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Wednesday, November 18, 2009

Republic of Legal Letters

What might legal academia become?  The question is complicated and admits of many compossible answers.  Dean John Garvey last year suggested just such a plurality of orientations ("models" is too rigid, I think), and it is fair to say that there are very different views in circulation about the direction that legal academia might take -- more "practical" or "responsive" to the stresses that economic difficulties have placed on the practice of law, or more interdisciplinary, or less so, or more "student-centered," and so on.  So to ask the question is really to ask what might be a path of becoming, and any credible response, especially from a rookie like me, must be modest enough to hope that the path proposed will perhaps have only partial appeal. 

Here is a direction, then, inspired by a delightful book by Anthony Grafton called, "Worlds Made by Words: Scholarship in the Modern West."  Grafton's series of historical portraits is a pastiche of what he calls, "The Republic of Letters," an association or fellowship of intellectuals extending through time and bound together by the written word and the sociality that comes with the perpetual exchange of ideas across generations.  The Republic of Letters, Grafton writes, "reached its natural end in the late eighteenth century, but the life of scholarship did not."  Can there be, today, a Republic of Legal Letters?  Can it be an orientation for legal academia -- a path of becoming?  It already is.

In order to imagine what a Republic of Legal Letters might resemble -- what its defining characteristics would be -- it may help to describe those qualities of the legal academic that would be most crucial to create and sustain it. 

But describing the law professor is challenging.  It is difficult not primarily because of the familiar dichotomy – “practitioner or theorist?” – that arises so often when the law professor’s nature or essence is sought and debated.  Rather, the trick of it lies in the view that a single law professor ought to be both practical and theoretical – both a supple doctrinalist and an able interdisciplinarian, both concerned with “training lawyers” and with scholarly pursuits at a great distance from that training, both invested in law as an ever-present quotidian engagement and intrigued by law as the object of academic study ab externo.  When law schools set to their hiring duties, they are seeking a hybrid creature.  Rick Hills at one time on this page described this beast as an amphibian, someone with the facility to acquit herself as well on practical land as in the theoretical deep.  But perhaps a truer image is that of an actual hybrid animal – a lady Amherst pheasant, say, or an Iron Age Pig – a creature in some ways at war with itself.

Is the quality of being an intellectual part of what hiring committees, and law faculties, seek?  Is a law professor an intellectual?  The question screams for an explanation of what an “intellectual” is, since it is the sort of term that is notoriously difficult to pin down, and is liable to generate more heat than light.  In order to sketch its meaning in the context of describing the path I have in mind, it may be easier to begin with what an intellectual is not (at least so far as I am interested in it here). 

By intellectual, I do not mean “public intellectual.”  In his study of public intellectuals, Judge Posner says of them that they are “intellectuals who opine to an educated public on questions of or inflected by a political or ideological concern.”  Posner’s concern here and throughout his book seems very much to be with the “public” facet of the public intellectual; intellectualism, whatever it is, is a secondary matter for him.  “[I]ntellectual quality,” he writes, “may not even be the most valuable attribute of public intellectuals.”  Indeed, it becomes clear later in the book that for Posner, publicity and intellectuality are closely related: “The reader may begin to sense a certain redundancy in the term ‘public intellectual.’  Not only is ‘public’ of the essence of the most common understanding of what an ‘intellectual’ is (‘a thinker with a public voice’), but part of that understanding is that the thinker writes for a broader audience than the scholar, the consultant, or the professional does.”  Russell Jacoby’s earlier and rather more positive picture of the public intellectual is likewise useful in distinguishing the intellectual simple from the public intellectual.  Jacoby’s American public intellectual of the mid-twentieth century congregated with like-minded bohemian gad-flies in urban centers, establishing little generalist periodicals of modest circulation addressing all of the great social issues of the day with a kind of supercilious earnestness, in the hope of changing public opinion, if only in fits and starts, by right-minded opinion-making.  And whether one chooses, like Posner and Jacoby, to write declinist histories or instead to offer a more optimistic view, the public intellectual emerges as a period piece whose qualities are very much dominated by the aspiration to reach a very broad public – to communicate, express views, and substantially influence educated public opinion (rarefied though the targeted public may be) -- to get one's views "out there" for public consumption. 

I also do not mean by intellectual anyone with a scholarly interest of whatever type.  That would be too broad a definition.  All law professors have some type of scholarly interest.  All are at least moderately excited by ideas and interested in expressing those ideas.  Likewise, an appreciation for “the life of the mind” is too vague a phrase to be much help, since I take it that appreciating or at least respecting “the life of the mind” is the sort of thing that no academic would oppose.  One need not be an intellectual to appreciate “the life of the mind” (though all intellectuals do).  And I also agree very much with Posner that intellectual is not synonymous with intelligent: one can be intelligent in many sorts of ways that have little to do with intellectualism.

There are three qualities that, in conjunction, are distinctive to intellectualism and that I want to claim are requisite for the existence and sustenance of a Republic of Legal Letters. 

First, the desire for continuing cultivation of knowledge coupled with the inclination to connect that knowledge to one’s existing reservoir -- ideas in mutiple domains shaping one another; second, the belief that ideas are valuable for their own sake, on their own terms and without regard to their consequences; and third, the desire to be part of an existing tradition and social universe in which others cherish these qualities -- the connection to and enjoyment of the sodalities and sociability of like-minded thinkers.  For the intellectual, the attraction of ideas is nearly aesthetic.  Continued cultivation is wanted in order to live more richly and intensely, and in ever-increasing layers of complexity and sophistication, within the world of ideas and to establish friendships with those who inhabit that world. 

In thinking about a Republic of Legal Letters, it is especially the last quality that I think is crucial, and that is evoked so beautifully by Grafton's book.  To write scholarship is often portrayed as a lonely, or solitary task, in which the scholar writes in "isolation."  But for the member of the Republic of Letters, that does not seem an accurate description at all.  That scholar yearns for the fellowship of other minds -- writing is itself a social activity because it is a contribution to the society of like-minded intellects, like-minded in that they really do like, they enjoy, to be a part of the confraternity of other souls whose principal concern is with the history and/or development of ideas.

Scholars of the law, now and in the future, are well-suited to forge this sort of republic.  The convergence of academic fields that is more and more manifested in legal scholarship is just the beginning.  This convergence has expanded and will continue to expand the republic, as greater and greater numbers of 'ideas-people,' across disciplines and cultures, will join, fusing disciplines to create new sub-disciplines.  The buzz of ideas, and the friendship and society that they will create, will be a thing to behold.

Will the expansion of the orbit of legal scholarship make space for more work in the history of legal  ideas?  Here is Grafton on the future for the history of ideas: "As historians celebrate a partial but powerful convergence with philosophers and other humanists, as intellectual history expands to confront new objects of study . . . it has become clear that [A.O.] Lovejoy built extremely well.  The crossroads he laid out and paved remains a central and attractive meeting point for many disciplines.  And the history of ideas . . . has proved resilient, even expansive, through multiple transformations of the disciplinary fields at whose borders it resides."  (213).

Law is situated at that crossroads -- if not at dead center, then right nearby.  The Republic of Legal Letters is already under way, and it is one future -- certainly not the only one, but a possible and (to me) an attractive one for legal scholarship.


Posted by Marc DeGirolami on November 18, 2009 at 11:15 AM | Permalink


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