AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2004 >> [2004] LegEdDig 20

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Bix, B H --- "Law as an Autonomous Discipline" [2004] LegEdDig 20; (2004) 12(4) Legal Education Digest 6

Law as an Autonomous Discipline

B H Bix

[2004] LegEdDig 20; (2004) 12(4) Legal Education Digest 6

Public Law & Legal Theory Research Paper Series, University of Minnesota Law School, 2003, Research Paper No. 02-8, pp 1–12

The ‘autonomy of law’ refers to a number of related but distinct claims: (1) that legal reasoning is different from other forms of reasoning; (2) that legal decision-making is different from other forms of decision-making; (3) that legal reasoning and decision-making are sufficient to themselves, that they neither need help from other approaches, nor would they be significantly improved by such help; and (4) that legal scholarship should be about distinctively legal topics (often referred to as ‘legal doctrine’) and is not or should not be about other topics.

It remains valuable to focus on what is distinctive to law — that it is, in most legal systems, guidance through general rules; that it may involve an interaction of law-making and law-applying institutions; and that the application of rules will be done through a judicial system that both authorises judicial law-making and has important rules of stare decisis. All of these features may contribute to a form of reasoning that is distinctive, if not entirely autonomous.

A claim about the autonomy of law could be understood in three different ways: descriptively, analytically, and prescriptively. Descriptively, the question is what level of autonomy is assumed or encouraged by current practices within a particular legal system. Analytically, the question is whether law, by its nature, either must be or cannot be autonomous. Prescriptively, one can argue that current practices should be changed to incorporate greater or lesser dependence on other disciplines, either in judicial decision-making or in legal education.

Claims about the autonomy of law are usually made in one of two contexts: (1) in legal reasoning; or (2) in legal education. For even if there is no special way of reasoning legally, decisions about what the law requires would need a knowledge of the sources of law, a set of rules, principles, and procedures that are extensive and separate from the standards and practices of other normative systems.

If there is an argument to be made for an approach to decision-making that is distinctively legal, it would likely be one that emphasised certain aspects of legal systems: institutional decision-making, a hierarchy of decision-makers, and an effort to systematise the rules. And because law is intended as a practical guide for action, there is a pressure in the interpretation and application of legal norms towards consistency, coherence, stability, predictability, and finality. Those pressures are sometimes at tension with the desire that the outcomes be fair and just. These tend to combine into rules of ‘precedent’, ‘statutory interpretation’, and ‘constitutional interpretation’. Though such rules tend to vary from one legal system to another, rough convergences can be found, and the form of reasoning can be contrasted with other social practices and social institutions that do not operate under similar constraints and pressures.

As regards the limits of legal reasoning, the American legal realists, in the early decades of the 20th century, famously fought against what they called ‘formalism’, an extreme approach to legal reasoning which depended on a strong assertion of autonomy for law. Formalism was the belief that legal reasoning was a form of logical deduction from first principles or from general concepts.

The realists argued that legal reasoning was insufficient of itself, and required supplementation by policy science. The realists tended to make two quite different claims, which were not always clearly distinguished: (1) that the reasoning of judges of their time, though it purported to exemplify autonomous legal reasoning, in fact smuggled in views from outside law; and (2) that legal reasoning can never be entirely autonomous, because of a basic indeterminacy in the meaning or application of words or rules.

The legal process school conceded many of the realists’ criticisms of formalism — that legal materials were frequently indeterminate, and that some extralegal values or norms would be required to decide many legal disputes — but argued that there was nonetheless room for a distinctively legal response to disputes. Additionally, legal process offered a picture of adjudication in which courts had discretion, but this discretion was bounded by a proper understanding of the judicial role.

In legal scholarship, American scholars have travelled far from viewing law as an autonomous discipline. Doctrinal work is still done, but it has been overshadowed by interdisciplinary and theoretical work of various kinds. Other common law countries and much of continental Europe seem to be travelling a similar path, though they are less far along it. England has its own well-developed mixture of law and sociology, known variously as ‘law and society’, ‘socio-legal studies’, and ‘law in context’. The law and economics movement is entrenched in many parts of American legal academia, and in American scholarly commentary on legal matters.

From the other side of the political spectrum, from the conservative legal economists, the sceptical ‘critical legal studies’ (CLS) movement frequently summarised its approach to law in the slogan, ‘law is politics’. CLS theorists generally accepted that the outcomes of most cases were predictable, but this was, they claimed, not because of the determinacy of the law, but rather because judges had known or predictable biases.

Legal education is relevant to questions about the autonomy of law, not only in the sense that this is the context in which forms of legal reasoning are passed on within the profession, but also because the training itself may express the forms of knowledge and decision-making that are considered distinctive for law, or at least for one particular legal system.

There is a sense of every legal system being a whole culture, with its own sense of acceptability and form: not just the priority of different kinds of authority and different kinds of arguments, but, as already mentioned, also a sense of how far analogies can be stretched and still be considered potentially persuasive.

American legal education long ago accepted the basic core of the legal realist critique. The transformation of English legal education has been more tentative and sporadic: one can find a growing number of courses which emphasise interdisciplinary work and contextual analysis, yet teaching which rarely ventures beyond traditional doctrinal analysis seems still to be far too common.

There are a variety of ways in which law is or can be an autonomous discipline. To the extent that the autonomy of law reflects only archaic jargon and outdated rules of a practice and profession with a long history, the autonomy of law is hardly worth defending or maintaining. However, a relatively autonomous discipline of law may be defensible, where law’s distinctive approach to reasoning and decision-making is understood as deriving from the type of practice law is: a behaviour-guiding practice, where the guidance is done primarily through general rules and the rules are interpreted and applied by a hierarchical court system that gives precedential weight to earlier decisions.

The idea of guidance by rules is that ultimate objectives will be better achieved when the rules are generally applied ‘formally’, as written, with little to no consideration of the short-term consequences. However, there will always be pressures to interpret rules according to the rule’s ultimate purposes and to do justice between the relevant parties. On a broader level, legal systems, like rules, probably work best when they are treated, to some extent, as a formal system, almost a kind of logic, which should be applied according to its terms and its own standards. However, legal systems in fact are intended to serve human purposes, and the pressures to serve moral and functional ends inevitably occasionally push law from its formal and formalist path.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback