The Legal Studies Reader: A Conversation & Readings About Law.

Vol. 14 No. 9 (September 2004), pp.735-738

THE LEGAL STUDIES READER: A CONVERSATION & READINGS ABOUT LAW, by George Wright and Maria Stalzer Wyant Cuzzo (eds.). New York: Peter Lang, 2004. 296pp. Paper $32.95. ISBN: 0-8204-5106-1.

Reviewed by Paul Parker, Social Science Division, Truman State University. Email: parker@truman.edu .

THE LEGAL STUDIES READER is volume 9 in Peter Lang’s “Teaching Texts in Law and Politics.” As a teaching text, its value to researchers will be limited: the authors omit the footnotes of the original essays, and there is no index. Its value to instructors will depend on their desire and commitment to read challenging essays with the “attitudes and habits of mind” the authors identify as useful to the study of law: the willingness to engage in sincere, authentic conversation, including making and supporting claims in the pursuit of truth (p.xv).

This book is presented in two parts, the first of which is a conversation between the two editors on the nature of law and the study of the discipline. This 15 page conversation does not directly introduce the essays. Instead this is a series of three exchanges between the rule-of-law Wright and the law-and-society Cuzzo. In addition to laying out the essentialist and constructionist understandings of law, presumably this exchange is also intended to serve as a model for sincere and authentic conversation. Coming as it does prior to the essays, I found the conversation lacking context and underdeveloped; either lengthening the exchanges to develop ideas students are encountering for the first time, or sprinkling the exchanges between subsections in Part II might aid students’ ability to link this conversation to those essays. I will return to this conversation after a brief overview of the essays.

Part II is a collection of 13 essays divided into three subsections. More than half the book is devoted to the seven readings that comprise the first subsection, “Readings About Law: Legal Philosophy.” Five of these reconstruct the advent of legal realism, responses to realism, and responses to the responses. Collectively they might be read as addressing the questions, what is a good law, and what makes a law good? Chapter 1, “Some Realism about Realism,” is Llewellyn’s response to Roscoe Pound’s “The Call for a Realist Jurisprudence” (not reproduced here). It is good to start with the realist challenge to the rule of law position, but this is a challenging read for novices: Llewellyn identifies 12 points that Pound associated with the realist school, assesses these 12 points against 90 articles written by 20 realist scholars, and concludes that Pound’s efforts to outline a school fail. Llewellyn then identifies points of agreement among realists – the need to study lower courts and administrative agencies, the importance of human actors as opposed to rules in deciding cases, the choice inherent in legal decision making, such that good legal work necessarily pays attention to consequences. Hence, students get some sense of how realists saw themselves at the time, as well as [*736] the larger lesson that we need to be careful in ascribing too much coherency or consistency to a labeled group of scholars.

Chapters 2 and 3 reproduce the famous mid-century exchange pitting H.L.A.Hart’s “Positivism and the Separation of Law and Morals” against the “inner morality of law” found in Lon Fuller’s “Reply to Hart.” The hard case central to their disagreement is how to handle, in post-War Germany, the case of a grudge informer who uses as her defense Nazi laws. While Hart wrestles with the conundrum of a positivist’s fidelity to (bad) law, and “our duty to do what is right and decent,” Fuller claims such a problem “makes no sense. It is like saying I have to choose between giving food to a starving man and being mimsy with the borogoves” (pp.81-2). In “A Model of Rules,” Ronald Dworkin parses the language and logic of Hart’s positivism, further undermining the project of positivism that Hart had been trying to salvage in the wake of weaknesses in the works of Austin and Bentham. In Chapter 5, Anthony D’Amato’s “The Limits of Legal Realism” revisits the case of the Nazi grudge informer and proposes a new theory of law that, “would insist that popular acceptance of the legitimacy of officials’ entitlement to make authoritative decisions is grounded on morality and not an a purely legal construct such as Hart’s rule of recognition” (p.151). D’Amato dovetails with Fuller’s claim that “order itself will do no good unless it is good for something” (p.82).

So by now I am convinced, there is a difference between order and good order. The final two readings in this section raises the question, Whose good order? The two answers we are offered are the essentialist John Finnis’s and the social constructionist Jurgen Habermas’s. Contemporary natural law theorist Finnis challenges the liberal model of justice as rule following in “Virtue and the Constitution of the United States” (Chapter 6), in which he discusses the importance of civic participation and development of individual autonomy and dignity. Finnis argues against respecting diversity insofar as this means denying respect to homosexual conduct, or “any other form of non-marital sex acts;” such respect would “endorse an important falsehood about what is good for human persons, and [would make] a contribution towards the collapse of marriage as a civic institution and personal reality” (p.155). Habermas also cares about civic participation and autonomy, as seen in “Paradigms of Law” (Chapter 7). But his good order would replace “the pressure toward assimilation that is exerted on women” by present legal paradigms that see “differences . . . as deviations – as gender-dependent, indeed feminine, exceptions from supposedly unproblematic male standards” (p.167).

Four essays make up the second section of Part II, “Science(s) of Law.” In Chapter 8, “The Boundaries of Legal Sociology,” Donald Black argues for the positivist “Scientific analysis of legal life” that would result in “a general theory of law, a theory that would predict and explain every instance of legal behavior” (pp.173-74). Phillipe Nonet’s “For Jurisprudential Sociology” is a direct response to Black, demonstrating the inability of the “pure sociologist” to remove ideology and bias [*737] from his study. Marc Galanter’s “Why the ‘Haves’ Come Out Ahead” is included as “the residual academic legatee of American Legal Realism, the law-and-society perspective” (p.xviii), while “The Emergence and Transformation of Disputes” by William L.F. Felstiner, Richard L. Abel, and Austin Sarat is offered as pure empiricism (ibid.).

Derrick Bell’s “Racial Realism” and Frances Olsen’s “The Sex of Law” comprise the final subsection of the book, “Alternative Voices.” Bell rejects the notion that blacks can ever achieve equality under the law in the United States, arguing that despite the legal realists, formalism is alive and well in the form of “precedent, rights theory, and objectivity [which] merely are formal rules that serve a covert purpose” (p.252). Olsen might usefully be read prior to Habermas, for she argues how our characteristic dualist thinking reinforces masculine privilege.

This final section takes us back to Part I, “A Conversation about Law.” Wright presents the rule of law position, and he asserts that fidelity to the law is essential to freedom. Thus he explicitly rejects Bell’s argument: “For a legal system to be effective, those to whom it applies must believe in its fairness and justice and adopt a point of view internal to its operations” (p.4). To support this claim he invokes Cicero’s dichotomy of law and violence (p.4) Given that choice, it is not hard to see “the link between constitutionalism, progress and freedom” (p.6). Wright ends his first exchange by asserting that “the goal of the study of law in the Legal Studies classroom should be to teach good citizenship generally and respect for law in particular” (p.7). Clear threats to the respect for law are legal realist, social scientific, and critical legal studies approaches to the study of law that do not take an internal view to the study of law.

Cuzzo presents the more nuanced and open views of the study of law, noting that the internal view leads to a “navel-gazing perspective” (p.9) that produces “critical reflections that are narrow and blind to the real limitations of the law” (p.10). In response, Wright argues that legal realist and social scientific studies of law do harm to the liberal polity by undermining respect for law. Wright thus argues for the virtue of hypocrisy. His plea to study law from the internal view of that legal theory is the plea for a more hypocritical study of law in the same way that it is hypocritical (but important) for a pro-life judge to follow the holding of ROE v.WADE (p.15). But lower court judges and students of law have different obligations. Wright’s plea runs counter to most of the political science and law and society scholarship of past generations, which embraces Cuzzo’s view that “there is deep value in observing, naming, critically evaluating, and attempting to solve [the gap between what the law says and what it does] rather than hiding behind the false belief that there is no gap at all” (p.15).

The challenging nature of the readings – both form and content – make this volume unsuited for most lower-level students. For upper-level classes, where a goal is sustained inquiry into the possibility of an internal view of law, and challenges to it, THE LEGAL STUDIES READER is an option.

CASE REFERENCES: [*738]

ROE v. WADE 410U.S. 113 (1973).

*****************************************************