International Legal Scholarship and the Lack of a Canon

International Legal Scholarship and the Lack of a Canon

Interesting exchange between Larry Solum and Orin Kerr on whether teaching hurts scholarship. Here’s Larry’s point (which was in response to a more general post by Stuart Buck):

Young scholars spend enormous amounts of time on the “canon,” the cases and rules that are in their casebooks. And so it is hardly surprising that many of them end up writing about the core canon–frequently with the result that their scholarship is derivative and repetitive. In many law school subjects, the core has been examined from every possible angle on multiple occasions over a period of decades; that makes it very difficult to say something new about the material that is in the casebook!

I think there’s something to this, but I wonder if Larry isn’t working from the problematic, implicit assumption that there always is a canon. That varies from field to field and discipline to discipline, and would seem to me the crucial variable, not the generational one. (Orin is right on this score to wonder whether “younger faculty are more likely than senior faculty to end up writing about materials covered in casebooks.”) Insofar as an area of law has a thick body of received wisdom, it’s going to be harder to say anything new. This really doesn’t have anything to do with teaching, although if you’re teaching a subject you are going to be more likely to be imbued with that received wisdom than if you aren’t.

But it does point to the advantages of writing in a field that is moving to the center stage after a period on the margins. In that context – very much the case with international law – there’s less to constrain creative thinking. There isn’t a canon in international law, or at least it’s a very thin one (or alternatively a thick one under impossible and obvious stress), and it means that anything goes. Teaching can’t help but be a plus in that case, because you get the raw materials without the strictures of received wisdom. Teaching IL almost begs the teacher to come up with her own organizing principle; it forces you to think from scratch. And where there’s less of a canon, it’s less likely that there are powerful individuals who have a vested interest in it and who are looking to enforce orthodoxies through appointments and tenure decisions. This also allows for more imaginative and foundational scholarship (in a way that does have generational implications).

This possibility applies on a disciplinary basis as well. Some of the most interesting writing on global affairs these days is coming out of anthropology and sociology, disciplines which had been laid to waste during the 70s and 80s. Contrast that to political science, in which well-established models are parsed and parsed some more, sometimes blinkering reality in the process. That’s not to say that there isn’t interesting stuff being written in political science, but I think it’s probably tougher as a political scientist to break loose and make a mark as a junior scholar.

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Chris Borgen

Very interesting post, Peter. I was particularly struck by the following quote: But it does point to the advantages of writing in a field that is moving to the center stage after a period on the margins. In that context – very much the case with international law – there’s less to constrain creative thinking. The part that caught me was the (I assume unintended) echo of something John Yoo said about the Hamdan decision: that the Supreme Court was stifling creative thinking. Personally, I found that to be ridiculous. Rejecting John’s reading of the Geneva Conventions isn’t about stifling creative thinking but upholding the rule of law, to the extent that we cannot “creatively” interpret ourselves out of our own legal obligations. National Security Law–the law school course and the area of practice–seems to me to be another field of law (besides International Law) that is coming to center stage after being on the margins. But even when something is on the margins, there are still generally accepted interpretations of law, as the Supreme Court made clear. Creative thinking is important for all lawyers but we also have to keep a steady eye on what the law actually is… Read more »

Peter Spiro
Peter Spiro

Chris, I agree completely. Not all creative thinking is good thinking. And not all creative thinking (even if good) has any business being applied as policy.


Professor Spiro, I think your last paragraph is largely on target: political science has long been crampled by its comparatively small set of theories and models (cf. Ian Shapiro’s critique; and the numbers-crunching problem persists here), while anthropologists and sociologists appear far more willing to deviate, explore and and experiment with ‘what works,’ letting the data play a larger role in crafting models and hypotheses rather than letting the theory or model overdetermine or unduly constrain the evidence. I find much of the literature in political science tedious if not boring and quite predictable in its conclusions (although there’s some good stuff in the more traditional ‘political theory/philosophy’ genre). It seems anthropology and sociology have established practices of methodological and theoretical reflection that are taken quite seriously as part of professional socialization into their respective fields, commencing with their disciplines’ leading lights: Durkheim, Weber, Mauss, Malinowski, Merton, etc., etc. The salutary effects of such reflections may account for something here by way of the differences with political science, in which young scholars seem to spend more time learning what the field’s dominant methods and models are and how to employ them (more authoritarian in approach?), rather than critically examining those… Read more »



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