The Practice and Discourse of Legal Scholarship
![handle is hein.journals/mlr86 and id is 1861 raw text is: THE PRACTICE AND DISCOURSE OF
LEGAL SCHOLARSHIP
Edward L. Rubin*
This Article is an attempt to evaluate the enterprise of legal schol-
arship. It might appear that an enormous amount has been written
about the subject in recent years, but the majority of the discussions
actually focus on the law itself, on legal theory, or on the validity of
new approaches, such as law aiid economics, law and literature, and
critical legal studies. The concern here is the remainder - that great
mass of work that discusses contemporary legal issues in a manner
that is difficult to describe but easy to recognize.I It can be referred to,
without any implicit condemnation, as standard legal scholarship.
These are not cheerful times for standard legal scholarship. In
fact, the field is widely perceived as being in a state of disarray. It
seems to lack a unified purpose, a coherent methodology, a sense of
forward motion, and a secure link to its past traditions. It is bedeviled
by a gnawing sense that it should adopt the methods of other disci-
plines but it is uncertain how the process is to be accomplished. The
field even lacks a conceptual framework within which to criticize
itself.
One reasonable way to develop such a framework is to rely upon
the same approach that has been used to reevaluate other forms of
scholarship. In fact, the reevaluation of scholarship has been a central
theme in twentieth-century thought. Its most consistent development
is to be found in continental philosophy: the phenomenology of
Husserl,2 Schutz,3 and Merleau-Ponty,4 the linguistic analysis of the
* Professor of Law, University of California, Berkeley. I am grateful to Richard Buxbaum,
William Fletcher, Richard Hyland, Sanford Kadish, Robert Weisberg and Franklin Zimring for
reading and commenting on various versions of this Article, and to the participants in Berkeley's
Jurisprudence and Social Policy seminar, where one version was presented.
1. A more precise description can only be given once the framework of analysis is presented,
for reasons stated in the text at notes 21-41 infra. To anticipate, standard legal scholarship
adopts a prescriptive approach, see text at notes 45-49 infra, is grounded on normative positions,
see text at notes 52-56 infra, and is expressed in judicial discourse, see text at notes 74-85 infra.
2. The work that deals most directly with the problem of scholarship is E. HUSSERL, THE
CRISIS OF EUROPEAN SCIENCES AND TRANSCENDENTAL PHENOMENOLOGY (D. Carr trans.
1970) [hereinafter HUSSERL, EUROPEAN SCIENCES].
3. A. SCHUTZ, COLLECTED PAPERS (1962) [hereinafter SCHUTZ, PAPERS].
4. M. MERLEAU-PONTY, PHENOMENOLOGY OF PERCEPTION (C. Smith trans. 1962).
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The Practice and Discourse of Legal Scholarship
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