Bryant Garth and Yves M. Dezalay on Legal Theory, Strategies of Learned Production, and Learned Law

Bryant Garth, University of California, Irvine, Southwestern Law School, and American Bar Foundation, and Yves M. Dezaley, French National Center for Scientific Research (CNRS), are publishing 'Legal Theory,' Strategies of Learned Production, and the Relatively Weak Autonomy of the Subfield of Learned Law in In Search of Contemporary Legal Thought (Justin Desautels-Stein and Christopher Tomlins, eds., Cambridge University Press), Forthcoming). Here is the abstract.

This chapter focuses on the relationship between learned or scholarly law and economic and political power. It begins by introducing Pierre Bourdieu’s writings on the role of law and legal theories, which provide a general sociological framework, and then it draws on that approach to examine the role of learned law in the United States. The first part examines a key period in the genesis of the U.S. legal field and its hierarchies -- the outsourcing of the reproduction of lawyers and the compilation of legal knowledge to the law schools late in the nineteenth century. Law professors and their theories were quite marginal in the US legal field at that time. The second part examines the Legal Realist “coup” of the law professors against the dominance of the elite judges and corporate lawyers in the 1930s. The third part discusses similar challenges to the place of elite lawyers and judges in the 1960s from the left and more recently from the right. In each case, we show that legal academics and their theories are part of a larger story of adaptation and relegitimation of the enduring hierarchies of the U.S. legal field. A major theme, which these histories make clear, is the relatively weak autonomy of the field of learned law in the United States. Within this larger story, however, we point out the factors that created what looks in retrospect like a “golden age” of academic theory in the 1980s.

Download the essay from SSRN at the link.

Categorizing Approaches To Law and Culture

Menachem Mautner, Buchmann Faculty of Law, Tel Aviv University, has published Three Approaches to Law and Culture at 96 Cornell Law Review 839 (2011). Here is the abstract.

This article discusses three major approaches connecting culture to law. The first is the historical school that arose in German jurisprudence in the first half of the nineteenth century. It views law as a product of a nation’s culture and as embedded in the daily practices of its people. The second approach is the constitutive approach that developed in American jurisprudence in the 1980s. This approach views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations. The third approach, found in twentieth-century Anglo-American jurisprudence, views the law that the courts create and apply as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. The writings of Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish are discussed. Beyond these three approaches the article points out nine additional approaches in legal scholarship concerning the relationship between law and culture. This mapping is tentative. It is hoped, however, that it gives readers a preliminary idea of the widespread use of the concept of culture in the law and that it invites further reflection on other possible ways to employ the concept of culture in legal scholarship for a richer understanding of the legal phenomenon.

The full text is not available from SSRN.