They also analyze and discuss fairness, justice, and moral ideals in the field of legal theory. As I argue in my thesis The Radical Promise of Public Legal Education, it is the concept of law that comes into play in the PLE project for social justice. Without really realizing it, we have internalized in PLE a positivist concept of law that contains two characteristics that serve as obstacles to the application of law to deal with issues of social justice: the separation of law and morality and the technical nature of legal knowledge. In our initial rhetoric, we proposed to “demystify” the law and attack the monopoly that lawyers have on legal knowledge. But we did so without understanding how their possession of this knowledge had been legitimized. However, breaking their grip on it must mean more than giving the public some knowledge about certain laws, as most PLE seem to do. We need to change our understanding of what constitutes legal knowledge in a way that reveals how law legitimizes and reinforces power and privilege and places public interests and experiences with law at the center. 71 I wish to make it clear that I do not intend to denigrate these schools of legal theory. My own doctoral dissertation and much of my research focuses on abstract and philosophical (legal) sources, using poetic titles and inspirations from a number of different academic disciplines. I repeat that my objective in this article is twofold. First, it`s time to recognize that most legal theories have little legal practice to offer.
Second, legal theorists face the challenge of demonstrating links to legal practice and justifying their teaching of legal theory. Both statements must be read in the context of legal theory. I believe it should be up to each academic to decide what to look for. Google Scholar 77 See generally Kinkley, Jeffrey C., Chinese Justice, the Fiction: Law and Literature in Modern China (2000). Google Scholar 35 Smith, Steven D., Jurisprudence: Beyond Extinction, in On Philosophy in American Law 249 (Francis J. Mootz III ed., 2009). Hart`s emphasis on the internal point of view, which is represented only by lawyers, also deprives his jurisprudence of its critical bite. After all, even at the height of positivism—when Hart won the debate against Fuller—it remained a mystery how it could be argued that the separation of law and morality was desirable because it preserved the possibility of criticizing positive law from the outside. On the impossibility and futility of such a statement, see Liam Murphy, Better to See Law This Way, 83 N.Y.U.
L. Rev. 1088 (2008). Google Scholar 11 Sampford, & Wood, The Place of the Legal Theory, op. cit. Cit. note 9, p. 105. See also Varga, op. cit. cit., note 3, p. 182.
I do not want to fully evaluate this argument here, but it seems to me that it raises the question: why should law be an academic and not a professional subject? Around the world, legal education reform has facilitated the expansion of qualification (e.g. the spread of clinical legal education). See Richard J. Wilson, Training for Justice: The Global Reach of Clinical Legal Education, 22 Penn St. Int`l L. Rev. 421 (2004). As this is not the subject of this article, see Charles R. Irish, Reflections of an Observer: The International Conference on Legal Education Reform, 24 Wis.
5 (2006); The Internationalization of Law and Legal Education, (Jan Klabbers & Mortimer Sellers eds., 2009). Google Scholar 3 See, for example, Cotterrell, Roger, Pandora`s Box: Jurisprudence in Legal Education, 7 Int`l J. Legal Prof. 179, 180 (2000); Csaba Varga, The Philosophy of Legal Philosophy Education in Hungary, Iustum Aequum Salutare 165 (2009). This rough generalization is also based on my personal knowledge of the various European law faculties as well as a brief consultation of a number of legal theory course profiles. Google Scholar 13 See Troper, & Michaut, , above footnote 5. In the common law world, the prevailing view seems to prevail that legal theory is worth using for legal education and practice despite all the current problems. See, for example, case law or case law?, loc.
cit. note 7; Mootz, op. cit. Cit. Footnote 9. See, however, for example, Larry Alexander & Emily Sherwin, Law and Philosophy at Odds, in On Philosophy in American Law 241, 246 (Francis J. Mootz III ed., 2009) (argues that while philosophy may be beneficial to law, individuals may not be able to apply it in real life); Philip Leith & John Morrison, Can Jurisprudence Without Empirism Ever be a Science?, in Jurisprudence or Legal Science? A Debate about the Nature of Legal Theory 147 (Sean Coyle & George Pavlakos eds., 2005) (argues that case law must be empirical if it is to be of interest to legal practice). Google Scholar 34 Goldmann`s book on Goldmann`s legal aspects, which lists international legal instruments, is a good example of a theoretical approach oriented towards practical legal concerns. See Goldmann, Matthias, Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority, 9 German L.J. 1865 (2008).
The encyclopedic work of Callies and Zumbansen on a theory of transnational law shows the limitations of global theoretical approaches that do not include a legal perspective of law. See Calliess, Gralf-Peter & Zumbansen, Peer, Rough Consensus and Running Code: A Theory of Transnational Private Law (1st ed. 2010). Google Scholar 63 This may be due to the absence of previously codified legal interests. See Scalise, op. cit. Cit. note 52, p. 52. 756-57 (“Thus, when judges are faced with a breach of contract, judges are free to write a theory of effective violation as the next chapter of the novel.”). Google Scholar 104 Recently, the European Commission announced its intention to enable fifty per cent of European Union legal practitioners to participate in European judicial training by 2020. See Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2011) 551 final (13 September 2011), ec.europa.eu/justice/criminal/files/2011-551-judicial-training_en.pdf.Google Scholar 93 It is difficult to understand why, given the developments described above, normative legal theory insists on positive law, detached from constitutional values established on the good.
speak. See West, Robin, Towards Normative Jurisprudence, in On Philosophy in American Law 55 (Francis J. Mootz III ed., 2009). Is Google Scholar Legal Theory relevant to Legal Practice? Should legal theory be part of the legal curriculum? This article presents three theses concerning these long-contested questions. First, it argues that the existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is only one yes or no answer to questions about the relevance of legal theory; and (2) treat legal theory and practice as separate and independent entities.
