Vol. 9 No. 8 (September 1999) pp. 379-381.
THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP by Paul W. Kahn. Chicago: University of Chicago
Press, 1999. 169
pp. Cloth $27.50.
Reviewed by Scott D. Gerber, Social Philosophy and Policy Center.
Paul W. Kahn is Nicholas deB. Katzenbach Professor of Law at Yale Law School. THE CULTURAL STUDY OF LAW is his
third book and, according to the acknowledgments, it has its genesis in a suggestion by Bruce A. Ackerman, Kahn's
colleague at Yale and one of the most influential legal theorists of the day, that Kahn write an article "explaining
the work [he has] been doing the past several years" (p. ix).
I have read both of Kahn's earlier books (Kahn 1992; Kahn 1997), and I wrote a review of his 1997 book for the
JOURNAL OF AMERICAN HISTORY (Gerber 1998). I am not privy to why Ackerman encouraged Kahn to write a separate
piece explaining his research agenda, but if it was to make Kahn's earlier work more accessible he deserves much
thanks.
Personally, when I write I try to be as nontechnical as possible. Too often in the profession scholarship that
is difficult to understand is called "brilliant" or "ground-breaking," when the better response
would be that it is "turgid" or "pretentious." Occasionally, though, a subject makes complexity
unavoidable. Such is the case with the subject of THE CULTURAL STUDY OF LAW: legal scholarship itself.
Kahn's thesis is that legal scholars are too preoccupied with legal reform--that, in other words, we are as much
a part of legal practice as judges and advocates. A more meaningful approach to law is one that envisions law
as a separate discipline, one that, as Kahn puts it, "stands outside law's normative framework and
looks at law as a way of life rather than a set of rules." Kahn sets out to do precisely that in a book that
is short in length (139 pages of text), but long on insight.
THE CULTURAL STUDY OF LAW is divided into three parts: an introduction, three substantive chapters, and a conclusion.
In the Introduction, "Theory and Practice," Kahn explains why he wrote the book. He states: "There
is remarkably little study of the culture of the rule of law itself as a distinct way of understanding and perceiving
meaning in the events of our political and social life" (p. 1). A couple of pages later Kahn asks the sixty-four-dollar
question: "Would a scholar who purports to suspend belief in law's rule--even as a program for reform--be
welcome in the nation's law schools?" (p. 3). Only time will tell. After all, what Kahn is
proposing is a new academic discipline. Law schools should not simply be professional schools, he maintains.
They should be places where scholars can endeavor to discover "what it is that the law makes us" (p.
6). (His recurring analogy--and it's an excellent one--is to religious studies departments, where the aim is not
the reform of religious beliefs and proselytization, but religion's significance to human life.)
In Chapter One, "The State of the Discipline," Kahn juxtaposes his project against the sort of if-I-was-a-judge-this-is-how-I-would-have-decided-the-case
orientation of traditional legal scholarship. And although Kahn recognizes that most lawyers and judges think
that contemporary legal scholarship is too
theoretical, he maintains that "the problem is exactly the opposite" (p. 7). To make the point another
way, Kahn states in one of the best lines I have read in a long time, "Legal scholars are not studying law,
they are doing it" (p. 27). (Political scientists will be pleased to learn that Kahn praises our approach
to scholarship).
Chapter Two, "Imagining the Rule of Law," is the longest and most complex chapter in the book. This
is where Kahn describes at length the possibility and the general subject matter of the new discipline he envisions.
He draws on philosophers from Plato to Foucault and cultural anthropologists and historians such as
Clifford Geertz and Perry Miller, and he analyzes the concepts of time, space, citizen, judge, sovereignty, and
theory. His most important point is that there are alternatives to law's claim upon us that traditional legal
scholarship--bound as it is to legal practice--has failed to identify. Intriguingly, Kahn does not tell us what
the "correct" alternative is: apparently, the cultural project is more concerned with posing questions
than with providing answers (ironically, this is what traditional legal scholars do in the classroom).
In Chapter Three, "Methodological Rules," Kahn describes the methodology of the cultural study of law.
His goal is "to establish the conditions of inquiry under which legal scholarship can break with legal practice"
(p. 91). The rules are: (1) the rule of law is not a failed form of something other than itself, (2) the rule
of law is not the product of rational design, (3) the rule of law is a set of meanings by which we live, (4) scholarship
must forsake the myth of progress, (5) the object of cultural study is the community, not the individual, (6) law's
rule is never at stake in the outcome of a particular case, (7) the cultural study requires the study of law's
other, and (8) the rule of law makes a total claim upon itself. I should emphasize here that Kahn does not merely
list the rules like I have done. He explains them, and he tries to convince the reader of their importance. (His
discussion of rule 7 is particularly appealing: he sees a world of "love" as an alternative to a world
of "law." If only it was so. . . .).
Kahn uses the Conclusion to his book to do more than restate his case. Rather, he offers some observations on
why legal scholars may find the cultural study of law more rewarding than law as practice. His most compelling
point is that courts don't matter--or at least not much (he cites political scientist Gerald Rosenberg's THE HOLLOW
HOPE [1991] for support). And since legal scholars constantly claim that we are concerned about making a difference
in the world, Kahn urges us to look outside the world we inhabit. He writes: "In the end, this means that
the scholar must take responsibility for the values he holds. This is the practical promise of a cultural study:
not the freedom of relativism but the freedom of responsibility" (p. 138).
Paul Kahn's THE CULTURAL STUDY OF LAW is not an easy book to get through. It is complex, subtle, and at times
unclear. However, it is also thought provoking. After reading it I was not only better able to understand Kahn's
earlier books (NB: this book should be read BEFORE the previous two), I was better able to understand the law
itself. Scholars can learn much from Kahn's latest volume.
REFERENCES
Kahn, Paul W. 1992. LEGITIMACY AND HISTORY: SELF-GOVERNMENT IN
AMERICAN CONSTITUTIONAL THEORY. New Haven: Yale University Press.
Kahn, Paul W.. 1997. THE REIGN OF LAW: MARBURY v. MADISON AND THE
CONSTRUCTION OF AMERICA. New Haven : Yale University Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? Chicago: University of Chicago Press.