In the spring of 1999, I published a little book with a big title: The Cultural Study of Law, Reconstructing Legal Scholarship. The ambition of the book was to clear a space within law schools for a study of law that was not directed at the issue of legal reform. I urged a theoretical approach free of the insistent question: "What should the law be?" The reasons for my plea were not new. The rule of law, I argued, is not just a set of rules to be applied to an otherwise independent social order. Rather, law is, in part, constitutive of the self-understanding of individuals and communities. In particular, Americans often identify themselves as citizens within a polity characterized by the rule of law. This is not the only way in which Americans imagine themselves, but it is a powerful way for many people.
To achieve such a disciplinary stance with respect to law's rule is particularly difficult, I argued, because the study of law is itself a part of the practice of law. An openness to reform is characteristic of the legal order, and a significant source of reform is the study of legal rules and institutions that occurs within the law school. Thus, an effort to shift the disciplinary attitude confronts not merely resistance arising from the personal ambition of those in a professional school to "have an impact" on legal practice, but a deeper problem of the co-optation of reason by the very object of study: the rule of law. Law professors, for the most part, are not studying law, they are doing law. Even to see this, however, requires a kind of Cartesian division of the self, such that the law professor's ordinary beliefs and professional practices become the object of his or her inquiry.
Anyone reading my book would quickly see that the title is grander than the actual project. For the most part, I have explored the links between constitutional law and the constitutive character of law. The culture of law's rule upon which I have focused is that which we acknowledge when we look to the Supreme Court as the literal embodiment of the belief that ours is "a government of laws, and not of men." Because constitutional law rests its claim to legitimacy on the realization of self-government, it provides a particularly compelling point of entry for an inquiry into the ways in which law both reflects and constructs the self.
Paul W. Kahn,
Freedom, Autonomy, and the Cultural Study of Law,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol13/iss1/5