Legal Scholarship as Spectacular Failure
25 Pages Posted: 14 May 2018 Last revised: 15 Jul 2018
Date Written: April 28, 2018
Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure. They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view legal scholarship as lacking common structure. This challenges these assumptions by offering a novel aesthetic perspective on legal writing. We argue that most legal essays are modeled on a narrative device known as “the hero’s journey,” in which a protagonist (the scholar) overcomes a particularly frightening menace (the legal problem), and returns home with the bounty (the legal solution). However, there’s a twist: legal theorists are institutionally conditioned to treat this story suspiciously, looking for false and misleading features, thus (perhaps unconsciously) treating the narrator as unreliable. By exposing these common literary patterns this essay also reveals a unique and as-of-yet unexplored trade-off between two different qualities of legal scholarship: the more unreliable the reader finds the legal article, the greater aesthetic pleasure she derives therefrom. Consequently, many legal articles are, in a way, beautiful failures. That is, unsuccessful attempts to convince their reader in the truth of their thesis that nevertheless resonate with their readers aesthetically. This essay explores these ideas and explains their implications both from a law & literature and a philosophical perspective.
Keywords: Law & Literature, Philosophy of Law, Jurisprudence
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