Let’s begin by considering Albert Camus’ observation about the need for the scholar to keep sufficient distance from the heated conditions of society in order to retain the clear perspective required to fulfill the traditional ideals of the university—those being the creation of original knowledge and the refinement, preservation and application of the best existing learning and insight achieved by humans’ exercise of intellect and wisdom. This is not happening with the thrust of “advocacy” scholarship that has flooded academia.
Peter Drucker writes that what we are experiencing is a form of combative pluralism in which identity groups are continually maneuvering to seize and maintain power. Drucker remarks: “The new pluralism … focuses on power. It is a pluralism of single-cause, single-interest groups—the “mass movements” of small but highly disciplined minorities. Each of them tries to obtain through power what it could not obtain through numbers or through persuasion. Each is exclusively political.” The problem for understanding legal scholarship is that political affiliation involves allegiance and membership. These influence not only how we see things but how and whether we are willing to describe them to others. An advocate holds one’s cards “close to the vest” and reveals only that which is thought to be in the individual or interest group’s interests.
With the power-focused identity group pluralism Drucker describes, it has become extremely difficult to draw the line between maintaining the necessary distance that allows us to stand apart from turmoil that blurs our intellectual clarity and objectivity, and effects our desire to challenge the dynamics of an unjust world. We care deeply about unfairness and injustice. This means that it is very easy to feel that the issues at the heart of our disagreements are too important to be left to the cold language of rational analysis. Heart as well as mind comes into play in how we view the world. This has to be taken into account in assessing the intellectual integrity of our scholarly interpretations.
In warning about the need for distance Camus wrote: “[I]t is not possible to be a militant in one’s spare time. And so the artist of today becomes unreal if he remains in his ivory tower or sterilized if he spends his time galloping around the political arena…. [T]he writer must be fully aware of the dramas of his time and that he must take sides every time he can or knows how to do so. But he must also maintain or resume from time to time a certain distance in relation to our history.” The tension between activist and dispassionate intellectual activity is at the core of what passes as modern scholarship, particularly in disciplines such as law that are intimately and inextricably bound to power.
‘Speaking Truth to Power’ or Chasing Our Own Share?
Power is at the core of our dilemma. Of course we must seek to “speak truth to power” but we unfortunately seem to be often seeking to undermine existing systems so that those with whom we politically identify seize power and then act to advance their own interests and agendas while marginalizing and demonizing those they replace. In a system governed by the Rule of Law, law is, after all, the core method by which we infuse and advance social and political desires by gaining access to the power of the state. Lawrence Friedman explains why this is so, arguing: “In complex societies custom is too flabby to do all the work—to run the machinery of order. Law carries a powerful stick: the threat of force. This is the fist inside its velvet glove …” He adds: “law and … courts stand at the very core of crucial decisions in the United States. These decisions concern policy in many spheres of life, including the major social questions and such sticky issues as obscenity, abortion, sexual deviancy, personal morality, and drug laws—in short, the whole social revolution.”
Roscoe Pound described the function of law in moderating the disputes and making required adjustments in a system beset by fundamental social and political disagreements. He explained the internal tensions as emanating from the fact that: “Law must be stable and yet it cannot stand still… [A]ll the writing about law has struggled to reconcile the conflicting demands of the need of stability and the need of change …. If we seek principles, we must seek principles of change no less than principles of stability.” Yet even though law “cannot stand still” in the face of social change and injustice, if it changes too fundamentally and too rapidly it becomes the transparent exercise of naked power. When this occurs it corrupts and corrodes the underlying belief in the authentic spirit of the Rule of Law, converting it to nothing more than Rule by Law. This evokes Aristotle’s warning that: “the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law.”
Law and Instrumentalism and an Age of Uncertainty
Unfortunately, we are a nation of idiosyncratic believers in which far too many reject the possibility of a deeper system of principles that guide our decisions, and only hold to the idea of a kind of natural law or justice when an interest to which we are deeply committed is at stake. We are sophists and advocates who have lost our grounding and can only resort to slogans aggressively converted to linguistic “framing” pronouncements. Former Library of Congress Director Daniel Boorstin described our quandary, saying “the mystery—of law in modern society … [is] How retain any belief in the immanence of law, in its superiority to our individual, temporary needs, after we have adopted a whole-hearted modern belief in its instrumentality? How continue to believe that something about our law is changeless after we have discovered that it may be infinitely plastic? How believe that in some sense the basic laws of society are given us by God, after we have become convinced that we have given them to ourselves.”
The unprincipled uncertainty this instrumentalism and plasticity implies about the sources of authority underlying our system of law and politics has further metamorphosed into a system in which the ability to control the levers of power is the only source of authority. A result is that there is no real discourse because everything is concentrated on achieving an interest group’s agenda, one that inevitably allocates “the spoils of war” to the group’s members and allies. Part of this transformation is that everything becomes a strategic game in which subtle as well as overt manipulation is seen as legitimate by the competing actors.
Law and legal scholarship are inescapably part of this strategic power-directed behavior with the result that corruption, dishonesty, smugness, self-centeredness and even ignorance are reflected in what too many “scholars” write. In such a context stereotypes run amok. Rather than seeking to “discover” new knowledge or preserve and refine the best of our hard earned understanding many modern scholars are engaged in rationalizing and justifying positions they held even before they developed the work. The world of scholarly publishing in many disciplines, including law, has experienced a radical transformation to the point that it is a confusing hodgepodge of approaches, methods and products. Much of what is being published bears scant resemblance to what is thought of as the traditional role of the scholar–the in-depth pursuit of knowledge of the kind that enriches our intellectual world or helps us to understand critical issues in a balanced way and cope with the most challenging matters facing our society.
Power, Propaganda and Polemic
It is fair to ask whether the “scholarly” activities of law teachers produce the degree of social benefit to society and to the legal profession and judiciary that should be expected (if not demanded) from a group of well-paid individuals entrusted with defending and advancing the system of justice and protecting the essential principles of the Rule of Law? One of the core obstacles to answering such questions is that we have lost the ability to distinguish between scholarship and advocacy, between propaganda and the willingness to engage in honest analysis wherever it leads. Much of what is published is advocacy and all good advocates understand the danger of offering qualifications and data that can be turned around on the writer or speaker by those representing other interest groups pursuing contrary outcomes.
There is in fact a huge amount of writing being done by university faculty in an increasingly vast array of forms and contexts. Former University of Michigan faculty member Francis Allen wrote thirty years ago of a fragmenting phenomenon that has only continued apace. He observed: “We feel less confident than we did formerly that we understand our colleagues’ judgments on questions of intellectual style, purpose, or technique. We sense a dissolving accord on what is good scholarly work.” If that dissolving accord was already being felt in the 1980’s aggressive one-sided critique is the dominant ethos of much of legal scholarship today.
Writing is not the same as scholarship even if done by a faculty member of a university. And polemic is not congruent with careful and dispassionate analysis even if that analysis is aimed at recommending solutions to critical social problems. One academic has drawn the distinction between “academic writing” and “scholarship” in the following way, saying: “scholarly writing is produced to add to the body of knowledge, extending, challenging, or expanding what is known or believed within the field. Thus, while all scholarly writing is academic writing, not all academic writing is scholarly writing.” Sandra Shannon adds: “academic writing may be defined broadly as any writing completed to fulfill university or college requirements, scholarly writing is produced to inform a specialized audience of other scholars in a particular field.” To this we can add another category, that of writing done to shape attitudes related to political interests of a faculty member with the intention that others accept it as being more accurate and powerful because it is done with the patina of a university professional.
The problem is that published writing is not automatically the same as scholarship. At this point in the degradation of the process this probably is of little consequence. In any event, even if we did decide to regenerate some criteria for actual intellectual quality and creativity in legal scholarship one important challenge in trying to sort “true” or profound scholarship from mediocrity and rubbish is that virtually anything a faculty member writes can find a home in print somewhere, including electronic media. The proliferation of narrow special interest journals has exacerbated the situation. It has increasingly become the case that we lack the criteria, courage or political will to carefully evaluate and critique what is put forward as legitimate scholarship.