The ‘New Two Cultures’ of Legal Scholarship: The Humanities and Social Science (A Note to Joe Singer)

Fifty years ago, in the late 1950s, C.P. Snow published that famous essay decrying the gap that had grown up in his day between the culture of the humanities, on the one hand, and the physical sciences, on the other. The professors of the humanities were ignorant of science and basic facts about the technology of their own day, and above all they were innumerate. The scientists, for their part, had very little interest in the liberal arts, in literature, in philosophy (outside of mathematical logic). It seems to me that something like this divide of the ‘two cultures’ is emerging in legal scholarship – not between the humanities and physical science, of course, but between modes of explanation and method in legal scholarship, between the humanities and social science. Call it the ‘new two cultures’.

(This has implications for international legal scholarship, but I will save that for another post, while keeping this discussion very brief.)

Start with the humanities in law. In one sense, the claim that they are in retreat is nonsense. The law and literature movement is alive and well, and all manner of specialized fields, with their own journals and conferences and scholarship. On the other hand, the fact that these humanities based methods and forms of scholarship are so much confined to their own niches is telling. It was not so very long ago that moral philosophy was considered the foundational discipline for law; economics has a strong claim to that role today. The withdrawal of the humanities and the rise of economics is in part the general story of the decline of the humanities in the university that Anthony Kronman tells in his new book; in part it is the rise of a successful new method. But despite all the talk about narrative and telling stories – and in part because of it – it is hard for me to see that the momentum of legal scholarship is favorable to humanities-based methods. There is a big debate to be had as to whether that is on account of legal scholars falling in thrall to the bright promises of social science and neglecting the traditional humanities, or whether the humanities themselves have ‘altered’ in a way that makes them seem, to many scholars at least, less and less explanatory in any very interesting way. It could always be both.

As to the rise of social science and economics in legal explanation. It is two things at once, sometimes analytically separated and sometimes commingled. One is the rise of a method – application of tools of microeconomics to a wide range of subjects, rational choice, and so on, together with empirical studies and an increasing dose of statistics. Second, this descriptive method has an ethics to go with it – an ethics suited to marginal utility analysis, tradeoffs, welfare economics, and cost benefit analysis – some form of utilitarianism. Call it pragmatism, call it utilitarianism, the common core is a normative commitment to maximizing welfare defined in some way, with the tools of social science deployed to help figure it out, and the law as handmaid to the policy conclusions thereof. Taken together, the method and the ethics, and you have the remarkable triumph of a new, analytically powerful, and intellectually much more satisfying form of American legal realism. Call it the ‘new legal realism’. It is, as American legal scholars do not always appreciate, a form of intellectual explanation incomprehensible to much of the rest of the legal academy in the world, in large part because the number of American professors who had some exposure to basic economics and social science in their undergraduate years is high and the further refinement of those concepts in American legal education, at least in the elite schools, higher still; for many non-American legal academics, this new legal realism seems concerned with nearly everything but the law itself.

There is a generational shift at work here, partly. The new, ambitious young scholars sense that intellectual momentum is with the new legal realism. There is also an odd artifact here for younger scholars, in the form of an emphasis on showing analytic skills through work that, even if not highly relevant to much of anything, shows off technical skill, and hence brainpower: as it becomes more and more difficult to discern a common standard of intellectual quality in legal scholarship overall, one place where agreed upon standards are much more prevalent is in law-as-technical social science. Yes, when one reads the law reviews or SSRN, the bulk of the work done remains the interpretation of texts, in a traditional manner, with an admixture of policy arguments thrown in – but still the process of the reading and interpretation of legal texts. But the momentum, the leading edge, the margin – that seems to me, at least, to belong to the new legal realism.

And as a matter of ethics, what began as law and economics in the hands of the generally libertarian-conservative professors of thirty years ago is now the cutting edge of impeccable left-liberalism. Cass Sunstein shows us the way, along with the welfare economics of Kaplow and Shavelll and by now a thousand other scholars, for how cost benefit analysis really is the right way to think about social problems, regulation, and law, and Sunstein, Kaplow, and Shavell are no conservatives. The new wave cannot be called “conservative” by any stretch – it is legal realism of a moderately reformist bent.

And the humanities, seen from the vantage point of the emerging paradigm of social science based legal realism? Still good for training in how to read and interpret texts, sure, and law will never really get away from that. But although no one wants to be quite rude enough to say so, it’s hard in the new paradigm to resist thinking occasionally … the humanities are backwaters for the innumerate. Let no one who does not understand the basics of regressions enter here.

There are some skeptical questions one might ask. What, for example, are the unimpeachable deliverables of this new social science? At this point (still early in the intellectual day,granted) I am inclined to give it an A for effort and C+ for deliverables, maybe a B- – and I am sympathetic to the new methodologies. Or: my day job is corporate finance professor: there is surely something slightly outlandish, sleight-of-handish about a paradigm that sees as foundational, not deep questions of philosophy, but … net present value? The techniques of valuation for private firm capital budgeting duly applied to public policy? For this the saints of the rule of law sang in the fire and the martyrs of equality before the bar of the law suffered themselves to be torn apart by lions? To reach a consensus on the foundations of law that:

[Insert NPV formula]

That’s it?

The big, universal problems don’t go away, so far as I can tell. Neither do they lose their relevance by waving one’s hands and saying, “bounded rationality,” which is to say, for purposes of public policy, we don’t have to consider that. It is a little like General Powell’s famous, possibly apocryphal, reply, when pressed to take the US military into Bosnia, “We do deserts. We don’t do mountains”; or a little like the hedge funds in the 1998 crisis which, because they didn’t have a method for taking the prospect of massive political risk into account, simply left the possibility of Russian government bond default out of the model. Bounded indeed. Hidden problems reemerge when we go to set the discount rate, as the famous Dilbert’s cartoon said.

There are replies one can make to this kind of breezy, snarky skepticism. One is that, at least as to the basics, you don’t get to criticize unless you make the effort to understand it on its own terms. There is room for exogenous critique of the new legal realism, but too often it simply offers a way to criticize something one does not really understand. I don’t think this means you have to understand all the baroque ornamentation of the fancy math, but the basics, yeah. My rule of thumb for technical depth, outside my own teaching and active fields of law, is simple. If Larry Solum of Legal Theory Blog thinks I should know it, then I should know it.

Moreover, although this post sounds as though I am channeling a little bit Joseph Singer’s outstanding and provocative new paper on the methodology of the American legal academy, the reality is that when he remarks that cost benefit analysis has taken over the law school curriculum, really he means the curriculum of the top handful of schools. I spend time on my own faculty urging, pretty much in vain, that we incorporate more of the new legal realism into our curriculum. I fear my students are being left behind. When I have taught classes at Harvard, no student, seemingly, no matter how human rights or social justice oriented, would ever think to offer a justice-based argument unaccompanied by an incentives-based argument – whereas my students, while excellent at expressing their moral views, can’t offer incentives arguments, don’t recognize them, and haven’t been taught them. I think it puts them at an enormous disadvantage in the real world, which does care about incentives, in contracts, in regulations, in treaties, everywhere.

This is not precisely what Joe Singer addresses in his SSRN article; for his purposes, in order to address institutional legitimacy, he makes out the divide as between normative and social science approaches to law. For my purposes here, I have adopted a point made by David Zaring in comments on a presentation of mine at Temple at couple of months ago, when he suggested that I perhaps meant not descriptive versus prescriptive methods in international law scholarship, but humanities versus social science. Humanities and normative approaches are not the same, although in this discussion they have some similarities; both distinctions are important independently, too, in a complete discussion of this subject. I strongly recommend Joe’s paper, and hope that it elicits a wide discussion within the legal academy.

(I will add what I think this means for international legal scholarship in my next post.)