Law, Mystery, and the Humanities: Collected Essays.

Author:McConnell, Meaghan
Position:Book review
 
FREE EXCERPT

I INTRODUCTION II LEGAL ESCAPISM? THE LAW AND HUMANITIES DEBATE III PUZZLES AND MYSTERIES: A NOTE ON ATKINSON AND MAJURY'S METHODOLOGY "Points of Convergence: Law, Mystery, and the Humanities" A False dichotomy? The "Law" in Atkinson and Majury's Methodology IV DIVERGENT METHODOLOGIES V CONCLUSION The work of academics and legal theory grounds analytical jurisprudence in terms of abstract, logically coherent, formal conceptual systems. It promotes stability and coherent changeability by affecting the substantive content of rights and by providing a rational basis for judicial decision-making. (1) It is our hope that the perspective law brings to the exploration of the limits of human rationality, the worries of human dissent, the apparent inevitability of suffering, and the intellectual challenge of transcendence will at least muddy the waters sufficiently to allow for mystery to become popular again. (2) I INTRODUCTION

As the title of their introductory essay, "Points of Convergence: Law, Mystery, and the Humanities", suggests, Logan Atkinson and Diana Majury understand the convergences of law and the humanities as enigmatic encounters. This view forms the impetus for Law, Mystery, and the Humanities, a collection of twelve short, independent essays which exuberantly explore the far reaches of interdisciplinary legal studies. The essays engage with an array of disciplines within the humanities, from history to linguistics and from cinema to religious studies, canvassing topics as diverse as depictions of law in texts written during the Great Plague of London, (3) and the use of philosophy in the interpretation of constitutional rights. (4)

Atkinson and Majury characterize their interdisciplinary exercise as an opportunity to liberate the law from its "usual role of answering questions and passing judgement". (5) The editors "muddy the waters" (6) of legal methodology with humanistic perspectives, thereby facilitating an escape from the confines of the traditional structures of legal writing. The diversity of interdisciplinary approaches implemented in the individual essays is evidence of this insouciant attitude towards prevailing conventions. Atkinson, Majury and the contributors to this collection challenge our assumptions about legal writing, and in doing so engage with the seminal question of the purpose of interdisciplinary legal writing.

Atkinson and Majury outline the foundation of their interdisciplinary methodology in the introductory essay, "Points of Convergence". The editors reject approaches which attempt to identify the law as one of the humanities, (7) in favour of what they term "a more transcendent interdisciplinarity": (8) a methodology that is based on an intuition that all disciplines are cut from the same cloth and that the thread which binds them can be uncovered. According to Atkinson and Majury, this thread takes the form of conversations on the big unanswerable questions that span the humanities. The editors identify some of the major themes animating these questions as reason, dissent, suffering, and transcendence. The essays are organized according to these themes, each serving as a window into a new conversation. As the reference to "mystery" in the title suggests, these conversations do not seek to find answers but rather to tend to the unknowable. Atkinson and Majury work from an understanding that scholars in the humanities commonly address questions that cannot ultimately be answered: mysteries. The editors propose that interdisciplinary legal scholars can work in the same way, stating that "It]he most that we really want is new insight and further intriguing questions". (9) In keeping with this modest proposal, they state that "[o]ur desire is to expand knowledge and to further understanding, rather than to reach a definitive end point". (10) Examining the law with a foreign eye will have a "reciprocal effect, widening our understanding of both culture and law". (11)

This book review will seek to place Atkinson and Majury's "transcendent interdisciplinarity" within the current debate over the purpose of interdisciplinary legal writing. I will challenge the editors's methodology by suggesting that the law fits uneasily within the premise that all disciplines share fundamental concerns. While theoretical aspects of the law resonate with the open-ended conversations that span the humanities, the law in practice grates against the idea of "mystery". Atkinson and Majury's methodology, therefore, works to separate writing that adopts theoretical approaches to the law (12) from traditional legal writing that is intended to establish norms indicating how the law should be used (prescriptive legal writing). (13) The premise that all disciplines can contribute to common conversations leads the editors to a contentious, bifurcated understanding of the law.

The result is that while Law, Mystery, and the Humanities succeeds in escaping conventional prescriptive methodologies, it does so at the expense of developing a comprehensive understanding of the implications of this escape. Theoretical approaches to the law and legal practice are intimately intertwined: the law cannot exist independently of the institutions that create it and the judiciary that implements it. (14) By relying on an understanding of the law as a primarily theoretical entity, "transcendent interdisciplinarity" evades the central question of how to reconcile methodological discrepancies. Further, an interdisciplinary approach that does not grapple with the implications of divergent methodologies cannot be truly interdisciplinary: (15) the conversation is illusory because without addressing the law's traditionally prescriptive methodology, it comprises only a single voice--that of the humanities. (16)

This book review will proceed in three parts. The first will introduce the debate over the purpose of interdisciplinary studies in law schools. This debate sets those who maintain that legal writing should serve to guide legal practitioners against those who question the necessity of orienting academic legal writing towards inspiring change outside of the academic world. I will argue that the polarity of these positions obscures an essential distinction between prescriptive legal writing and writing which examines traditional prescriptive legal methodologies. While theoretical approaches to legal writing need not make recommendations about the interpretation or development of the law, they must engage with prescriptive methodologies in order to be truly interdisciplinary. The second part of the book review will situate Atkinson and Majury's "transcendent interdisciplinarity" within the above debate. I will offer a critique of the editors' methodology, arguing that it characterises the law as a primarily theoretical entity and consequently remains grounded in the humanities. The third part of the book review will explore the divergences from Atkinson and Majury's methodology exhibited within two essays in the collection. (17) This comparative exercise will serve to illustrate different approaches to the problem of reconciling humanistic methodologies with prescriptive legal writing. While many of the essays in the collection successfully escape the confines of prescriptive legal writing, an interdisciplinary legal essay--whether an "intellectual experiment" or not (18)--loses sight of its subject matter if it fails to engage with prescriptive methodologies.

II LEGAL ESCAPISM? THE LAW AND HUMANITIES DEBATE

Legal scholarship has traditionally been thought to serve a prescriptive purpose, in that it is meant to interpret the law or offer suggestions for "how legal decision makers should do their jobs". (19) Justice Bastarache, for example, has identified a dialogue between academics and courts regarding "explanatory, predictive and normative theor[ies]" about the law. (20) Nonetheless, there are those in legal academia who question whether legal writing should be restricted to pandering to judges. (21) Professor Ernest Weinrib, for example, suggests that legal writing need not be prescriptive to offer an opportunity for reflection upon the meaning and intelligibility of judicial activity. (22) The debate over the purpose of legal writing is particularly relevant in the context of interdisciplinary studies in law and the humanities. (23) Interdisciplinary legal writing, which has thus far rejected any orienting methodology, will frequently not adopt a prescriptive approach, in that it does not attempt to establish norms indicating how the law should be used or speak directly to the quotidian concerns of decision-makers. (24) As a result, interdisciplinary legal writing has been accused of distracting legal writing from its traditional role by shifting both its methodology and audience. (25) In demanding that interdisciplinary conversations return their focus to practical purposes, however, detractors of the law and humanities movement obscure the fact that very little prescriptive legal writing, even writing that expressly articulates its instrumental goals, is actually used as a "rational basis for judicial decisionmaking". (26) Nevertheless, this writing succeeds in offering an opportunity for reflection on the "meaning and intelligibility" of judicial activity. (27) While working within the parameters of prescriptive legal writing is not essential to producing insight into the law, engaging with these parameters is. The confusion over the purpose of legal writing therefore stems in large part from a failure to distinguish prescriptive legal writing and writing that engages with prescriptive methodologies.

Canadian law schools have witnessed numerous fledgling attempts to add a legal voice to interdisciplinary scholarly conversations, (28) by "weav[ing] the study of law into the intellectual fabric of university life". (29) As interdisciplinary legal scholars acknowledge, however, the nature and value of these...

To continue reading

FREE SIGN UP