Jack Balkin & Sandy Levinson have posted Law and the Humanities: An Uneasy Relationship on SSRN. Here is the abstract:
In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.
No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.
Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.
And a bit more from the text:
An internalist approach to the disciplinary canon makes two claims. First, there is a set of arguments, approaches, skills, and forms of knowledge distinctive to law that one must master to discuss law competently, interpret legal documents, and resolve legal disputes. Second, these distinctive skills are more or less sufficient to decide legal questions. Until quite recently, the internalist view has been the traditional perspective of the American law school, whose faculty have tended to view themselves as judges manqué who (consciously or unconsciously) invite their students to play the role of the judge in talking and arguing about law.
An externalist approach to the disciplinary canon, by contrast, argues that discussions of law are incomplete without knowledge and skills from sciences, and the humanities. The moderate version of the externalist position is that all of these are necessary supplements to a serious study of law; a more extreme version would contend that they are sufficient, and that the “artificial reason of the law” that Coke celebrated obfuscates what is really going on in legal decisionmaking. For the radical externalist, legal decisionmaking is just a special form of ordinary political or moral decisionmaking, and hence it will be better performed to the extent that it can make use of those forms of knowledge that assist people in making political and moral decisions.
This is yet another important paper from Balkin and Levinson--who are certainly "on a roll."
Balkin and Levinson's invocation of the internal/external distinction is quite helpful, but there are other ways of looking at this issue. We might distinguish two models of the boundaries of legal discourse--the practice of law as it looks from inside. The first model, called the hermetic model, assumes that the boundaries of legal discourse are impervious or hermetically sealed. The second model, the holistic model, assumes that the boundaries of legal discourse are porous and that each realm of human discourse interacts with every other.
It seems obvious that the hermetic model does not provide an accurate description of legal practice from the internal point of view. After all, we are all familiar with economic and philosophical arguments making explicit appearances in ordinary legal discourse. Even legal formalists can accept that the boundaries of legal discourse are not hermetically sealed.
The holistic model places legal discourse in the same sphere of discourse as all other human discourses. Legal discourse blends into other discourses: discourses interpenetrate one another and the lines between them may be blurry and jagged rather than focused and straight. In the holistic model, arguments, ideas, and concepts can enter legal discourse from economics, philosophy, chemistry, and so forth. Consider two ways in which such entry might occur. First, in any given legal dispute, argumentation about what the law is can escalate to a fairly high level of abstraction—the realm of jurisprudence. One picture of how such escalation might occur is offered by Ronald Dworkin in his theory of law as integrity. Hercules is driven by a hard case to consideration of questions of political philosophy, such as what is the best theory of equality.
The picture offered by the holistic model is that discourse at the periphery, such as an opinion in a particular case, is connected to discourse nearer the core, such as arguments of political theory. One imagines a chain of reasoning that begins at the periphery and moves toward the core, gradually moving from concrete legal argument to legal theory to political theory. There is a second way in which ideas from other discourses can enter legal discourse. In any given legal dispute, the resolution of the particular controversy may require the consideration of notions from some other discourse. One way in which this occurs involves fact-finding. For example, an intellectual property case requires the introduction of testimony about bioengineering. The outcome of a legal dispute may depend directly on the truth of a proposition of biochemistry. Another way in which such entry occurs involves norm-specification. For example, commercial practice is considered in the formulation of a rule of contract law. The correct legal rule may depend on the discourse of a group of merchants. On the holistic model, we might picture this sort of interaction of legal discourse with other discourses as movement around the perimeter. We move on an arc from law to chemistry, accounting, or some other realm of human discourse. A qualification of the holistic model should be emphasized at this point. Saying that the boundaries of legal discourse are porous is not the same as saying they are nonexistent. Arguments drawn from political theory do not necessarily translate into legal arguments. The holistic model assumes that migration is possible--that there is no a priori reason to rule the arguments of political theory out of the court of legal argument.
On the other hand, there may be a posteriori reasons for the exclusion of such arguments. There may be good reasons to treat a given legal rule as settled. The rule may be reasonably just, incorporated into a statute, and hence treated as settled for reasons of fairness. Under these circumstances, it may well be the case that judges will reject, out of hand as it were, arguments that question whether the rule is the best one. The judge may say in effect, You may be right that this rule is not the most efficient one, but this rule is settled law and I won't even listen to arguments that it should be replaced, simply because a somewhat better rule is available. The costs of changing the rules every time a marginal improvement was available would far exceed the benefits. The same message might be given in shorthand: "This is the settled rule of law." Given the holistic view, there distinction between propositions of law and propositions about law will not be hard and fast. Rather, the distinction will be drawn on the basis of pragmatic concerns.
Read Balkin and Levinson's fine article!