After analyzing various contours of the critique of antinormativity, I argue that jurisprudence is and should be about what justice requires. It must therefore be prescriptive. And to the extent that justice itself is a product of our passion, it must also be passionate. This form of jurisprudence has great social value. It often influences not only our law, but also our political environment and the world of ideas at the university. Moreover, it is not done anywhere, except in law schools. If we give up this work, our worlds, not only the legal world, but also our social, cultural and political worlds, will be all the worse off. In recent years, jurisprudence has been criticized for being too theoretical. As far as normative jurisprudence is concerned, however, the criticism is false. We need more attention to theory, otherwise we will end up with what we now have too much: claims without a solid normative basis, which are little more than opinions.
We have no shortage of opinions, and simply producing more opinions will not make science more practical. Legal scholars often fail to distinguish between descriptive claims about what the law is and normative claims about what it should be. The distinction may not be more important, but scholars often confuse it, leading them to confuse legal authority with moral authority, to treat applicable law as justification for themselves, and to generally use rhetorical strategies better suited to legal practice than to science. As a result, scholars sometimes speak one after another and generate not science, but scholarly porridge. The academic mission of the Academy of Law is under attack from all sides. Critics include universities that house law schools, the legal profession and banking, lawyers themselves, and cost-conscious critics. What are their complaints? And what is the value of case law? Of course, centuries-old jurisprudential arguments have struggled to disentangle the exact relationship between law and morality, but my message is simple: researchers need to be clearer, more transparent, and stricter about which of their claims are descriptive and which are normative (and what kind of normativity they are). By being more specific, we can hope to stop talking to each other and develop more objective criteria for evaluating both science and public policy in general. Academic critics argue that the jurisprudence is too argumentative or too “prescriptive,” simply saying what the law should be and what the law is. It is not the pursuit of knowledge by pure science in the discipline of a recognized academic field.
Critics of the bar and the judiciary complain of the opposite: jurisprudence is too academic and not professional enough, fashion-loving, detached from any discipline and of little use to the lawyer or the sitting judge. Legions of critics from cost-conscious law schools complain that paying high salaries to professors with low course loads drives up tuition fees. Many professors themselves have serious reservations about this scientific undertaking. There is a grain of truth in all these complaints. The value of jurisprudence can be better appreciated by imagining a world without it. Law schools would educate students, but not so well. Focusing exclusively on skills would omit lessons on thinking, not to mention how lawyers think. The law school`s vision of law and advocacy would be atrophied, limited by current practice and not tempered by an ephemeral knowledge of other humanities and social sciences. We would lose the attention and loyalty of graduate students from other countries who value their American law degrees in part because of the breadth and depth of the deeply interdisciplinary legal education they find here — precisely because of the scientific mission of the schools. Judges, legislators and administrators may miss critical commentary on the law and its theoretical underpinnings much more than they think.
Without research on grey areas, judges may give less thoughtful opinions. Lawmakers and administrators may not have benefited from richly developed work articulating the need for change to address injustice. The theories that have fundamentally changed the way we think about law may not exist. Justice Alex Kozinski argued that “big, transformative ideas” always come from academia because lawyers are uniquely positioned to generate them and fill courses with ideas that then become second nature to a generation of students who become practicing lawyers, judges and administrators. All those involved in the legal enterprise – law schools and students, bar associations and clients, courts and trainee lawyers, legislators and staff, administrative authorities and others – would be poorer without case law. But what about the rest of the critic`s letter? What critics attack as weaknesses are also the strengths of jurisprudence. It is often prescriptive and aims to explain what the law should be as well as to clarify what it is, but this does not detract from its scientific value. Law is more academic than writing dissertations, but that does not detract from their professional value. It lacks a unifying method and a unifying goal, but that does not make it undisciplined. Robin West, The Ethics of Normative Legal Scholarship, 101 Marq. 981 (2018). Available at: scholarship.law.marquette.edu/mulr/vol101/iss4/7 Case law, which is under attack by critics inside and outside the law school, finds itself in a “normativity dilemma.” For some critics, jurisprudence is not a science because it is too prescriptive; For others, it may be science, but it`s not legal because it`s not prescriptive enough.
In this article, I address one aspect of this problem, what I call the anti-normativity complaint: that jurisprudence is somehow not “real science” because much of it is overtly normative. Jurisprudence, according to this line of criticism, is not true science because of the predominance of statements “should”: if it aims to improve the law or universal law, and wants to do so through the use of legal materials and legal methodology, it is not science. So we should not do that. Most law schools are produced in law schools that are part of universities dedicated to the pursuit of knowledge, but law schools are also part of a legal profession committed to the ideal of justice, and even defined by. The scholarship reflects the dual identity of the Law Academy. Normative jurisprudence aims to influence judges, lawyers, legislators or regulators to reform, interpret or preserve existing law in order to make the world a fairer place. Science education aims at interpretations that show what actions justice requires or prohibits. Reformist jurisprudence aims to make the law fairer, not by interpreting existing law, but by advocating for proposed legal reforms. The reformist scholar emphasizes allegations of injustice, or at least combines them with direct appeals to the common good or public policy. Normative science is not subject to the same constraints as a judge`s opinion or a brief written for a client. It can cover entire areas of law to answer questions that are not raised by individual cases. It seeks fundamental changes in the law, often over a long period of time, but not directly through legal action.
His impact is felt through the power of his reasoning on his readership, including students who become clerks, lawyers, judges and legislators. This fellowship is based on the understanding that the work of justice falls directly within the scope and scope of law. It also shows that the work of the civil lawyer requires scientific virtues: deep commitment and rigorous reflection. What about the complaint by the Bar Association and prominent members of the judiciary, including the Chief Justice of the Supreme Court, that the jurisprudence is too academic, fashionable and impractical? Here, too, there is a substantial grain of truth underneath the pejorative connotation. These complaints are usually filed not with normative science, but with growing fields and subfields that criticize law through the prism of other disciplines loosely derived from the social sciences or humanities. Contemporary critical jurisprudence was triggered or revived by the critical legal studies movement of the 1970s and 1980s, which expressed criticism of law from a moral or political perspective. Detached from interpretive biases, it has opened up insights into areas such as how contract law might legitimize unfair distributions of wealth, status, or power, or how anti-discrimination laws might give a burst of fairness to persistent racial subordination not motivated by prejudice. This research revealed flaws in existing law and legalism, regardless of whether the criticism led to discernible avenues of immediate legal reform. Theoretical jurisprudence reveals the foundations of law and explores its history, political implications, coherence and justice of alternatives.