Sometime ago, I was doing a presentation on the recent doctrine in a particularly contentious area of law at a Canadian law school. The presentation was designed to show how developments in the doctrine were inconsistent with fundamental principles underlying the doctrine, and that the doctrine should therefore be adjusted. I’m remaining at a high level of generality, because the details of the area of law don’t really matter.
When I finished my presentation, I received questions from the audience. Many were excellent. One was quite critical. But it was not critical on the doctrinal point I was making. Rather, the individual made the point–and I am paraphrasing–that the presentation was doctrinal. The gist of the argument was that doctrinal questions in law are too esoteric, not connected enough to the “real world,” and elide questions of empirics, morality, or otherwise.
My initial shock at the question–I was in a law school, after all–gave way to reflection. It seemed to me that this criticism, as I understood it at least, was way too broad. And if such a criticism is taken far enough, it can change entirely the expectations for lawyers and legal academics in a way that we are unequipped to handle.
At one level, perhaps the questioner’s point can be steelmanned. If one says that doctrine is all there is from a methodological perspective, legal analysis might miss something. Legal analysis that analyzes cases as a connected line of decisions, but unconnected to the philosophical or moral norms embedded in our legal system, will inevitably be incomplete (though all-things-considered moralizing is not the stuff of legal analysis). For a full picture of how the law actually works (at least at the functional level), empirics are important. In many ways–and despite the dangerous risks I will point out–the study of law has benefited from interdisciplinary work, done well.
But this questioner’s comment–and other trends I observe in the academy–lead me to think that the underlying argument is more radical. The point seems to be that the study of doctrine itself is the stuff of pedants; fiddling while Rome burns. On this account, if a legal academic is just studying doctrine, they are either complicit in the immorality of that doctrine, or they are unintentially missing the broader picture of how the law operates.
I think this criticism is misguided.
For one, as legal academics, we are trained in the law. We go to law school and graduate school to learn about the law–as it is, and in light of fundamental principles, perhaps how it should be. This is our craft. Without proper training, the further we go beyond this craft, the greater the risk of distortion or misinterpretation. This is why interdisciplinary work, particularly empirical work, carries such a great risk for legal scholars, despite its ascendancy in the academy. While legal scholars do produce good empirical work, no one suggests that this is the craft of the academic lawyer.
The specific craft of lawyers is also no more suited to philosophy or moralizing. In a memorable turn of phrase in the recent Rogers-Shaw decision, Justice Stratas tells us that judges are just lawyers who happen to hold a judicial commission. There is truth to this. While judges have been granted the power of judicial review of legislation under the Constitution, the problem is not this grant of power per se. Rather, it is the pretense that judges have special insight into the moral values of Canadians in exercising that power, as opposed to special insight into the law. When judges stray from the legal craft, it becomes irresistible for the public to conclude that lawyers have some special insight into the way the world should be. A dose of humility should tell us why this is wrong.
On the fundamentals, I worry about the degradation of doctrine. As Paul Daly pointed out in a recent piece, the role of doctrine in legal analysis is not the stuff of pedants. Decisions that are reached according to settled principles enhances public legitimacy of those decisions. Justified departures from those decisions can sometimes be warranted; but this is the point, they must be justified according to fundamental legal norms. Doctrine cabins in all-things-considered moralizing, which–as I have pointed out–lawyers are no more equipped to handle than anyone else. When crisis strikes–pandemics, war, what have you–floating adrift on a sea of political or moral theory (or worse, the say-so of someone in a robe) will only distort the sort of legal protections upon which Canadians have come to rely. This is not to say that the law is fool-proof and all-protective. Law is a human creation. Nonetheless, it is for this reason that doctrine serves an important legitimating function.
This is where the doctrinal methodology, best-suited to lawyers, comes in. Lawyers who study doctrine should not shirk from doing so. The clarification and study of doctrine can assist judges in reaching reasoned decisions that best reflect the legal materials. Whether we like it or not, the common law method is the bread-and-butter of legal decision-making. Someone needs to step into the role to study the doctrine, to try to make sense of things that could elude the attention of the philosopher or political scientist.
I’m glad the questioner phrased the challenge in the way they did. In a way, it provided an opportunity for reflection on the important, continued role of doctrine. The only error, to my mind, is hubris in either direction–a confident belief that doctrine doesn’t matter, or a confident belief that doctrine is all there is. But for the academic lawyer who finds a home in the weeds of doctrine, there should be no shame.