We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.
In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive propositions about the law, normative claims about what the law ought to be, and exhortations to decisionmakers to change the law are but examples of the variety of forms that appear in scholarly writing about the law. My initial task in this article is to work out some important distinctions among these verbal forms. Those distinctions generate a framework that I then use to make two more adventurous claims. I claim first that we can usefully distinguish between two modes of legal thought, which I shall call "committed argument" and "detached observation"; and further, that whether we engage exclusively in one form of legal scholarship or another depends on our implicit assumptions about the nature of law. With these bolder theses defended, I then analyze how scholars can and do make persuasive claims in the mode of committed argument.
Criminal Law | Judges | Law | Rule of Law
Center for Law and Philosophy
Center on Global Governance
George P. Fletcher,
Two Modes of Legal Thought Symposium on Legal Scholarship: Its Nature and Purposes,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/244