Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug
Chapter 31: Law as a discipline: Legal theory, interdisciplinary legal theory, and ways of speaking legitimacy to power
The essay examines the debate about whether law is a discipline, framed typically in the United States as social science on one side, and legal formalism on the other. It argues that the dichotomy is misleading, because the reigning version of legal theory in the United States, even in the most interdisciplinary law schools, insists on an evolving combination of legal normativity and social science. The legal formalism does not go away and is part of what keeps social science in law schools from being dismissed as “merely descriptive” and “untheoretical.” The essay notes that if we look to other countries, legal formalism is also the key to legal theory – or legal science as termed on the Continent. There are very different models, but they all can be traced to the origins of the legal profession and legal education in the medieval era. The US version of legal theory is currently ascendant in global competition because of the power and prestige of the US, which we naturally celebrate from a US perspective, but it also brings a relatively conservative model of law and social change and a relatively weak model of the state.
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