Al’s recent post highlighting Mary Bilder’s article on Madison as lawyer versus Madison as political theorist reminded me that the connections between these two enterprises are not always self-evident. Political theorists occasionally glaze over when I talk about “the law,” and their ambivalence turns to incredulity when I mention that legal scholarship remains largely without peer review. Conversely, some legal academics scratch their heads when I attempt to distinguish political theory from political science. They’ve seen the latter. It reminds them of law and economics and uses a lot of math. But political theory? Why does someone need a graduate degree to read Locke or write about Aristotle? While there is some merit to each of these critiques, a number of well-regarded law professors do have formal training in political theory, and their scholarship (as well as scholarship from some political theorists who write about the law from within other disciplines) contributes meaningfully to conversations in academic law.
In this post, I want to offer three brief observations about the role of political theory in the study of law. (I should clarify that I am addressing political theory rather than political philosophy or legal theory. I don’t actually think these distinctions are all that meaningful—better to think of the three labels as a Venn diagram—but my graduate work in political science hovered around political theory.).
1. Substance. Political theorists draw upon a community of scholarship that has reflected upon the nature of law, the nature of politics, and the relationship between the two. Some law professors acquire a similar knowledge and understanding without graduate training (just as some law professors teach themselves calculus and game theory). But many do not—the demands of specialization in the legal academy often leave little time for these kinds of pursuits.
Some core political theory is familiar to law professors: Aquinas, Hobbes, Locke, and Madison, to name just a few. Not far away is the towering figure of John Rawls, whom I suspect continues to influence legal education even though most law students never encounter his work directly. (Most of the second and third year law students in my Religion and Democracy seminar had never heard of Rawls prior to reading his "Public Reason Revisited" essay for my class.)
I spent much of my time in graduate school examining questions about the legitimacy of the state and the law through theorists like Sheldon Wolin, William Connolly, and Rom Coles. Their insights have aided my writing and teaching about the law. But contrary to some perspectives in law and political science (highlighted recently in this thoughtful exchange between Dan Solove and Larry Solum), much political theory still takes seriously the claim that law and legal interpretation are coherent practices.
2. Method. Political theory today sometimes seems like the crazy uncle of political science, the one that everybody tolerates but nobody really takes seriously. But while most law-related articles in the American Political Science Review contain more equations than sentences, there was a time not that long ago when this distinction between political theorist and political scientist was less pronounced. Political science as a discipline was more coherent and offered richer insights about the law when empirically minded political scientists dialogued with their theorist colleagues.
Some contemporary scholars like Keith Whittington, Ian Shapiro, and Jack Knight have worked to bridge the interdisciplinary and intradisciplinary challenges of political science approaches to law. Yet the tension between political theory and political science remains. As Ruth Grant observed in her essay "Political Theory, Political Science, and Politics": “[t]he practical problem is that political theorists do humanistic work in a social science discipline.” And “whereas the sciences are primarily concerned with knowledge of cause and effect, the humanities are primarily concerned with understanding of meaning and judgment of significance.” We need both. We can’t “abdicate judgment,” and the only alternative to pursuing unavoidably normative inquiries is to “judge badly and without reflection.” Grant adds:
The distinctive contribution that political theory can make to the study of politics depends on its continued devotion to the humanistic questions as they arise in political life. And that, in turn, depends on its continued attachment to its historical and philosophic dimensions. . . . We need to understand better the historical paths that brought us to where we are today in our political conceptions, and we need to know how the recovery of alternatives embedded in the historical past might help us to judge and to interpret our current circumstances.
There are obvious implications for our study of the law.
3. Perspective. Political theory and law complement one another. Law reminds the political theorist in me to draw conclusions and ground philosophically oriented reflections in the concrete decisions that underlie legislation and judicial opinions in which there are real winners and real losers and some people lose their property and some people go to jail and some people die. Political theory invites the legal scholar in me to apply a healthy dose of skepticism to the texts that I encounter and the claims of authority that they purport to establish. It asks me to tie legal doctrine and judicial opinions to deeper questions, contexts, and values. It keeps on the forefront of my mind some of the insights of those who have reflected about these matters: that the personal is the political, that the boundaries of public and private are vexing and dynamic, and that contingency and serendipity pervade our thoughts as well as our emotions. Political theory doesn’t have any parochial claims to these insights; indeed, they can be found some of the best legal scholarship. But reading theory is different than reading law. Theory examines the march of reason, emotion, and imagination unblemished by the messy details of facts and litigants and judges. I would not want the former without the latter, but sometimes setting the facts aside to enter the realm of theory—even temporarily—clears the mind sufficiently to return to the task at hand. This kind of clarity isn’t easily attained—I, for one, do not always see the horizon come sharply into focus. But it is the aspiration of the lawyer as theorist and the theorist as lawyer.