On the Use of the Humanities for Legal Expertise: The New Advocate

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Adrian McMillan Bucephalus* (2013), and Luigi Serra Irnerius glosses the old laws (1886).*

We have a new advocate: Dr Bucephalus. ¹

A legal scholar today may well be an expert on a horse. ² As a kind of advocate, riding in the broad saddle of the evidence he or she compiles, and open to the scrutiny of a public gaze that expects answers and advice not just on the increasingly narrow technicalities of law but on every social field affected by the successes or failures of it: it is less these laws to which he or she would be drawn in her scholarly vocation than the many problems and causes to which the law is outwardly and inevitably tied. ³

Would this scholar have an art, a calling, an expertise that she could call her own? Legal expertise is often treated as a professional skill oriented especially to a life before the courts: refined, digested and glossed perhaps by the work of scholars, but rarely produced by them. In their academic roles, and collectively in their faculties of law, such scholars might have taken some consolation in the space afforded to them to ask questions and produce arguments independent of the requirements of a purely adversarial office. But even there the expertise, especially in the common law tradition, seems wedded to the outline of their professional lives more than to their scholarly ones. The scholar is imagined less to exercise any art in the law as much as they are asked to analyze and critique its effects, to train new generations of citizen-lawyers, and ultimately to wield it in the pursuit and inculcation of certain public and social ideals: the freedom of ideas, the transparency of knowledge, the independence of reason, the holding of public authorities and institutions and decision-makers to account in the name of a more objective, more rational, more human, more moral good.

Thanks to these representatives, one can be assured that the laws are not entirely in some state of dereliction nor indeed of unknowability. One can be assured that scholarship in them and in itself has moral worth and public value, since the scholar—cast both as a public intellectual and a defender of a canon of principles—would seek to know the law as if in as much detail as to benefit all of those who could not.

Probably all that it would take to overturn this image of expertise would be for some flighty creature, lacking in a social purpose, any aptitude to advocate for others or itself, and without any common commitment to the good underlying the law or even any possible goodwill in its intention toward it, to seek to study it. What such a creature would lack in talents and outer purpose, it would make up for in studiousness, focus and in the temperament of its task.

In his outward appearance there is little to remind one of the time when he was still Alexander of Macedon’s war-horse. Still, whoever is familiar with such matters notices something. ⁴

Today however, a contemporary lawyer can barely be asked to keep step often enough with legislative and regulative changes and justifications that outstrip and negate, at every point, the emergence of any work of “jurisprudence.” ⁵ Into this gulf of expertise in the law, it is tempting for a proponent of law and the humanities to insert any and every other intellectual domain. Denied a law that can be studied, in other words, the scholar turns elsewhere: to the visual arts where it would find a clearer image; to literature where it would rediscover its necessary poetics; to philosophy where it would uncover the proper foundations of its thought. One celebrates here the realization that the law is nothing more than text, a mode of reading, a materiality, a practice, a way of being. Each and every art would be implicated in it; each and every field of the humanities would be useful for perceiving and critiquing it.

Yet what would the meaning of such a turn to the humanities be for the problem of legal expertise? Would there be a risk of overstating both the influence that these fields exert on an expertise in the law as well as the potential that they represent for transcending it, for escaping from the technical matter of law and the possible knowledge or skill that one can obtain of it?

One should probably hesitate to call the reason for law’s association with the humanities “interdisciplinary”: not because this project would be insufficiently creative in its collaboration with any number of disciplinary fields and forms of expertise, but because the very association emerges out of a need to secure for one of them at least, an intellectual discipline that it could still call its own. ⁶ If the humanities were to be relevant to the law, it would not seem to be on some common intellectual footing between disciplines: an enterprise that might offer results for instance that are greater than what each could have pursued on their own isolated terrain. It would be to salvage a last trace of a sense of intellectual pursuit where it had otherwise gone missing—to breathe something of the spirit of inquiry into a field that struggles to imagine some independence to its expertise and some work of scholarship in its technical knowledge.

This is why the turn to the humanities in legal scholarship is in fact in no way opposed to the isolation of an art and discipline of inquiry that has the study of law as its primary object. ⁷ The humanities in general, for instance, do not offer some escape from the matter of law. It is often the case that the scholar of “law and the humanities” is forced to think of their legal expertise as a blunt, inessential instrument in comparison to their otherwise sharpened scholarly aspirations: as though, in order to not simply reproduce a stale dogmatism of the law in her work, it would be necessary to treat it from the outside, by becoming also a capable ethnologist, linguist, semiotician, historiographer, art historian and so on. ⁸ The instinct that would turn such a scholar toward each of these disciplines wouldn’t be the sign of a disavowal of expertise that on her own terrain he or she would see as merely technical, but of the distances that must still be travelled in search of it. ⁹

Did I not lately see even quite a simple court attendant on the open staircase marvel at the advocate, with the expert eye of the lowly race-track follower, as the latter, lifting his thigh up high, let the marble ring with each stride as he rose up the steps? ¹⁰

If the critical maneuvers that the humanities offer legal scholarship don’t on their own deepen expertise in the law, it would be because such an expertise is not necessarily oriented to the world of “truths” and “ideals”—the good, the beautiful, the real etc.—but only to the crafting of a particular kind of “object.” A legal expert would not be someone who knows certain facts (even positive or doctrinal facts) better than anyone else; nor would she simply have developed a kind of acumen in the particular affairs governed by the world of laws, let alone a keener insight into the principles and structures of power that subtend legal institutionality. Her expertise would lie, on the contrary, in the institutionality itself: a skill for handling, producing or extending the artifices of the law and an adeptness with the formulae through which facts are to be qualified and shaped with a special meaning and as a special kind of creation. ¹¹

This is nowhere clearer than in the example of legal fiction. ¹² Here the law would find itself expressed in the form of articulating what is not true as if it were true and what were certainly true as if it were not. Can this phenomenon be productively analyzed through the knowledges and perspectives that the humanities, literary criticism and so on offer us about fiction? ¹³ Would it open a window onto an ostensibly literary, metaphorical soul of law: an acknowledgement that law is, at heart, an affair not so much of underlying principles subtended by truth but rather of pretense, displacement, rhetoric, or allegory, ensuring once and for all the co-boundedness of law to the necessity for critical tools that only the humanities can provide? Isn’t it, in other words, the scholars in the humanities that are the real experts on fiction while the lawyers, sometimes dabbling in this art, make a rather clumsy use of it?

This might be so if fiction in law were to remain only at the level of representation and not also at the level of technique. In literature, for instance, fiction is capable of casting a lens onto reality by introducing a distance between the telling of facts and the existence of them. In this way it invites us to see and read our reality differently; it enlivens our interpretations and imaginations of it. But legal fiction on the contrary, as Yan Thomas has shown, doesn’t just insert a discrepancy between the facts that are declared and those that are in actual existence. It bases the construction of the law on a declaration of what is certainly false. It doesn’t in other words simply enter into a play of meaning that would, ultimately, secure a common plane on which law, like any literature, any language, any text, replete with slippages and contradictions of meaning and so forth, is opened for analysis and interpretation. It borrows the certainty of meaning of what is known, at the level of facts, to be false, in the precision of a construction that operates at the level of the law. This is, Thomas says, something “radically foreign to common thought,” and which sheds an important light not just on legal thought but on the originality of law’s technique, its art, its way of doing, its connection to a particular form of expertise. ¹⁴

In general, the bar approves the admission of Bucephalus. ¹⁵

Only jurisprudence, one might say, and not any of the other humanities, can be the source of expertise in the law. This, of course, is not to say that an association of law and the humanities would be in any way inessential to it. On the contrary, what the humanities I think provide legal expertise is something that today—at a time when the scholarly work of jurisprudence and of the other humanities is unduly tied to a somewhat barren requirement for the articulation of their broader social utilities—it cannot do without: the promise of isolating for itself an object of study freed of public external purposes. ¹⁶

However much is denied to the study of the humanities today for instance by those who control public resources; however accustomed one can become to the various ways work pursued in disciplines such as the arts, history, philosophy, and so on can be undermined ¹⁷ —no one also imagines denying these disciplines their very objects of study in the same way that law—almost imperceptibly—denies itself its own. Historians, for instance, may be stripped of the means of pursuing their work by decisions that are made outside of their control. But history itself remains something to which study is preeminently and irrevocably connected. And while the work of an historian may be directed at particular public purposes, and relies upon particular political ideologies and commitments, it is at the same time a work that can never be subsumed by these. Even in the most politically oriented or purpose-driven work, the art or expertise of the historian would not be guided by those ends, but by a certain “muse.”

The situation for the study of law is something of the reverse. There, expertise is treated as functional and rhetorical. The law is instituted, applied, one thinks, regardless of it being the object of any work of scholarship. Study doesn’t just hold possibilities for serving public interests: the law itself tends to structurally define, guide, or coincide with those interests. And thus, the legal scholar in their own work very often can look no further, on the one side, than to the superficial applications of their expertise, as if they never quite stopped using it for “playing” the advocate: defending causes that are attached only extrinsically to the law; and on the other, to the perpetual “improvements” in the law itself that their work promises and represents for the public and for the legal profession alike. No one can imagine law itself as any product, let alone proof, of study. It offers nothing but an external, normative significance, behind which it withdraws from the gaze of the scholar. No place can seem to be secured for it among the various cultural and technical artefacts – more familiar to those in many of the other humanities (literature, art history, archaeology and so on) – that inspire precisely because they can be studied, and are studied precisely because they inspire: ¹⁸ giving the insurmountable impression that this work of the humanities is done precisely for the sake of an art and expertise and not purely the expertise being afforded for the sake of some external public good.

With remarkable insight, one tells oneself that Bucephalus is in a difficult predicament under the present social system and that’s why, not to mention his world-historical significance, he deserves to be accommodated. ¹⁹

Would this independence of the humanities mean, ultimately, that “law and the humanities” must have or should have a canon? Would the basis for an association of law and the humanities be properly found in a set of canonical texts by which one can isolate its art, separate its proponents and devotees from outsiders, discern the core of its genre from the periphery, the diversions, and innovations that sustain it from those that subvert it? Should we recognize the essential, determining features of a body of work that one cannot mistake as belonging to “law and the humanities”?

Now, as soon as such a question of canonization is posed, it is typical to have the impression of being capable of talking about the same thing as everyone else: as if what this question cast was the projection of an association of scholarly commitments over any association of individual works that may otherwise lie open to be read. From this point of view, the question may tend to be experienced as a misplaced one by anyone who imagines themselves called from within the association to defend its primary commitments, since these commitments are often felt as the inescapable reflection of a work of canonization without them thereby being commitments to the canon itself. On the other hand, the question of a canon may be experienced acutely and decisively by anyone who seeks to be admitted.

Yet this whole conception might also risk treating the problem of the use of the humanities for legal expertise and for jurisprudence as an idiomatic or at least specialized one that belongs simply and exclusively to the methods and approaches of this particular “field”: one out of any number. A “law and humanities” canon might be made to sit here lifelessly alongside that of “law and economics” (if not “law and the horse”): consigning it, as some intellectual trend, to its proper historical moment and diverting one’s attention from the more enduring scholarly crisis in which legal expertise has come somehow to be separated, not just from the concerns of “critique” and “theory,” but as mentioned, from almost every single intellectual pursuit. The question here isn’t how a marginalized or minor group of scholars are capable of finding—in a canon—the ground upon which to assert the centrality, the importance, the majority of their idiom and their identity. The question is how a mainstream legal scholarship—in sometimes eliminating any use of the humanities in its own work—manages to strip itself of anything that could ensure, still, the possibility for law to make itself an object worth studying. Only a scholarship that actually has no longer any real interest in law can pretend to treat the humanities as something inessential to its task: as some less-than-pragmatic dilettantism.

Law and the humanities. Let’s give it the name that it has known and perhaps deserves still to go by: jurisprudence. Here, a branch of the humanities that has always found its object, its inspiration, and its means of inquiry solely in the law is given a definite vocation. Would there be a risk in “canonizing” such a work? Would it even be possible to do so? Today, one could be forgiven for believing that the work of jurisprudence would refer to a single coherent activity spanning the entire Western history of the theory or philosophy of law. This view would resemble one that, for instance, tries to grasp the meaning of history as a discipline by looking for an answer in the subject of wars and revolutions: that is by ignoring all the techniques and methods peculiar to its way of knowing the world and focusing instead on a favourite topic of which it prefers to speak.

Today—as no one can deny—there is no Alexander the Great. It’s true that some know how to murder; there is no lack in the skill of meeting a friend across the banquet table with a lance; and for many Macedonia is too restricted, so that it is Philipp the father who they curse—but no one, no one can lead toward India. ²⁰

The canon always involves a relation between the major and the minor. Christopher Tomlins has recently sought to pose the contemporary challenge of study in law and history (and potentially law and the humanities more broadly) as a challenge to make of it a jurisprudence and more specifically a “minor jurisprudence.” ²¹ The notion of “minor jurisprudence,” which Tomlins draws specifically from the work of Peter Goodrich and Panu Minkkinen indeed appears associated with various forms of resistance to the canonization of legal thought. ²² In Minkkinen’s work, for example, Tomlins notes, the concept of minor “stood for a mode of jurisprudence that (like Kafka’s literature) resisted accommodation within any established canon or genre”. ²³ For Goodrich, it was also a “challenge to the science of law and a threat to its monopoly of legal knowledge”, a rendering in which “the excluded, the others of law, the laws of others, and in methodological terms the peripheral passions, enthusiasms, tones and relationships, movements and moods, potentially intervene as critique in law.” ²⁴ In both these accounts, the major and the minor appear to be understood both through and against canonization. They are understood through it, because from the plurality of legal knowledge—of minor jurisprudences—“major” jurisprudence would set about constructing its canon, the genre of its authoritative reference, the basis of its objective systematic unity. However, it is also understood against it, because the minor is not just “other” to law’s canon and genre: it is effectively and necessarily “at work” within it; operating surreptitiously, choosing indeed to adopt the canonical forms of law precisely in order to deactivate them, render them minor, to produce a minor rendition of law within them. Of minor jurisprudences, Goodrich names literature and the possibility of others. ²⁵

One should probably distinguish, however, the concept of a “major jurisprudence” from the effigy that is sometimes made of it for certain critical and rhetorical purposes: as a marker, in other words, for the dominant positive legal order and all the discursive and interpretive means by which it is artificially and ideologically sustained. If there is a “major” jurisprudence, it wouldn’t be major simply because it would necessarily constitute a legal orthodoxy, a “monopolising and totalising” order ²⁶ or even because it would want to find its concepts and doctrines in science, first-order truths and “systemic frameworks.” ²⁷ This would be to substitute the monuments of dominant forms of legal rationality and what they exclude for the quality of the thought of law at stake in the ideas “major” and “minor.”

Rather, jurisprudence would deserve to be called “major,” I’d say, whenever thought would be coordinated upon a major kind of question, namely of what law is. Only a major jurisprudence in this sense reserves for itself the task of asking and thinking: “what is law?” Such a question would take the thought of law from its majoritarian angle: where one must rely upon the majority and identity of the concept of law, and the majority, uprightness, good sense, well-meaningness of the thinker of it, in order to found the very privilege of thinking. ²⁸ In this way the history of major jurisprudence often becomes a history of “great thinkers.” It is as though one were not doing jurisprudence until one were to reach the level of this question reserved for the thinker who encounters law not just at the level of its modest forms of expertise, its concrete problems, its makeshift institutional inventions and expedients, its minor jurisdictional devices, but at the level of its very conceptual essence.

It would be by contrast to this that a “minor jurisprudence” would be defined less by the lack of canonization than, as Mark Antaki notes of Kafka’s use of the German adjective klein (“small”), by a lack of “outstanding talents.” ²⁹ It doesn’t attempt to rise to the task of a major question, but to make itself receptive to the minor one that concerns it alone. Minor jurisprudence would be a thought borne by minute differences; by the urgency of a juridical situation and concrete case; the “small,” singular, ordinary encounter that “forces” the emergence of thought at a moment it is entangled in a problem. ³⁰ For a minority, in other words, no problem is too small for thought. And to oppose it to the pretention of “scientificity” of legal study would be to ignore the extent to which legal science has always relied upon unfashionable, subterranean experiments of minor jurisprudences: thoughts forged in anonymous laboratories, out of chance encounters, in relation to questions considered too insignificant to be taken up by major thinkers. A jurisprudential artifact as illustrious as the “juristic person,” for example, can be shaped according to Yan Thomas, out of “measly makeshift solutions put forward by obscure clerics to address the extreme urgency of some chance accident.” ³¹ To the medieval problem, namely, of how to characterize the rights of a monastery where it had happened that every member had disappeared bar one, a technical and even “poetic” solution was reached through the personality of vacant estates in Roman law. ³² The evidence of legal thought is not given here, Thomas indicates, in any doctrinal history or in “any theoretical analysis”; instead more “by the accident of casuistic encounters” and “contamination of terms.” ³³

Even in those days, the gates of India were unreachable, yet their direction was pointed out by the King’s sword. Today the gates have been shifted elsewhere and higher and farther away; no one points out the direction; many carry swords, but only to brandish them, and the eye that tries to follow them is confused. ³⁴

From this point of view, it would not be difficult to observe the major jurisprudence that many appeals toward the humanities today constitute by putting so many questions of what law is, so many versions of “law as. . .” at its center: law as text, language, literature, as theology, as the visual, as society, as materiality, as signifier, as space, as culture, as history, as nature and so on. The plurality of them is no refutation to a concertedness of theoretical ambition, let alone any disguise for the crisis of practical expertise in the law that is laid bare there. ³⁵ We are not faced so much with the riches of multiple interdisciplinarities as we are with the desert of a solitary jurisprudential inheritance where one persists for instance in asking the question “what is law?” even when every basis for constituting it as any individual object of scholarship would appear to have been denied. In this circumstance, one has the impression of a law which might have still been illuminated under a small study desk light having been abandoned there, while the legal scholar—frustrated by the futility or laboriousness of the task—has exited to pursue it in the open “glare” ³⁶ of the sun.

Should one finally see in the possibility of a law and humanities canon, the potential loss of a minor jurisprudence? Should we see it as the closing of a door to the spaces where small legal thoughts reside? The sign of a tiredness in the scholar for the creation of legal ideas, if not apparently for having “ideas about law”? Think of Justinian’s Corpus Iuris Civilis: a work in which the whole literature of a once resplendent branch of the arts—a “classical” age of jurisprudence, of law and the humanities—was selectively reduced to what would become a single authoritative (and codified) canon. One owes it to these canonizers—as we know—themselves legal scholars, to have at least preserved something of the signs of intellectual ingenuity of such an age and to have provided a concrete text through which successive generations may have realised a craft of their own. And while Savigny noted the “season of decline” easily noticeable in this work of compilation and codification, the idea for him of such a project was still “not to be altogether rejected” since the sources of classical jurisprudence, if we still had them before us, would have manifested a remarkable community of method and “much less individuality than in any other literature.” ³⁷ What was canonized in this way—despite a later work of interpolationism that sought to continually reclaim the “classical” element from its Byzantine shell—was less the literary works themselves than the set of problems, questions, cases, and so forth. Of these, Johann Jakob Bachofen noted to his teacher Savigny, simply that he was “glad that Justinian had not succeeded in erasing every trace” in constituting his dogmatic compendium, even if in order to pass examinations the then student had to become from time to time someone who “could have opened the tattered old tomes to any desired paragraph even in the dark.” ³⁸

Today, the same student may be deprived not just of the questions and the material but also the dark. The work of constituting the canon of law and the humanities, long complete, would also be forgotten. Yet to the solitary thought which still seeks refuge in the law, there deserves to belong the modest light of a scholar’s lantern.

So perhaps it is really best to have done what Bucephalus has done and bury oneself in the lawbooks. Free, his flanks unpressed by the thighs of any rider, under a quiet lamp, far from the clamor of Alexander’s battles, he reads and turns the pages of our old books. ³⁹