information Technology (1996) (suggesting the market for legal services is changing due to technology and pressure from other markets and forcing lawyers to start acquiring a whole new set of skills and functions), with Larry E. Ribstein, Practicing Theory: Legal Education for the Twenty-first Century, 96 Iowa L. Rev. 1649 (2011) (offering a more condensed account). These authors further the idea that legal practice and what counts as a legal professional is changing and this needs to be factored in legal education.Google Scholar

121 See Regulatory Impact Assessment: Towards Better Regulation? (Colin Kirkpatrick & David Parker eds., 2007).Google Scholar

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123 See Viscusi, W. Kip, The New Cigarette Paternalism, 25 Reg. 58, 62 (2002), http://object.cato.org/sites/cato.org/files/serials/files/regulation/2005/12/v25n4-13.pdf.Google Scholar

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125 See Halpin, Andrew, Law, Theory, and Practice: Conflicting Perspectives?, 7 Int'l J. Leg. Prof. 205, 218 (2001).Google Scholar

126 It is important to dispel the idea that academics do not need to justify what they do. See, e.g., Stefan Collini, What are Universities For? (2012) (arguing in favor of humanities or non-technical education in universities). See also Ribstein, supra note 9, at 1651 (suggesting that legal academics have been very successful in teaching what they choose).Google Scholar

127 See Ulen, , supra note 48, at 326.Google Scholar

128 See Hand, Learned, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, 24 Mich. L. Rev. 466 (1926).Google Scholar

129 See Flores, , supra note 79, at 131.Google Scholar

130 See, e.g., Latour, Bruno, The Making of the Law: An Ethnography of the Conseil d' État (2010).Google Scholar

131 See Toulmin, Stephen et al., An Introduction to Reasoning (1984); Neil MacCormick, Rhetoric and the Rule of Law (2005). For a philosophical articulation of the view that knowing the law consists in following the forms of argument recognized in the practice of law, see Patterson, supra note 18.Google Scholar

132 Joined Cases C-402/05 P & C-415/05 P, Yassin Abdullah Kadi & Al Barakaat Int'l Found. v. Council & Commission, 2008 E.C.R. I-6351.Google Scholar

133 Varga, , supra note 3, at 170.Google Scholar

134 See Cavalla, Francesco, La Verità Dimenticata Attualità dei Presocratici Dopo La Secolarizzazione (1996).Google Scholar

135 See, e.g., Cotterrell, , supra note 3, at 182.Google Scholar

136 See Williams, Bernard, Ethics and the Limits of Philosophy (2006).Google Scholar