Law and Practice
43 Pages Posted: 10 Aug 2012 Last revised: 27 Aug 2013
Date Written: August 7, 2012
It is uncontroversial to claim that legal academics and legal practitioners view legal doctrine - the written, black-letter law in the books - very differently. According to the familiar framework, academics focus too much on abstract normative theory - how one should act - while practitioners focus too much on practical lawmaking - the nuts and bolts of creating and revising legal doctrine. Although most sensible academics and practitioners would concede that this framework is oversimplified, they often assume it despite ample counterexamples.
This article offers a more accurate intradisciplinary 'law and practice' framework that unites normative theory and practical lawmaking to solve legal problems. In light of legal doctrine’s public impact upon our daily lives, we cannot help but have an opinion about whether practical lawmaking is consistent with our own implicit or explicit normative theories. Much like religious beliefs, although we may not talk about our normative theories in public, we all have them. When practical lawmaking contradicts our preferred normative theory, we suffer from cognitive dissonance. Practitioners can experience cognitive dissonance between their personal ideals and the disillusioning reality of their practice. Academics can experience cognitive dissonance between their scholarly commentary and its lack of real-world impact.
The democratic rule of law relies upon formalism and positivism. Practitioners who claim normative theory is useless ignore the fact that they accept formalism and positivism by default. Likewise, academics who disdain practical lawmaking not only ignore that practical lawmaking provides empirical data with which to test normative theory but also risk the fallacy of suppressed evidence. Academics commit that fallacy when they selectively cherry pick legal doctrine, such as appellate opinions, out of its practical lawmaking context as evidence to support their preferred normative theory.
Normative theory and practical lawmaking operate in a micro-macro legal continuum which parallels the distinction between microeconomics and macroeconomics. The porous boundary between micro law and macro law is dictated by different legal roles. Whereas legal actors practicing micro law are more limited in their judgment and decision making, legal actors engaging macro law can exercise greater independent judgment and decision making.
Legal doctrine requires both normative theory and practical lawmaking in balanced realism - balancing both fidelity to the rule of law and skepticism of legal rules. Surely the important social and legal issues of our time are worthy of the coordinated efforts of both academics and practitioners along the entire micro-macro legal continuum.
Keywords: theory-practice gap, growing disjunction between legal education and the legal profession, legal theory, balanced realism, law and practice, intradisciplinary study of law, micro-macro legal continuum
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