16 Pages Posted: 26 Oct 2015
Date Written: October 24, 2015
This essay questions the predominant assumption within legal academia that the goal of scholarship should be to give policy advice. We do not make the obvious point that it is questionable whether legislatures care about what law professors think. Rather, we claim that policy suggestions fall within what Jacques Lacan called the “discourse of the university.” The terminology reflects not a normative judgment that professors should speak it, but an empirical observation that they all too often do speak it.
The discourse of the university is expertise. It is not a true critical discourse, but a discourse of power because it is an attempt to make others act in a preferred way. It serves, often inadvertently, as an adjunct to the more obvious exercise of power called the “discourse of the master,” which is roughly equivalent to Hart’s concept of law. The master’s voice, like positive law, is to be obeyed not because it is moral, but merely because it is recognized as authoritative. By seeking to justify legal rules, the discourse of the university provides the missing rationalization for the master, thereby strengthening its reign. That is, the master tells you what to do; the university tries to convince you why you should do it.
The two power discourses are to be contrasted to two critical discourses of the analyst and the hysteric. If the power discourses are those of the governor, the critical discourses are those of the governed: the subjects subjected to law.
The analyst’s discourse is that of interpretation and counseling. The hysteric’s is the discourse of challenge. We argue that not only should they be the predominant discourses of practice, but also of theoretical and doctrinal scholarship.
Suggested Citation: Suggested Citation
Schroeder, Jeanne L. and Carlson, David Gray, Improve Yourself; Not the World (October 24, 2015). Cardozo Legal Studies Research Paper No. 464. Available at SSRN: https://ssrn.com/abstract=2679317 or http://dx.doi.org/10.2139/ssrn.2679317