Reflections on the Nature of Legal Scholarship in the Post-Realist Era

This article presents a tightly organized and closely reasoned analysis of legal scholarship in the current post-realist era. Secure and well-defined within the formalist legal world of the nineteenth century, the practice of legal scholarship has been profoundly affected by the realist revolution of the early twentieth century and the instrumentalist view of law that now prevails in the twenty-first century. In response, legal scholars have been forced to dramatically alter the focus, the materials and the basic methods of their study. The practice of legal scholarship is currently occupied in a prolonged struggle to adapt to these changes and to again find for itself a coherent and meaningful place in both the legal and the university communities. Legal scholarship that describes, but that does not attempt to explain, existing legal doctrine can continue to operate under instrumentalism much as it did before, but it can be expected to, and in fact it has, experienced a significant decrease in the prestige that it enjoys. Descriptive legal scholarship that attempts to explain the current substance of legal doctrine from a dominantly realist perspective, or that offers explanations for the substance of legal rules that are overly cynical, even if factually true, faces the problem of being viewed as offering little of practical value to judges and to the practicing bar. This has led to the enormous popularity among legal scholars of a kind of second-order descriptive scholarship that attempts to depict existing doctrinal law as the expression of an underlying, even if wholly unarticulated, set of social goals or principles. This article discusses the qualities and various characteristics of this approach within an instrumentalist paradigm. The article also considers the nature of normative legal analysis in the current post-realist environment. The role of normative analysis in a formalist world is described, as are attempts to retain the attractive features of that traditional role in the current period by the adoption of quasi-formalist approaches to normative work. The article also identifies the most fundamental challenge posed to normative legal scholarship by the widespread adoption of an instrumentalist view of law, the need to move beyond the materials typically available in a law library and to analyze the likely practical consequences of different versions of legal doctrine to the relevant regulated community. Current strong trends towards interdisciplinary and empirical legal scholarship are understood as logical responses to this challenge, though each are shown to face significant obstacles as they seek to flourish at professional schools of law operating within a modern university setting