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Friday, August 07, 2009

Does Legal Scholarship Have Any International Rock Stars?

Occasionally in my research I happen upon a book or article written by a legal scholar from England, Australia, or Canada that is germane to my own research. The author is often someone I have never heard of and that I have not (that I remember) seen cited elsewhere on the topic.

Now, this may just be a confession of my own parochialism, but it occurs to me that there is very little dialogue or cross-pollination in legal scholarship, even among the Anglophone, common-law countries. I probably couldn't even tell you if there are any "big names" in legal scholarship in my field from other countries.

Of course, there may be reasons for this in certain fields (i.e., legal doctrine in certain areas may be so different across different countries that the legal scholarship of other countries simply isn't useful), and it just may not hold true in other fields (is international law more international? Or comparative law?). But in my area of scholarship -- constitutional law -- there is no reason in principle why scholars from other countries may not have something useful to say to us, particularly since many of their constitutional provisions are similar to ours. I am not talking about doing "comparative law" as such. But there is no reason we can't benefit from the scholarship of international (or at least British, Australian, etc.) scholars on, say, the philosophical underpinnings of the constitutional guarantees of freedom of speech, or of religious freedom, or whether the right to choose abortion should be grounded in notions of privacy, equality, or something else. Yet that scholarship is exceedingly unlikely to come to our attention unless the author publishes in US law reviews or perhaps spends time teaching and visiting in American law schools.

The only exception I can think of is with respect to bona fide "legal philosophers" - think Ronald Dworkin, Joseph Raz, Jeremy Waldron - but even those folks have spent a lot of time teaching in the US. Is it time for legal scholarship to become more wordly? At least among those of us who think the Supreme Court is being small-minded when it refuses to look at judicial decisions from other countries? Or are the practical barriers (access to the scholarship, sheer quantity of reading material) simply too great?

Posted by Jessie Hill on August 7, 2009 at 11:18 AM | Permalink

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I am willing to believe that the parochialism runs in only one direction (and some of the parochialism is apparently mine alone). In fairness, I (unscientifically) ran Westlaw searches of a random selection of some of the names mentioned in other posts, and they do get cited some in U.S. law journals, but only a small number of those cites are not in international or comparative law journals.

Posted by: Jessie Hill | Aug 8, 2009 5:55:53 PM

As someone with a U.S. law degree who teaches in the U.K. this division, which is predominantly the U.S. versus everywhere else, does rather stand out to me. From my own experience one thing that underlies it might be the different approaches taken to legal scholarship in the U.S. and elsewhere.

That is, people here routinely look down on U.S. law review scholarship (e.g. as bloated, repetitious and undisciplined), and beyond the reviews from the most famous schools (Harvard, Yale, etc.) often refuse to even look at scholarship from law reviews. In turn I've known more than one U.S. academic critise non-U.S. scholarship, published in shorter, more traditional articles, as overly narrow and docrtinally-obsessed.

Obviously this is not a uniform truth, and there are people who happily read all sorts of articles from all sorts of places. But there is certainly a good deal of prejudice based on the different approaches to legal writing that have developed in the U.S. and elsewhere.

Posted by: Tony Cole | Aug 8, 2009 4:48:26 PM

Richard Goldstone has published extensively on human rights and taught at many American law schools, in addition to his continuing public functions.

Posted by: Jill Goldenziel | Aug 8, 2009 4:20:29 PM

How about some of the older Brits, like Frederick Pollock and his contemporaries?

Posted by: Martinned | Aug 8, 2009 9:53:13 AM

I don't think it is at all true to say that there is little cross-pollination or dialogue among Anglophone common-law jurisdictions. Its just that the US tends to stay out of it. There is a lot of scholarly interaction between England, Canada, Australia and New Zealand (where I am from). One reason is because English (in particular), Canadian and Australian precedents are commonly cited by courts, since the common law is similar in these jurisdictions. This holds true in constitutional law as well.

As for rock stars, in the field of constitutional law (including administrative law, since this is widely considered part of constitutional law here), there are some very famous names in these jurisdictions. Professor Peter Hogg is easily Canada's most famous constitutional law scholar (though, I'm pleased to say, he's actually New Zealand born). In England, there is Professor Jeffrey Jowell QC, David Feldman (the Rouse Ball Professor of English Law at Cambridge) and Andrew Ashworth (the Vinerian Professor of English Law at Oxford, who is mainly a criminal law scholar, but has also written extensively on human rights in the context of criminal procedure). All of these names are well known to constitutional law scholars in New Zealand. Similarly, leading New Zealand scholars in the area, such as Professor Philip Joseph, have published in leading journals in England, Australia and Canada.

Posted by: DNJ | Aug 8, 2009 1:29:25 AM

Gunther Teubner - renowned for his work in Niklas Luhmann's theory of autopoesis.

Pull out the list of attendees at the Law & Society Association meeting at Humboldt University in Berlin in 2007. I'm sure you'll pull out another several rock star names.

Posted by: Jeff Lipshaw | Aug 7, 2009 5:59:17 PM

Legal scholarship is fairly provincial and parochial, in keeping with geopolitical history and national legal systems. Of course the latest form of capitalist globalization is changing things, as is the consolidation or entrenchment of international institutions, an emerging global civil society, as well as transnational legal processes and structures that serve as centrifugal forces (in relation to the existing centripetal forces of nationalist and local politics as well as expressions of collective or cultural identity). What is more, disciplinary cognitive imperatives across all intellectual fields, including legal ones, "is generally in the direction of greater complication and sophistication." Nicholas Rescher elaborates:

"[The] ongoing refinement in the division of cognitive labor that an information explosion necessitates issues in a literal dis-integration of knowledge. The 'progress of knowledge' is marked by an ever continuing proliferation of ever more restricted specialties marked by the unavoidable circumstance that any given specialty cell cannot know exactly what is going on even next door--let alone at significant remove. [....] The emergence of new disciplines, branches, and specialties is manifest everywhere. As though to negate this tendency and maintain unity, one finds an ongoing evolution of interdisciplinary synthesis--physical chemistry, astrophysics, biochemistry, [law and economics, behavioral economics, neuroethics and law...], and so on. The very attempt to counteract fragmentation produces new fragments."

Rescher further illustrates this phenomenon with the natural sciences, but he could have easily chosen examples from the social sciences and humanities:

"The expansion of the scientific literature is in fact such that natural science has in recent years been disintegrating before our very eyes [cf. the entries on the various branches or sub-fields of physics in the Stanford Encyclopedia of Philosophy]. An ever larger number of ever more refined specialties has made it ever more difficult for experts in a given branch of science to achieve a thorough understanding about what is going even in the specialty next door."

The irony or paradox here is that the oft-cited complexity of the contemporary world appear to demand that we integrate and synthesize our cognitive efforts so as to get some sense of the proverbial big picture, for the issues and problems we endeavor to understand are equally complex. Thus not surprisingly, these selfsame issues and problems are increasingly intractable. In other words, the "contexts of application" of our cognitive endeavors are of necessity transdisciplinary in a period when professional disciplinary socialization is increasingly specialized, diversified and fragmented.

With regard to your field, there is a growing literature on "comparative constitutionalism" but I think it's true that unless one is working in comparative law or international law as such there will be little if any exposure beyond (Anglo-?)American boundaries.

As it has in fact over the last fifty years or so, legal scholarship will to some degree become more "worldly" as economic, political and legal phenomena and structures themselves take on a more transnational and global character.

To add to your roster (from international law, criminal law, contract law, Islamic law...): the late Neil MacCormick, William Twining, Martti Koskenniemi, Dame Rosalyn Higgins, Aharon Barak, Patrick S. Atiyah, R.A. (Antony) Duff, Abdullahi A. An-Na‘im, Werner Menski, Khaled Abou El Fadl, M. Cherif Bassiouni, William Schabas...these all come quickly to mind but there are certainly others well known "internationally"...

Posted by: Patrick S. O'Donnell | Aug 7, 2009 2:16:41 PM

There are a bunch of fantastic private law folks from Israel who publish here and get attention. Alon Harel, Ehud Guttel, etc. Going back a bit, I believe HLA Hart never had the US connection that Dworkin did.

Posted by: anon | Aug 7, 2009 12:59:33 PM

Ronald Dworkin is pretty well known internationally. It's interesting, though, that he's not a "pure" law prof.

Posted by: C.E. Petit | Aug 7, 2009 11:27:17 AM

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