Legal Theorists Have Much to Learn From Other Fields

This essay is a response to two essays published earlier this month, by Paul Gowder and Noah Feldman respectively.

In the 1980s and ‘90s, some scientists took exception to the idea that their community — its practices, texts, social norms, and especially its claims to knowledge and authority — could be treated as an object of study. Multidisciplinary endeavors such as the Sociology of Scientific Knowledge treated scientists as communities of anthropological, historical, and sociological interest. The society analyzed scientists’ behavior and social interactions; it was agnostic about whether their claims to knowledge were right or wrong. This represented an evolution from earlier approaches to the history and philosophy of science, which were often committed to explicating or fortifying the fruits of scientific discovery.

The society and other forms of science and technology studies were derided as “postmodern” and antiscience. At a time when an astrologer was on speed dial at the White House and creation science was given “balanced treatment” in schools, scientists implied that it was disloyal of their colleagues across the quad to undermine their role as defenders of expertise.

Like science, legal scholarship is a specialized knowledge community that vigorously defends a distinction between insiders and outsiders. But — to borrow from the subtitle of one of the most important books in science and technology studies, Steve Shapin’s Never Pure — law, like science, is “produced by people with bodies, situated in time, space, culture, and society, and struggling for credibility and authority.” That’s where the study of law and society enters the picture.

Over 100 years ago, the sociologist of law Eugen Ehrlich wrote that “the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” Writing in the Stanford Law Review nearly three-quarters of a century later, Lawrence M. Friedman described a “law and society movement” composed of a range of humanistic and social-scientific disciplines that “share … a general commitment to approach law with a vision and with methods that come from outside the discipline itself; and they share a commitment to explain legal phenomena (though not necessarily all legal phenomena) in terms of their social setting.” Scholars involved in this work are certainly not ignorant of the fact that lawyers “operate with laws written down in texts,” as Paul Gowder put it. Some even have legal training. But the field of law and society is pluralistic and examines more than just the written laws. It approaches “society itself” through history, economics, anthropology, literature, linguistics, and philosophy, as well as sociology.

Just as science and technologies studies treats the practice of science in terms of its own research questions, the field of law and society need not restrict itself to the service of explicating the law or assisting the work of legal scholars. Scholars of law and society might not take the words of jurists at face value, and they will often suggest that there is context beyond the laws written down in texts. It is not the case that only those trained in the law are competent to speak about society.

To law and society’s disciplinary buffet we should also include religious studies. The U.S.’s ethos of publicly expressed faith and ritual and the country’s reliance on religious (often Christian) iconography and archetypes to frame its civic life mean that few aspects of its history or politics can be understood without taking religion into account.

In itself, this is not a radical claim. Indeed, Noah Feldman’s scholarship exemplifies engagement at the intersection of religion and the law. But religious context may be especially helpful in understanding the growing influence of U.S. constitutional originalism — both within the ranks of judges and legal scholars, and as an associated political movement meant to appeal to religious communities en masse and to individual voters whose preferences are religiously motivated. An article published this month, for instance, examines the effect of school desegregation on the rise of originalism — which is especially noteworthy, given the fact that the same issue galvanized right-wing Christian political activism.

It’s possible to show, by analogy, how constitutional literalism, as both a form of textual interpretation and as a political identity, can be both internally coherent and supported by people acting in good faith. Scholarship in history and linguistic anthropology suggests that American biblical literalism is not merely a clarifying analogy to guide our understanding of literalism, but that there is an intellectual and social lineage that connects the two — as shown by the political growth of Christian Reconstructionism.

An appeal to a notion of “original public meaning” — while clearly important to practitioners of law — offers little by the way of explanation of what scholars of science and technology studies call the “context of discovery.” In science studies, it’s not uncommon to observe instances of scientists acting irrationally, influenced by personal circumstances and social bias. Scientific discoveries and theories are subsequently expressed in (seemingly) neutral, objective, and secular language that purges particularistic details of discovery or inspiration. It’s in that linguistic transformation that ideas can become scientific. To say that there is a secular, logical, coherent and honestly intended formulation of originalism may suffice for practicing legal scholars. To observe that there are debates and arguments against originalism within the legal profession is instructive as an object of study. To scholars in other fields, these data are useful but may be neither necessary nor sufficient in answering questions about how originalism functions as a cultural and political entity.

And this is crucial. Originalism as a legal doctrine and as a political goal are in fact inseparable. The confirmation process is a political process, performed before the public, acted out by nominees, witnesses, U.S. senators, and staff members who, in fact, have bodies, are situated in time, space, culture, and society, and struggle for credibility and authority. Lawyers very likely wouldn’t cite Amy Coney Barrett’s testimony in a brief to the court or an oral argument, but Barrett’s presence on the court is the consequence of how her expression of those legal principles is heard and acted upon. Sen. Ted Cruz and Mike Pompeo, the former secretary of state, may not be, as Gowder says, “serious participants in the scholarly or judicial conversations about constitutional interpretation,” but as possible presidential candidates in 2024, and as politicians whose supporters constitute a sizable voting bloc, their views of the Constitution may matter much more than those of the greatest legal minds in the academy. To pretend that they are irrelevant is to reduce legal scholarship to a purely internal academic exercise.

Friedman’s 1986 essay, in fact, compared the field of law and society with the academic study of religion. “It is no part of their business to decide whether this religion, or this dogma or belief, is true or false, moral or immoral. Religions are systems of beliefs and behaviors that rest on faith, tradition, emotions, moral postulates. They can also be studied as aspects of life in society. The same is true of legal systems. They can be studied as social phenomena, without passing judgment on their normative content.” As a historian, I can discuss how self-identified biblical literalists understood their interaction with text without praise or condemnation. I can discuss how religious teachings and beliefs inspired scientists, perhaps shaping the kinds of discoveries they made. And I can discuss how religious reading practices influenced legal thought. These are social phenomena that can and should be studied.

Likewise, to say that originalism owes some of its intellectual history to the evolution of 20th-century American biblical literalism, or that some of the strongest political support for placing originalists on the courts comes from religious communities who regard the Constitution and U.S. history through a theocratic lens (even if the jurists they appoint do not share that religious vision) — these are methodologically valid observations. To call them “guilt by association,” as both Gowder and Feldman do, suggests that they are being mistaken for normative judgments. To historicize originalism is not to evaluate its legal or philosophical validity.

A generation ago, scientists told science-and-technology-studies scholars that their observations and conclusions were meaningless if they weren’t also trained participants in the sciences. The scientists felt that the science-studies scholars’ work damaged their efforts to project the disciplinary power needed to settle debates within their field. Taken at face value, the clash between scientists and scholars was a debate about disciplinary boundaries and claims to knowledge. But scholars on both sides were also situated in time, space, culture, and society, and struggling for credibility and authority. An outside observer of the “science wars” might recognize them as an expression of the shifting balance of power and authority between the humanities and STEM fields.

From the perspective, of money, prestige, and institutional presence, it’s obvious which side won the science wars. But decades later, the matter is less clear. A new generation of scientists is using the insights of science and technology studies to raise normative questions about how to make its work more credible, more equitable, and more sustainable. It’s not new for humanists and social scientists to be attacked because a better funded and empowered discipline dislikes the fact that their very ability to influence society makes them worthy objects of study. But it’s counterproductive. Humanists can certainly learn from their colleagues trained in the law. But such a conversation cannot be successful if it is valued only when it offers something of immediate interest to legal theory.