Brian L. Frye1
What is Called Legal Scholarship?
Two margarines on the go, it’s a nightmare scenario.2
We learn what it means to do legal scholarship by trying to do legal scholarship. But in order to do legal scholarship, we must learn how to do legal scholarship. So, by trying to do legal scholarship, we recognize that we don’t yet know how to do legal scholarship. What a conundrum!
Fortunately, lawyers do law, and therefore can do legal scholarship, if they learn how. But not all lawyers are capable of learning how to do legal scholarship. Legal scholars are as legal scholars do, and many potential legal scholars are stymied by their disinclination to do legal scholarship. Some lawyers are interested in legal scholarship, but uninterested in doing legal scholarship. Others try to do legal scholarship by doing law, which may itself be valuable, but is not legal scholarship.
And yet, the reason most lawyers don’t do legal scholarship isn’t because they are incapable of doing legal scholarship. Yes, lawyers haven’t turned toward legal scholarship, in order to reflect on the nature of their profession and its social role. But also, legal scholarship has long since turned away from the law. Indeed, legal scholarship has always turned away from the law. Even as lawyers attempt to do legal scholarship, it withdraws from them and the law, frustrating their efforts by eluding their grasp.
Law is the science of predicting how institutions will resolve disputes.3 To be sure, the law asks why institutions resolve disputes in one way, rather than another, and whether the predicted resolution is socially desirable. But legal scholarship isn’t a science. It doesn’t ask what will happen, but what could happen. Or rather, it asks what can be disputed, why disputes are resolved, and who determines social desirability.
In other words, legal scholarship rejects the premises of the law. A legal scholar is a lawyer who is freed from the burden of the law.4 Accordingly, lawyers can learn to do legal scholarship only by unlearning the law. They become lawyers by coming to know the law, and they can only become legal scholars by coming to forget the law. As legal scholarship withdraws from the law, so too must legal scholars withdraw in its wake. And in so doing, they point to what legal scholarship is becoming.
As erstwhile lawyers withdraw toward legal scholarship, they point to another path of the law. As Robert Frost observed in one of his poems:
Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.5
Surely, Frost’s path was memory, the source of all law, and the path from which our law diverges. The law has existed since time immemorial, but is remade in every argument and decision. The genius of the law is to make everything old, new again. But legal scholarship is recalcitrant. It is a river that flows backward to its source, making everything new, old again. Its genius is to ask us to reconsider ideas we have rejected or ignored, by framing them as obligations. After all, the law only ever exists in our collective imagination. People have always imagined laws that reflect their dream of the past.6 Legal scholars abandon dreams of the past for dreams of the future. And in so doing, they encourage us to dream along with them. The dream of the 1790s is alive in legal scholarship.
In any case, learning how to do legal scholarship is hard. The way back to the past is a difficult path, with many obstacles. If legal scholars wish to make any progress, they must leap over them, lest they be impeded by trivialities. As a great philosopher once observed, “Hic Rhodus, hic salta!”7 A leap in logic should be thrilling, not confounding. Or rather, legal scholarship should always be confounding, in order to prepare its consumers for new ideas. We leap, hoping to inspire others to leap as well.
Of course, many will complain that legal scholarship should abandon these peculiar ambitions and resign itself to describing the law as it is, rather than as it might be. They fear that legal scholarship will lose itself in dreams and absent-mindedly sever its connection to the science of law. Even worse, they fear that legal scholarship may ultimately reject the law, or even disparage the principles that animate the law.
These fears are unfounded. Yes, the purpose of legal scholarship is to reject the law. And yet, it rejects the law only by looking past the law. Legal scholarship is not ideological. But it transcends ideology by addressing only the laws, institutions, social practices, and ideas it imagines, rather than those which actually exist. The law-in-practice is but a pale shadow of the law-in-theory, because legal scholarship abandons the prosaic reality of the law for its glorious potentiality.
This misconception is illustrated by the way that law schools teach law and conceptualize legal scholarship. We teach the law as it is and as it is practiced, as opposed to the law as it might be and might be practiced. Or rather, we teach our students to do law, and then lament their indifference to legal scholarship, even as we ourselves struggle to learn how to do legal scholarship.
Remember, even learning how to do something is no guarantee of success in actually doing it. If we teach our students to put their feet on the ground, then it should be unsurprising that their heads aren’t in the clouds. But they stand in a fog of the law that surrounds and prevents them from seeing the law itself. The essence of legal scholarship is dispersing the fog, in order to perceive the reef on which the enterprise might founder.
Perhaps legal scholars should emulate cabinetmakers, who learn from the past how to create in the future. For centuries, people have studied the craft of cabinetmaking, which comprises the accumulated knowledge of countless cabinetmakers, distilled into physical form. Every cabinet is an expression of the craft it embodies, and speaks for all of the artisans whose voices it distills, albeit some more eloquently than others. Of course, much the same is true of a quilt, which often incorporates not only the social knowledge of a craft, but also physical remnants of a community.
In other words, craft humanizes technology, by transforming it into knowledge of ourselves. So too might legal scholarship humanize the law. Just as craft silently speaks for a multitude of artisans, legal scholarship may silently speak for everyone, for the Law is our first handiwork, which enables all the others.
But we no longer care for craft. Or rather, we admire, but no longer understand it. An artisan abhors the facsimile of handicraft, which purports to speak for history, but sounds only in gibberish. And yet, for those who have forgotten the language of craft, all is nonsense, and the silent voices of its artisans are truly stilled. Likewise with the silent language of the Law, which alone can inspire legal scholarship. In order to learn how to speak, we must learn how to listen.
Aspiring to do legal scholarship, we stand before the Law and petition for admission into the Cathedral, so that we may someday stand above the Law, and judge it as it judges us. Perhaps it is not for us to do legal scholarship, but surely we can aspire. And when we inevitably fail, we do so knowing there was a vision of legal scholarship that existed for us and us alone, even if we never quite saw it clearly, even if we were never sure we wanted to see it.
1. Spears-Gilbert Professor of Law, University of Kentucky College of Law.
2. Graham Fellows, Two Margarines (2008).
3. Oliver Wendell Holmes, Jr., The Path of the Law (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).
4. Martin Luther, The Life of Martin Luther (ed. Jules Michelet 1846) (“This is the reason that the body must remain upon Earth, to bear the burden of the law, but the soul ascends to the mountain.”).
5. Robert Frost, The Road Not Taken (1913).
6. Area Man Passionate Defender Of What He Imagines Constitution To Be, The Onion, Nov. 14, 2009, https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149
7. Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (1852).