Two Times Two Temperaments of Legal Scholarship and the Question of Commodification

Abstract

There are, indeed, at least two cultures of knowing, with a certain claim to authority, what the law is. Each comprises, within itself, a peculiar pair of opposites. One of these cultures is, possibly, continental European, while the other is, most definitely, US American. In both, legal scholarship comes in two forms that are basically incompatible with one another. Nonetheless, it is possible for them to coexist.

In what follows, I would like to sketch both cultures and then explain whether and how they are affected by the commodification of legal scholarship.

The concept of commodification, as it is used here, is meant to capture the fact that the value of legal expertise or of the capability to produce it is, albeit not exclusively, determined through market exchanges. Whichever merit it might be that we ascribe to legal knowledge, it has the potential to generate demand and can be held up to it qua standard concerning its quality. In a sense, one merely has to push the logic of mainstream law and economics a bit further and to extend it from law to legal thinking. Just as the value of entitlements is measured on the basis of an existing or hypothetical willingness to pay for them, the value of legal expertise is equally subject to monetary assessments. Why not, one might ask — tongue in cheek — regard as correct that legal analysis on which clients are ready to expend most funds?

Keywords: legal scholarship, legal doctrine, commodification of legal knowledge