Where Theory Meets Practice

by David Fontana

The series of wonderful posts on this blog about the Supreme Court’s decision in Medellin–and the energy and extent of coverage of the case even beyond this blog–remind me of an impression I have long had about legal scholarship in the United States compared to many other countries.

I am reminded of something similar to what the famous sociologist Robert K. Merton called “middle-range theory,” and how much such theories dominate the American legal academy’s approach to issues, and how comparatively rare such approaches seem to be in the legal academy of other countries.

Let me explain what I mean by all of this. By “middle-range theory,” Merton meant approaches that combined a range of theoretical concerns and actual practice and evidence. I have always thought that middle-range theory is one of the best ways of describing American legal scholarship. Cases are the empirics, but cases are framed and debated in the context of larger theoretical concerns. So, Heller, the Second Amendment case that the Supreme Court heard earlier this month, is an actual data point. But Heller will be discussed in the context of originalism, of pragmatism, of textualism, of law and economics, of history, and so on. These larger, more theoretical approaches will be applied to the doctrinal and more practical issues posed by this one specific case, Heller. So, the major names in American legal scholarship—-Ackerman and Posner and Sunstein and others—-are talking about cases and how they should be decided, but how they should be decided because of larger theoretical considerations. Many of the posts on this blog are representative of that. They talk about Medellin and the opinions in that case, but by focusing in part on larger questions about institutional relationships and the propriety of internationalism and other concerns.

This seems rare, or certainly not universal. In many countries with established bodies of legal scholarship, there are the theorists, and then separately the empiricists (or, more accurately, the doctrinalists). As one of my dissertation committees at Oxford kept asking me, “are you theoretical, or are you empirical”? Although many in the United States do not appreciate it, there is a rich tradition of theory and macro-considerations about law in other countries. There might not be the rich tradition of law and economics (the idea of law and the social sciences interacting is more recent, as seen by the relative newness of the “law in context” movement in the UK), but concerns borne more out of philosophy and political theory have much to say about law in the legal scholarship of other countries. At Oxford, there is Joseph Raz and John Finnis; Germany has Juergen Habermas and Gunther Teubner; and so on. But, by and large, if you ask them what follows from their scholarship, they would likely usually answer “merely the logical consequences.” Cases are not decided differently; statutes are not enacted; their arguments do not directly affect the empirical world of reality.

There are also (the more common) scholars who write from a much more traditional perspective, and whose scholarship involves good old-fashioned common law or civil law lawyering. Cases are compared to see if they are consistent; the minutiae of statutes are examined; and all of this is done without much concern for larger theoretical considerations.

But, at least from what I have seen in many countries, there do not seem to be a critical mass of scholars who are somewhere in between this way of thinking about this practical view of the law and the pure theory way of thinking about law. For better or for worse—-whatever your feelings are—-Merton’s middle-level theory seems to be an especially distinctive part of American legal scholarship.

Why does there appear to be this difference? I wonder what readers think about this.


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