Legal Doctrinal Scholarship and Interdisciplinary Engagement

Abstract

The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship.

The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.

Introduction

It is fair to assume that there is significant methodological uncertainty around the very character of legal doctrinal scholarship. It sometimes manifests itself in a sense of crisis among legal scholars. Even though it is not particularly difficult to account for the characteristic activities of doctrinal scholars, it is much less obvious what qualifies their ‘doctrinal’ research as genuine, creditable scholarship. The sense of uncertainty within legal scholarship is often matched by a lack of understanding of its character on the part of other disciplines. Memorably, in Becher and Trowler’s seminal analysis on the culture of disciplines, legal scholarship is depicted as a ‘soft applied science’, and it is made to look quite marginal on the academic landscape. 

I believe that addressing the tensions around legal scholarship is one of the exciting challenges for contemporary legal theory. The present analysis uses the resources of legal theoretical reflection to address issues about the disciplinary character of legal scholarship. I hope to be able to shine some light on the specific epistemological merits of a doctrinal discipline about law. I am not one of those who seek a way of putting to rest the uncomfortable methodological challenges by reimagining legal scholarship – often by giving up on its doctrinal orientation.

The reasons why this crisis of identity and a sense of marginalisation plague legal scholarship are, of course, multifarious. Some of them are related to the gradual shift of the academic landscape in the nineteenth and twentieth centuries (and the emergence of the modern social sciences in particular) that was rather unfavourable for legal scholarship. One may even make the case for the view that we have seen the emergence of an imagery of disciplinarity (that revolves around processing facts, developing general theories, and testing hypotheses) that is not quite fitting for legal scholarship. Some further reasons may be related to the disciplinary culture of legal scholarship. In a discipline where the scholars often see themselves as ‘academic lawyers’ (rather than academics per se), there is no obvious place for deeper methodological reflection and explicit methodological controversies on the disciplinary character of law. It is no surprise that this may make adaptation to a changing social and academic environment slow, halting and disorienting.

This suggests that addressing the issues of disciplinary character and practice of legal scholarship requires us to raise deeper and broader questions – some of which go beyond the scope of this analysis. I do not deal here with issues of disciplinary culture in any detail, and I do not set out to develop a concept of disciplinarity that is more fitting for legal scholarship – even though I acknowledge that some of my claims are in need of validation from a broader and more ambitious investigation into the nature of legal scholarship. What I can undertake here is an aspect of understanding better the character of legal doctrinal scholarship as it is practised today. I reflect on the problems of interdisciplinary engagement in legal scholarship. I find them particularly revealing about the character of legal scholarship.

I specifically look at interdisciplinary engagement from the perspective of legal scholarship. I do not ask how engagement with legal scholarship might benefit other disciplines. I ask what may make interdisciplinary engagement necessary for legal scholars in certain situations. Nor do I explore the specific dynamics of interdisciplinary cooperation (e.g. in the context of particular research projects). What I am more interested in is the necessity for legal scholars of building some competence in other disciplinary perspectives. What makes it necessary for legal scholars to understand what related disciplines have to say about a particular epistemic object and to try to solve the methodological puzzle of accommodating in their work what they learn from other disciplines?

It is important to emphasise that my analysis is rooted in a particular conception of legal doctrinal scholarship that I have developed elsewhere and keep developing. It confers on legal scholarship the function of cultivating doctrinal knowledge about law. This conception profoundly determines the way I perceive the problem of interdisciplinary engagement in legal scholarship. However, I can provide only a brief (and slightly underreflected) overview of this account here. (The next section will be dedicated to it.) I leave many implications of the salient features of legal scholarship on one side (e.g. I do not reflect on the, otherwise hugely important, functional connection with the legal profession and legal education). This paper can only have a narrow focus and relatively limited ambitions.

As to the substantive points of the paper, I argue that we can identify a distinctive rationale for interdisciplinary engagement in legal scholarship. Due to certain features of law (that I address below and especially in the fourth section), cultivating doctrinal knowledge about law requires legal scholars to work with concepts and ideas that cannot be made fully intelligible through mere normative legal analysis. Also, doctrinal knowledge exists in a state of permanent renewal due to the extralegal information flowing into legal procedures and policy debates. In a very real sense, interdisciplinary engagement becomes a vital aspect of maintaining and improving the ability of legal scholarship to cultivate doctrinal knowledge. However, it does not mean that there is one general pattern to the methodological challenge interdisciplinary engagement poses. I believe that it is more appropriate to think of interdisciplinary engagement in terms of a series of paradigms that originate from particular (but recurrent) methodological challenges facing legal scholars and that are related to different aspects of the work legal scholars do. I do not set out to identify all such paradigms. I will explore below three of them. It seems to me that they are the ones we need to elucidate and substantiate the points I formulate about the legal scholarship.

I have mentioned above that I do not seek to overcome the methodological uncertainties by reimagining legal scholarship. In an important sense, the present analysis is part of a broader argument about the way legal scholarship can become more assured about its disciplinary identity. Even though there is a very real sense of uncertainty about its role and character, legal scholarship has also shown remarkable resilience and staying power. Occasional attempts to reconstitute it on the model of, say, the social sciences were frustrated time and again. It may be a sign of the viability of a doctrinal discipline about law. I am convinced that once we subject the epistemological profile of legal scholarship to more thorough theoretical scrutiny, we find there a methodological paradigm that must be an integral part of the academic landscape. There are epistemic gains to be realised by doctrinal scholarship that are ripe for academic study and that are not accessible to other disciplines. Raising questions about interdisciplinary engagement in legal scholarship is one of the pathways towards that more thorough theoretical scrutiny.

Even though it is part of my ambitions to raise the profile of existing legal scholarship, it does not mean that I advocate the sort of conservatism about the practice of legal scholarship that would leave everything as it is. Even though legal scholarship is built on an eminently viable epistemological paradigm (that I will outline in section three), currently it is not in the best shape to fulfil its potentials. Significant changes to the practice of legal scholarship are inevitable (and, probably, they are already happening8 ). In order for legal scholarship to be able to preserve its doctrinal orientation, and to keep its practices continuous with its proud historical legacy, it must become more self-conscious about the potentials and limitations of doctrinal disciplinarity.

More clarity about the rationale and paradigms of interdisciplinary engagement can be helpful in exactly this respect. It is a good bet that interdisciplinary engagement will become ever more important for legal scholarship, and it will keep shaping the everyday practice of legal scholarship. Currently, the growing practice of interdisciplinary legal scholarship offers the best chance to break the culture of insularity that has been a feature of legal scholarship in many countries (and a damaging feature at that). Legal scholars are often guided by an intuitive sense that their scholarship is essentially different to the works of philosophers, social scientists, or other scholars.

As I argue below, there is indeed something very specific about legal scholarship. But it is not and never has been a justification for a culture of insularity – for thinking that legal scholars can benefit little from other disciplines. In fact, the sense of the distinctiveness of legal scholarship can underlie a healthy disciplinary identity only if it is asserted, justified, and adequately articulated. Interdisciplinary engagement constitutes a discursive field where that might happen. In that sense, more interdisciplinary engagement actually strengthens the identity of legal scholarship as a doctrinal discipline. It is built into the very conceptual dynamics of interdisciplinary engagements that it brings into sharp relief the methodological integrity of participating disciplines. As it is engagement between disciplines, it is premised on acknowledging ineradicable differences in disciplinary character and methodological profile.

I have mentioned above that I trace some features of legal scholarship to certain characteristics of law. In order to put the claims I make in that respect into perspective, it may be helpful to highlight here (before we start the more detailed analysis) that I operate with a couple of simplifying assumptions about law. I admit that they are open to contestation. But they are fitting for my characterisation of legal scholarship, and I regard them as defensible. First, the law is a normative and institutional social practice that seeks to guide behaviour. It does that primarily by authoritatively fixing norms (that can be formulated in terms of the rights and obligations of recognised agents). The law is implemented in procedures that facilitate argumentative engagement. Secondly, the law is open to deliberate changes. In fact, it has institutional procedures to bring about deliberate (even planned) modifications of its normative material.

Those procedures attract extensive deliberation about institutional design. The ability to engage in debates on institutional design is an important aspect of advanced legal competence. These two assumptions have an implication that profoundly shapes my account of doctrinal scholarship: the legal practice generates fields (or arenas) of contestation. And it does that on two basic levels. The first is the contestation on the practical implications of the normative material. The law is open to interpretation: it accommodates differences of opinion and functions in the face of ineradicable disagreement. The second level is contestation on the ways in which the law could be changed for the better. Naturally, the two levels of contestation affect each other in many ways – creating dialectical tensions in the legal competence of lawyers, as well as legal scholars.

The Character of Legal Doctrinal Scholarship

As I have indicated above, my arguments are rooted in a particular conception of legal doctrinal scholarship. It confers on legal scholarship the function of cultivating doctrinal knowledge about law. As the point about legal scholarship and doctrinal knowledge is potentially the most controversial aspect of my theoretical position, I need to embed it in an epistemological clarification of doctrinal knowledge and anchor it in account of the practice of legal scholarship.

I do not think it is particularly difficult to provide an abstract account of the characteristic activities of doctrinal scholars. Most obviously, they engage with the current law. They develop and maintain a systemic perspective on existing normative materials and legal developments. Legal scholars work from conceptions on how the elements of the law fit together in their respective fields, and this qualifies them for assessing whether current developments can be reconciled with the given normative structures of law. The systemic perspective on the law also enables legal scholars to reorder and ‘remap’ the doctrinal structures of law when facing sweeping changes to legal materials (as a result of major legislative reforms or groundbreaking judicial decisions). It is similarly clear that legal scholars exercise a sort of quality control over judicial reasoning as it is manifested in upper court practice. Perhaps a bit less obviously, they also address contested matters on the exact normative scope of legal materials. 

These characteristic activities may cover most of what legal scholars do, but we should not forget that legal scholars also characteristically engage with issues of institutional design. It is not just that the assessment of the upsides and downsides of the existing law can culminate in reform proposals. Increasingly, contemporary legal scholarship is filling with policy content, and legal scholars often position themselves as experts on certain policy matters (energy policy, environmental policy, etc.). It is not that they claim doctrinal, as well as policy expertise. The two are intertwined because doctrinal plausibility is a vital factor in assessing the feasibility of policies in an institutional environment. Legal scholars may be the ones best qualified to figure out which policies (and by what legal strategies) can be written into law15 and also to figure out how the prospects of policies are affected by institutional decisions (like a court ruling).

 I believe that these activities can be usefully understood as manifestations of the epistemological profile of a distinctive disciplinary perspective. They hint at the methodological characteristics of a normative and interpretive discipline that looks at legal practices from a strong internalist point of view. Let me explain briefly the constitutive elements of this claim.

Legal scholarship is explicitly normative (as opposed to having a hidden normative agenda – which is often the case with some sociological and anthropological research. It is not simply that legal scholarship deals with the normative aspects of a social practice. More importantly, it makes an explicit commitment to maintain the practice in its integrity and rationality. Without this, it could not take on the role of exercising quality control over judicial reasoning – it could not claim to offer an insider look on legal developments and challenges. It is this ‘insider perspective’ that I point to when characterising legal scholarship as internalist. Actually, one of the key features of legal scholarship is the way its normative character and internalism come to be closely intertwined. 

Legal scholarship does not simply engage with given institutional practices: it internalises their value assumptions. More specifically, a valueladen assumption about legal practices is constitutive of the perspective of legal scholarship: it is an improvement on the normative structures of social life and the institutional procedures of governance that they are permeated by legal norms. The authority manifested in the legal materials commands (and warrants) respect. Or, to put it in more abstract terms, ‘legality’ (that is, the ideal of the ‘rule of law’ as manifested in legal practices) is an attractive value with great social and political importance.

We can also glean from the characteristic activities of legal scholars that legal scholarship is interpretive in character. It means, first of all, that legal scholarship always remains practice specific. Legal scholarship construes the normative materials as positive law – as opposed to a repository of abstract political or moral principles that have independent normative force regardless of acts of enactment. An understanding of the normative implications of the practice, the competence criteria for participation, and the feasible ways of improving the given practice all develop from interpretive engagements with the positive law. Uniquely among disciplines, legal scholarship does not treat the law as the mere object of scholarly reflection: the normative content of the law also provides the conceptual framework that one must rely on to make sense of the legal practice. In fact, without an epistemologically plausible idea of ‘positive law’, we could not even make sense of legal scholarship. All epistemic gains legal scholarship offers are premised on knowing what the law is. At the end of the day, its epistemic gains are meaningful only for those who know the law or want to know the law as it has been laid down by authorities.

I note that the way interpretivism plays out in legal scholarship is crucial to understanding its distinctive character. Interpretive engagement with normative materials is common in other disciplines as well – most obviously in history. Interpretive engagement combined with explicit practical concerns can also be characteristic of applied ethics (e.g. bioethics). The distinctive feature is that the interpretivism of legal scholarship revolves around the authority attributed to canonical normative texts (i.e. positive law). In this respect, the only other discipline on par with legal scholarship in terms of its methodological features is theology (when it attributes the authority of the ‘sacred’ to certain texts). Perhaps, we can make these points clearer by drawing a few more explicit contrasts with other disciplines.

Legal scholarship is unlike political and moral philosophy: the latter is explicitly normative but not practice specific and interpretive in their truth claims. Much of the practice of the social sciences is interpretive (e.g. social anthropology), but, unlike legal scholarship, it is not explicitly normative. Some disciplinary perspectives are normative and offer ways of interpreting the normative material but still remain characteristically different from legal scholarship. For example, the economic analysis of law (that has the methodological profile of economics) has a normative agenda, but it is imposed on law – not revealed from it by way of interpretive engagement with positive law. It interprets the law from a fundamentally extralegal normative perspective. As a result, it offers a thoroughly instrumental perspective on law that sits uneasily with the epistemological profile of legal doctrinal scholarship.

Doctrinal Knowledge and Doctrinal Scholarship

Of course, this is still not enough as an account of the character of legal scholarship. We still miss something essential if we remain on the level of a formal characterisation of a normative and interpretive discipline. We need to see the distinctive a point to building an academic discipline that takes this interpretive and normative approach to legal practices. As I have indicated, my way of making sense of these characteristics is to say that legal scholarship has the function of cultivating doctrinal knowledge. Without asking a few questions about doctrinal knowledge, my account of legal scholarship would remain partly unintelligible.

In my understanding, doctrinal knowledge grows in and around normative social practices (like the different incarnations of law or religious practices), and it is specifically focused on their normative aspects. Mastering doctrinal knowledge presupposes the familiarity with the norms of the given practice (‘knowing what the rules are’), but this is not what determines its character. Doctrinal knowledge builds competence about the justificatory implications of the normative terms of participation. In principle, one can recite each norm of the practice and can still be incompetent in this specific sense. Gaining doctrinal knowledge enables one to align one’s actions and practical judgments with the normative content of the given practice – to get clear on what it takes to act and reason without subverting its integrity.

It helps figure out how far one can go without falling foul of the normative terms of participation. In other words, it is knowledge fit into the normative parameters for social practices. Importantly, it means the doctrinal knowledge ‘internalises’ the viewpoint of the committed participants of the practice. Doctrinal knowledge is premised on the acceptance of normative guidance from the relevant practice. Doctrinal knowledge is particularly important for those who seek to gain competence in navigating fields of contestation within normative practices. Doctrinal knowledge enables them to figure out what is compatible with fidelity to the given practice – what can be done and said without running the risk of becoming an outsider.

A crucial implication of all this is that what mastering doctrinal knowledge facilitates is not improved compliance (and definitely not blind obedience) but the ability to negotiate one’s options in a normatively constructed social environment. In other words, doctrinal knowledge thrives on contestation. In fact, doctrinal knowledge comes into its own when the normative assessment of situations is opened up for contestation within the practice itself – that is, when the complexity of the practice leaves room for significant interpretative disagreement. At first glance, this point may seem to be in tension with the commitment to maintaining the given practice in its integrity (that I have emphasised above). But it is actually the shared commitment that makes intense contestation among the participants possible without the disintegration of the given practice. It is more accurate to say that doctrinal knowledge thrives on contestation that remains internal to particular normative practices.

A further implication of this inherent connection with contestation is that doctrinal knowledge is premised on taking a perspective on social practices that makes them appear as dynamic and contingent constructions continuously shaped by human efforts – by what participants do about them and think of them. Doctrinal knowledge, by generating an awareness of interpretive variability, internal tensions, and patterns of contestation, facilitates ‘active agency’ both among the addressees of the norms of the given practice and, in the case of formally institutionalised practices, the officials. Within the bounds of fidelity to the given practices, doctrinal knowledge brings about creative engagement with practice-related normative materials.

Crucially for my analysis, these observations suggest that the character-defining features of legal scholarship (that I have listed in the precious section) are actually rooted in the epistemological profile of doctrinal knowledge. (1) Doctrinal knowledge is practice oriented: it is born out of engagement with the normative aspects of social practices. (2) Doctrinal knowledge perceives practices as contingent, man-made, and subject to change. It understands social practices as inherently precarious: they would not survive without the commitment and contribution of its participants. (3) Doctrinal knowledge is practice specific and interpretative: it takes an internal point of view to actual, historically contingent practices and is limited to those practices in its truth claims. (4) Doctrinal knowledge is normative and not simply because its objects are norms and their justificatory implications but mainly because it is adjusted to a practical orientation: accepting normative guidance from the given practice32 and being committed to maintaining it in its integrity. (5) And, finally, doctrinal knowledge is noninstrumental about the practice it is related to.

Due to its special significance, we need to say more about this final point on noninstrumentalism. I have claimed that doctrinal knowledge answers to the epistemic needs of those who accept normative guidance from the practice. This is the point that needs some elaboration to get a grip on the noninstrumentalist character of both doctrinal knowledge and legal scholarship. In the sense relevant for us here, accepting normative guidance does not simply mean that one factors in the norms of a social practice in practical deliberations. It is actually a manifestation of a specific mode of participation. Engaging with the practice is never simply about how to use its normative materials and institutional structures to one’s subjective ends. Doctrinal knowledge is generated in the process of not simply learning about the practice but also learning from the practice. Its epistemic merits are conditional on accepting that the practice has a value content that one can access only through participation and that the practice engages with what a committed participant can regard as appropriate practical objectives and the appropriate ways of pursuing them. In that sense, one of the very functions of doctrinal knowledge is to shape one’s perspective on social life – one’s moral and political outlook.

The way doctrinal knowledge takes on a noninstrumental character helps us understand better the close connection between the internalist (practice related and practice oriented) and interpretivist features of doctrinal knowledge, as well as doctrinal scholarship. The mere challenge of making sense of social practices by way of interpretive engagement with their normative materials does not make it necessary that one takes a strong internal point of view to them. It becomes necessary only in light of the commitment to maintaining the given practice in its integrity. And the epistemological justification for that commitment lies in the conviction that a noninstrumentalist perspective on the given practice promises specific epistemic gains. It is this promise of specific epistemic gains (on values with major social significance) that underlies the disciplinary character of legal scholarship. This is how it can offer knowledge that other disciplinary perspectives do not have access to.

The Paradigms of Interdisciplinary Engagement

It is time to test whether these considerations about doctrinal knowledge and the character of legal scholarship will help us understand better why and how interdisciplinary engagement makes sense for legal scholars. Above, I distinguished between two aspects of the practice of legal scholarship: dealing with the existing legal materials and engagement with challenges of institutional design. The two remain analytically distinguishable, but they interact with each other in important ways. It seems to me that legal scholarship of any notable quality is very much characterised by the shuffling between the multifarious analysis of given normative materials and addressing issues of institutional design.

Engaging with institutional design facilitates creative approaches to the systemic aspects of existing law. It brings home the point that the normative elements of law are (to a varying extent) contingent. And the challenge of reforming the law again and again raises stark questions for legal scholarship about the ways of protecting the integrity, coherence, and rationality of the law. Also, the concern with institutional design brings into focus the complicated relationship between the normative implications of the existing law and considerations of public policy. If we want to understand the problem of interdisciplinary engagement in legal scholarship better, we need to be able to associate its manifestations to these two aspects of the practice of legal scholarship.

I have indicated above that I do not set out to provide a complete theory of interdisciplinary interaction for legal scholarship. Instead, I identify a few paradigms of interdisciplinary engagement for legal scholarship in order to explore the implications of my account of doctrinal scholarship and doctrinal knowledge. Nor do I go into analysing the exact typology of interdisciplinary methods that legal scholars may apply. Taekema and van Klink have already offered a useful analysis of interdisciplinary methods that I do not wish to second guess here. I hope that my analysis will remain largely compatible with theirs, and I can shift the focus to what makes interdisciplinary engagement necessary (and beneficial for legal scholarship) in certain contexts.

I have also pointed out above that, even though interdisciplinary engagement in legal scholarship has broad methodological varieties, it still has a distinctive rationale (that is due to certain features of law). It is important to elaborate on this point before we turn to the paradigms of interdisciplinary engagement. It will help us understand better what links the three paradigms I address and what distinguishes them.

As to the distinctive rationale of interdisciplinary engagement, it needs to be linked to the very function of legal scholarship: cultivating doctrinal knowledge. What we need to keep in mind is that the challenge of cultivating doctrinal knowledge about law is complicated by the fact that the law operates with concepts and principles that cannot always be made fully intelligible through normative analysis that remains internal to given legal practices. There is a constant flow of extra-legal information into legal procedures and practice-related policy debates that has a pervasive impact on how the normative materials of law turn out. The law is not just a system of action-guiding norms but a framework for deliberation and public justification as well, and, even when it develops artificial categories (like ‘legal causation’ and ‘remoteness of damage’), the justifications it provides for practical judgements must remain intelligible for its addressees.

The law has its own internal value structures, but they interact with a large amount o