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90 Yale L.J. 970 (1980-1981)
Two Modes of Legal Thought

handle is hein.journals/ylr90 and id is 988 raw text is: Two Modes of Legal Thought George P. Fletcher* We should begin with a confession of ignorance. We have no ju- risprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture-legislators, judges, prose- cutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching,' but none about the craft of scholarship. In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholar- ship expresses itself in a variety of verbal forms. Descriptive propo- sitions about the law, normative claims about what the law ought to be, and exhortations to decisionmakers to change the law are but ex- amples of the variety of forms that appear in scholarly writing about the law. My initial task in this article is to work out some important distinctions among these verbal forms. Those distinctions generate a framework that I then use to make two more adventurous claims. I claim first that we can usefully distinguish between two modes of legal thought, which I shall call committed argument and de- tached observation; and further, that whether we engage exclusively in one form of legal scholarship or another depends on our implicit assumptions about the nature of law. With these bolder theses de- fended, I then analyze how scholars can and do make persuasive claims in the mode of committed argument. I. Claims That Scholars Make To develop a taxonomy of legal claims, I borrow from the conven- tional distinctions used in classifying propositions in moral discourse. Academic writings about ethics conventionally distinguish between 0 Professor of Law, University of California, Los Angeles. My thanks to the UCLA Tuesday Night Circle for devoting an evening to the dis- cussion of an earlier draft of this paper. Robert Gerstein, Stephen Munzer, Herbert Munzer, Herbert Morris, Ann McConnell, Drew Cornell, and Guyora Binder helped catch some of my mistakes. 1. The Association of American Law Schools publishes the Journal of Legal Education. 970

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