The Cultural Study of Law: Reconstructing Legal Scholarship. (Book Reviews: Legal Anthropology)
Roberts, Simon, Journal of the Royal Anthropological Institute
KAHN, PAUL W. The cultural study of law: reconstructing legal scholarship. x, 169 pp.' London, Chicago: Univ. Chigago Press, 1999. [pounds sterling]21.95 (cloth)
Throughout the twentieth century, commentary on the decisions of superior courts represented the dominant mode of scholarship in Anglo-American law schools. As the long -- often very long -- contributions to contemporary law journals on both sides of the Atlantic reveal, this commentary mode continues to flourish, adhering closely to discursive conventions shared with legal practitioners. Appropriately, jurisprudence - the theoretical wing of legal scholarship -- has attended virtually exclusively to adjudication. On the periphery, the last three decades saw some broadening of the social field a few academic lawyers aspired to keep under observation, and a corresponding enlargement of the theoretical resources upon which they were prepared to draw. Under the leitmotif of 'legal pluralism', these scholars turned attention from the rules and institutions of state law to those of a wide range of normative orders ('customary law', 'global law', 'cosmopolitan law', etc.). In legal theory there have been tentative, parallel steps to revive a 'general jurisprudence'. These imperial initiatives have yielded various anthropologies and sociologies of law, as well as a thriving 'law and economics' literature. At the same time, there has developed some recognition of the formidable difficulties which law's history in 'the West' -- latterly its close association with the growth of the nation-state and the evolution of a legal profession -- present in achieving any distanced account of 'modern' law.
The introspective nature of the dominant tradition in legal scholarship goes some way to explaining why these marginal shifts of focus receive little attention from Paul Kahn, a Yale law professor, in The cultural study of law. Aspiring to a distanced examination of the rule of law, Kahn notes the obstacle presented by the shared agenda and methodology of practitioners and academics, revealed in the commentary mode. 'The independence of the discipline will never be possible unless the understanding deployed in theoretical enquiry can be distinguished from the reason employed in legal practice' (p. 18). Presently, the legal scholar is disabled, like the Anglican clergyman wanting to study Christianity: '[T]aking up the project of legal reform ... the scholar becomes a participant in legal practice and, therefore, a part of the very object that he or she sets out to investigate' (p. 7). To escape this predicament, Kahn proposes the need for a 'new discipline of law' (p. …