Legal scholarship: a discipline in transition

Citation

Chynoweth, P. (2009), "Legal scholarship: a discipline in transition", International Journal of Law in the Built Environment, Vol. 1 No. 1. https://doi.org/10.1108/ijlbe.2009.41101aaa.001

Legal scholarship: a discipline in transition

Article Type: Editorial From: International Journal of Law in the Built Environment, Volume 1, Issue 1

The servant of the legal profession

Legal scholarship was once famously described as “unexciting, uncreative, and comprising a series of intellectual puzzles scattered among large areas of description” (Becher, 1981, p. 111). Although perhaps always a harsh and provocative analysis, it nevertheless said much about the dominant paradigm within legal scholarship at the time it was written.

Law, as an academic discipline within universities, has traditionally seen itself as the servant of the legal profession. This has tended to generate scholarship that replicates the professional work, and the underlying assumptions, of its practitioners. Until comparatively recently, this was therefore largely confined to what is variously described as the expository, doctrinal or black-letter tradition: the systematic categorisation and analysis of legal sources with a view to expounding the “correct” interpretation of the law in particular contexts.

This focus on the needs of the legal profession has also restricted the range of topics which legal scholars have traditionally been willing to embrace. Twining (1994, pp. 16-17) noted that several areas of legal practice, including construction law, rent review, and commercial arbitration, have therefore received little sustained scholarly attention because they are generally practised by those in other professions rather than by lawyers.

Not surprisingly, this introspective approach, which has largely ignored the wider needs of society as well as the methodological conventions and expectations of the wider academic community, won few friends within the academy. Twining (1994, p. xix) described law as having become “isolated from mainstream academic life because of its peculiar history” and the opening words at the start of this editorial are certainly more charitable than Becher’s observations about the personal traits of legal scholars themselves. Becher (1981, p. 111) found that they were then regarded by their peers in other disciplines as “not really academic […] arcane, distant and alien: an appendage to the academic world […] vociferous, untrustworthy immoral, narrow and arrogant.”

Although some would still recognise aspects of all of the above within legal scholarship today, times are now changing. Cownie’s (1998, pp. 54, 199) detailed study of legal academics in the UK described the field as “a discipline in transition” which increasingly regards itself as an independent academic community with distinctive values and norms which are separate from those of the legal profession.

The changing nature of legal scholarship

This long-overdue move into the intellectual mainstream has been accompanied by dramatic changes in both the form, and the variety, of published legal scholarship. Although doctrinal work remains the defining characteristic of the discipline its emphasis is now less on the immediate needs of the practitioner and far more on longer term policy and law reform considerations.

As legal scholars have increasingly focused on society’s wider needs and concerns they have become ever more willing to adopt the methods and approaches of the social sciences. This has given birth to perhaps the greatest change in legal scholarship in recent decades: the ongoing shift from doctrinal work to socio-legal scholarship whereby the role of law in society is examined from an external viewpoint, often through the collection and analysis of empirical data.

The scientist’s emphasis on theories as “nets cast to catch what we call the world” (Popper, 2000, p. 59) has also added a new dimension to theoretical research in law. Legal theory (or “jurisprudential”) scholarship is traditionally associated with the study of the general structure and underlying values of the law and this now has a practical application in helping to build the conceptual frameworks for empirical socio-legal investigations.

In recent years, the traditional nineteenth century disciplinary subject boundaries have proved increasingly inadequate in addressing the complexities of the modern world and this has generated widespread support within academia for the concept of interdisciplinarity (Klein, 1990). The adoption by legal scholars of the methods and approaches of other disciplines has therefore been accompanied by a much greater willingness to engage with aspects of their substantive knowledge bases themselves, and we have witnessed the emergence of the relatively new phenomenon of interdisciplinary legal research (Siems, 2008).

One of the most obvious changes to affect the modern world is, of course, globalisation (however, one cares to define it). The law, previously one of the most parochial of institutions in society, has not been immune from this. As legal scholars have increasingly engaged with the various external environments in which the law operates, in a globalised world this has inevitably also included their engagement with the international environment. As a result, comparative law (in all its manifestations) has now emerged from its traditional backwater and is fast becoming a mainstream aspect of much contemporary legal scholarship.

Editorial policy

The editorial policy of this journal is to support and encourage all of these changes. Its editorial objectives are not confined to one or more areas of traditional substantive law, but are defined in terms of the interaction between the law and the whole range of human activities affecting the design, management and use of the built environment. It is sometimes tempting to simplify and reclassify these objectives in terms of the reassuringly familiar substantive law labels, for example, of land law, construction law, housing law, planning law, and environmental law. But, this is to miss the point. The journal is an interdisciplinary legal journal which is defined, not by these substantive labels, but by the built environment context within which all categories of substantive law are applied.

Despite its interdisciplinary focus, the journal is nevertheless a law journal and, as such, it welcomes the submission of manuscripts taking a doctrinal approach to the subject. Law remains, at an epistemological level, fundamentally different from all other academic disciplines (Chynoweth, 2008, p. 30) and the internal, participant-orientated perspective of the black-letter scholar provides particular insights into the workings of the law and legal systems that cannot be achieved by other methods. However, as noted above, peer-reviewed doctrinal scholarship must be distinguished from the day-to-day doctrinal analysis undertake by the practising lawyer, or the practitioner journal, and this will often be through its far greater engagement with the policy issues and the potential for law reform.

The journal’s emphasis on policy and law reform inevitably means that socio-legal and empirical studies will also feature strongly within its pages. These will include perspectives not only from the established socio-legal research community but also from built environment scholars where the social science research tradition is particularly well established.

As the tone of this editorial hopefully demonstrates, the journal will take a self-reflective approach to its scholarship, and to its place within the wider academic community. In keeping with its interdisciplinary focus, it seeks to encourage a level of self-awareness within legal scholarship that has previously been lacking. If we are, to communicate effectively with those from other disciplines (and even with others from the different traditions within legal scholarship) then we must first develop an awareness of the epistemological, methodological and cultural assumptions that underpin our own scholarship, and of how these differ from those of others. Theoretical legal scholarship will play an important role in this process, as well, of course, as fulfilling a theory-building function within socio-legal research.

The title of the journal emphasises its internationalism and, in today’s world, this must surely be an inevitable feature of any scholastic journal which does not consciously seek to restrict its coverage to a single national or jurisdictional territory. Its internationalism is not therefore a self-conscious attempt to define the journal in traditional legal scholarship terms as being restricted for example, to private or public international law, or to comparative law. Rather, it is the natural and inevitable result of its stated editorial objectives and the international nature of the academic community which it serves. In seeking to develop knowledge of the law in the context of its application within the global built environment, this community will naturally draw upon legal traditions, rules and developments from throughout the world and, to that extent, it will indeed take a comparative law approach. However, in so doing, it is happy to accept Foster’s (2006, pp. 6-10) eight-fold categorisation of comparative law as encompassing a wide range of scholastic styles rather than prescribing a single-doctrinaire approach to this form of scholarship.

Papers in this issue

This first issue of the journal includes five contributions, from authors in three different countries, which illustrate the variety of approaches discussed above.

van der Heijden’s paper addresses the long-neglected subject of building regulations and develops a theoretical model for use in international comparative studies of the different styles of regulatory regime. Christudason then presents a case study of the collective sale phenomenon in strata developments in Singapore as an illustrative example of the property relativist theory in action for the benefit of policy makers in other jurisdictions. Morgan’s review of recent developments in housing law and policy in England and Wales uses the notion of “casualisation” as an analytical tool to assess the significance of the changes, and to suggest possible avenues for law reform. Prideaux and Roulstone’s paper uses a comparative study of legislative regimes for the provision of access for disabled people to evaluate the different approaches, and to guide future policy in this area. Finally, Brooker combines a doctrinal study with the analysis of empirical data in her examination of the circumstances in which it is now appropriate to use mediation as a settlement tool in construction disputes.

To return to Becher’s observation at the start of this editorial, it is certainly hoped that this journal will continue to present, and hopefully to sometimes even solve, many more intellectual puzzles of a legal nature. But his reference to large areas of description will find no echo within its pages. And, although some may regard its editorial policy as challenging, they would surely not describe it as either uncreative or unexciting.

Paul Chynoweth