Have your eyes glazed over?
Have you stopped reading?
Do you think I am wasting my time?
Do you think I’m wasting your time by telling you about it?
If you answered yes to any of these questions, you are not alone. In my experience, it seems that “theoretical” is often thought to be synonymous with “abstract”, “academic”, “boring”, “impenetrable”, “impractical”, and/or “irrelevant”. This belief seems particularly strong in law, as law is usually understood to be a practice – a practical, professional pursuit aimed at serving and protecting clients. Since legal theory can’t help those clients stay out of jail, fight for custody of their children or recover damages for medical negligence, the study of legal theory is a scholarly luxury of little (or no) practical use.
Contrary to popular belief, “theory” is not a bad word. Theories are sets of principles on which practice is based, which help us explain certain phenomena or which help us choose between competing options. At its heart, the study of legal theory is the study of what law is, what it does and what it should be and do. It is not inherently complicated or alienating, impractical or abstract. In fact, we all have some understanding, whether articulated or not, about legal theory – about what rules are binding, what function they serve, how to resolve conflicts between competing or ambiguous rules, the meaning of justice and how to make a legal argument. These issues come up constantly in every day life (consider the rules of driving a car, riding public transit or waiting in a line; alternatively, consider the last time you argued for something on the basis of “that’s not fair” or “X was allowed to do it, so I should be able to”). We also become familiar with legal theory through the questions about law and justice that come up in popular culture (consider, for instance Batman, The Social Network, Law & Order, Twilight, Pretty Woman, Kramer v Kramer, etc. etc. etc.).
The way that we think about law and justice corresponds to certain sets of principles (aka theoretical frameworks or legal theories), whether we are aware of it or not. For instance, if you think about law as a set of written rules issued by the state, you likely align with some branch of state legal positivism. If you think that one of the central struggles in Twilight was how Edward, Bella and Jacob reconciled the competing demands of different legal orders – vampire law, vegetarian vampire law, werewolf law and human state law – then your allegiance may lie with some legal pluralists. The same is true if you think that the Winklevoss twins considered a number of legal options – litigation in the courts (i.e. state law), student discipline (i.e. Harvard law, as codified in the student handbook), physical violence (i.e. street law), negotiation and discussion (“gentlemen’s” law) – when deciding how to respond to Mark Zuckerberg’s creation of Facebook. If you think that an immoral law is not a valid law, then you may find it interesting to read some literature on natural law. I could go on and on, but the point is the same: we are all legal theorists.
You can find further discussion of some of the examples and themes discussed above in: W Michael Reisman, Law in Brief Encounters (New Haven: Yale University Press, 1999); Roderick Alexander Macdonald, Lessons of Everyday Law (Montreal: McGill-Queen’s University Press, 2002); Lawrence M Friedman, “Law, Lawyers & Popular Culture” 98:8 Yale LJ 1579. Also, thank you to the McGill Law, Gender & Popular Culture discussion group for being interested in and willing to discuss these issues.