Document Type

Article

Publication Date

1989

Center/Program

Center for Law and Philosophy

Abstract

Many lawyers, both inside and outside the law schools, suffer from insecurity about our discipline. Instead of thinking of ourselves as the curators of a grand tradition in Western thought, many of us think of the law as a collection of doctrinal formulas and rules imposed on us by legislatures and the highest courts. We are always looking elsewhere to find a source of wisdom that will give the law coherence and meaning. At various times in this century we have looked to sociology, anthropology, psychoanalysis and, of course, economics in an effort to ground our ideas in firmer soil.1

All of this transplanting from other disciplines has been carried out in the name of "inter-disciplinary studies." But the studies in fact have never been inter-disciplinary. We have sought to learn from others, but we have never assumed that the law had much to offer our colleagues in neighboring disciplines. However much we had to teach psychoanalysts about crime and punishment, we have not insisted on it. We apply economic analysis in the law, but the economists have not been influenced the slightest by legal thought. Legal thought is at the service of the smartest outside bidder, or at least we have come to think. This general, self-abnegating assumption about the intrinsic value of legal studies is shared by everyone from the economists to the various wings of Critical Legal Studies.

The most common assumption of all, which is the most nourishing influence for law, is found in morality. If law is rooted in morality, it will flourish; if it comes disengaged from the nurturing source, it will wither into a hulk of arbitrary rules. This is the bias, more widely held than I would like to think, that moves me to write.

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