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A Quartet of Essays on Scholarship
Cleveland-Marshall College of Law Legal Studies Research Paper Series (2015)
  • David Barnhizer
Abstract
Regardless of academic rhetoric, universities are powerful institutional systems that are as doctrinaire and hidebound in their behavior as any other institution whose beneficiaries are seeking to protect vested interests or simply defend that with which they are most familiar and on which their training is based and reputations sustained. This is consistent with Keynes’ conclusion that most university faculty are little more than “academic scribblers” who live their lives content to operate within the safe confines of the ideas and reward system in which they were initially indoctrinated and from which they extract benefits. While the ideal of the pursuit of knowledge for its own sake is frequently offered as a justification for independent research and scholarship, the likelihood of individuals behaving in full accord with such a strongly principled norm depends on the incentives and disincentives to which they are subject. Law is a form of politics made concrete. It both reflects and generates political values and positions in ways that, in a complex Rule of Law society that has lost its shared values and ability to communicate and negotiate based on commonly held norms, is an engine that creates and allocates power and duty. Oddly enough, many of the interests that are now relying on the Rule of Law as the justification for their positions would be complete “losers” if their arguments and institutional manipulations were not successful. “Law,” writ large, is the only thing that underpins such issues as gender and sexual rights, racial preferences, wealth redistribution and so much more. Given the character of law as the (theoretical) source of value and the instruments of implementation it is inevitable and appropriate that legal scholars are political theorists and critics. They are responsible for expressing their carefully developed insights through the mechanism of legal scholarship. The problem is that the discourse has become unbalanced and the discussion one-sided. Law is a manifestation of power and the best scholarship done by law school academics inevitably relates to the exercise of the power and force of law. Lawrence Friedman explains the connection thus: “it is through law, legal institutions, and legal processes that customs and ideas take on a more permanent, rigid form. The legal system is a structure. It has shape and form. It lasts. It is visible. It sets up fields of force. It affects ways of thinking. When practices, habits, and customs turn into law, they tend to become stronger, more fixed, more explicit.” Explaining, critiquing, influencing and challenging the aims and interactions of law and power are the primary responsibility of legal scholars, that which legitimates their claim to tenure and privilege within the university. The reality of group behavior is that power is defended if one possesses it, sought if one desires or needs it, and undermined when the scholar and the reference group with which a scholar identifies successfully engages in a strategy of “softening up” the foundation principles and assumptions of competitors. In his book, Power, Adolf Berle warns that control of institutions is the only way by which people can extend their power beyond the limited reach of their fists or guns. Those collective identity groups that are seeking to capture the ability to dictate rules to others or to protect themselves against others’ control create strategies to gain possession of the institutions that make and enforce the rules or laws. While it is appropriate and necessary that legal scholars include the political in their work, including the politics of justice and a critique of unjust elements of the system, it is inappropriate that scholars become so possessed by the political that they lose their fragile objectivity in the passionate embrace of political agendas. Our job is to understand and critique the political dimension of law, not to become the politics themselves. In many of its aspects law is a form of “applied philosophy”. A result of our succumbing to the lure of the intensity and celebrity of the political sphere is that we have gone from a pseudo-intellectual culture characterized by a false claim to Langdellian science to an incoherent melange without a core methodology or standards of evaluation.
Keywords
  • legal scholarship,
  • scholarship,
  • university ideal,
  • law and power,
  • activist scholarship,
  • pursuit of knowledge,
  • roles of scholars
Publication Date
September 29, 2015
Citation Information
David Barnhizer. "A Quartet of Essays on Scholarship" Cleveland-Marshall College of Law Legal Studies Research Paper Series (2015)
Available at: http://works.bepress.com/david_barnhizer/99/