Thinking About Law

Hanoch Dagan, Tel Aviv University Buchmann Faculty of Law, has published Law as an Academic Discipline. Here is the abstract.

Is law an autonomous academic discipline, distinct and isolated from neighboring fields? Or is it merely an object of academic research that borrows its conceptual framework from the humanities or the social sciences? The choice between these two alternatives — and a possible third, middle position — is important both in itself and as the foundation of a critical analysis of specific institutional arrangements concerning such issues as professional associations, specialized journals, and, most notably, advanced legal education. This essay investigates the two extreme alternatives of autonomy and assimilation, and offers a preliminary account of a midway position, claiming that relevant lessons from the social sciences and the humanities are always potentially relevant to law but never exhaust the theoretical inquiry of it.
Past as well as current theories of law’s autonomy do not fully account for the necessary extra-doctrinal underpinnings of legal materials, nor do they sufficiently appreciate the justificatory burden entailed by the prospective effects of every significant legal pronouncement. These shortcomings, however, do not imply the collapse of law as an academic enterprise robust enough to justify a separate category. Using the theories and methods of other disciplines definitely enriches our understanding of law, but these helpful exercises never suffice because they do not pay appropriate attention to the nature of law as a set of coercive normative institutions and, furthermore, tend to fragment rather than synthesize the interdisciplinary lessons of law. Legal theory compensates for both these limitations by focusing on the work of society’s coercive normative institutions and through its synthetic character.
Legal theory studies the traditions of these institutions and the craft typical of their members, while continuously challenging their outputs by demonstrating their contingency and testing their desirability. When performing these tasks, legal theory necessarily resorts to law’s neighboring disciplines. At its best, however, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because legal theory is consciously reflective on persistent jurisprudential questions regarding the nature of law, notably the relationship between law’s normativity and its coerciveness, given law’s institutional and structural characteristics.

Download the paper from SSRN at the link.