The Contested Value of Normative Legal Scholarship

Abstract

Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.

In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it.

After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be normative. And to the degree that justice is itself a product of our passion, it must also, therefore, be impassioned. This form of legal scholarship has great social value. It quite often influences not only our law, but also our political environment and the world of ideas in the university. Further, it’s not done anywhere except in law schools. If we forgo this work, our worlds, not only the legal world, but our social and cultural and political worlds, will be the worse for it.

Keywords: Anti-Normativity, Normative Legal Scholarship, Legal Scholarship

JEL Classification: K00, K10, K19