Thursday, December 15, 2005

I Think I'm Going to Shut My Piehole for A While

I've been enjoying our ongoing discussion on OOTJ; I hope you have too. But looking back over some of my comments and postings, I feel they may have been overly terse and brusque, so I hope nothing I've written has caused offense.

I've been thinking about your latest posting, and how to respond, or even if I should. The problem with a debate like this is that it can lead both parties to take more extreme positions than they normally would. I'm certainly feeling that tendency in myself. Maybe I should just refrain from responding for the weekend.

It is also striking me that Suffolk and UB are very different schools--well, UB is different, anyway. In the last few weeks we've been bringing in a series of faculty candidates, most of whom are immersed in various kinds of interdisciplinary scholarship, and I've been participating in all of the interviews and job talks. In that context, the traditional, doctrinal view of law expressed in the article you quoted seems really remote from what we're doing here, and from the sort of research and teaching we support.

Take a look at the Call for Participation for the 2006 Law and Society Association conference (a lot of our faculty are very active in LSA, and several have been president of the association):

In the spirit of the Law and Society Association’s long tradition of research into unsettled and unsettling issues, the 2006 meeting’s theme poses many profound questions regarding challenges facing the rule of law early in the twenty-first century. We highlight in particular the following observations and puzzles.

First, as social life around the globe becomes ever more complex, multi-layered, and subject to multiple sources of authoritative ordering, the boundaries among and between different legal or extra-legal forms of governance have become more contested, volatile, and fragile. How are different forms of legal authority established, enforced, contested, and renegotiated? Where does the authority of one legal system or form of governance end and another prevail? Do inherited conceptions of “legal pluralism” suffice to make sense of the negotiated boundaries among legal orders?

Second, the global spread of Western legal norms, and especially those associated with the United States, seems to highlight law’s growing significance in contemporary life at the same time that the proliferation of profoundly different legal orders undermines any common view about the core elements of law itself. Have we come to the end of any coherent singular understanding about what the “rule of law” requires? Do new forms of capitalism, governance, etc. demand new models of law that we do not yet imagine?

Third, in many societies we witness political backlashes and retrenchment against the constraints of law’s rule. Overt attacks on courts, lawyers, legal processes, rights, and rules as well as more subtle departures from principles of law are evident around the world. At the same time, other elements or domains of law – especially the punitive and market-based terms of law – have been advanced with new vigor. How can we make sense of the simultaneous undermining of some forms or aspects of law and the strengthening of others? What is the role of neo-liberalism or resurgent authoritarianism in these processes? How do these changes reflect and express unequal power relations?

Fourth, the preceding questions about the conceptual and political constraints of law suggest yet other more general puzzles about the limitations or endpoints of law’s instrumental capacity to govern. What do legal forms, processes, and practices do well, and what to they accomplish poorly or less well than other forms of governance? What types of control or coordination are most and least effectively advanced through law?

Finally, these previous questions suggest yet another line of inquiry about laws end(s): What are law’s purposes? What normative ends does it serve? Whose ends? To what extent is law merely a means, a set of techniques that serve ends rather than define ends? How are commitments to (or against) law related to organizing logics of capitalism, democracy, authoritarianism, religion, or various versions of justice? By what standards should we assess the workings and impacts of law? Where do or should we stand in scrutinizing how, and for whom, law does or does not matter?

I think the debate you and I are having is about more than how to do or teach legal research: it's about the role of legal education and the nature and function of law--does law even have a "shape"? These are all questions that I think are interesting and important, but I don't feel qualified to debate them as deeply as they deserve. Not at 10:00pm, anyway.

Goodnight for now.

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