A Modest Proposal

After noting that Bryce Courtenay has accepted an honorary doctorate from the University of Canberra in "recognition of his outstanding success as an author and contributions to the community" I offer a modest proposal, with apologies to Jonathan Swift.

(Dean Swift of course gets an honorary doctorate in economics for his outstanding contribution to the Irish food problem. Regrettably he is otherwise detained and will not be collecting the doctorate in person.)

If we're awarding honorary doctorates for 'outstanding success as an author' - success presumably measured in sales figures and audience recognition - why not revamp the Olympics and abandon any pretence of achievement. Gold medals for all! A gold medal - or two - to everyone on The Footy Show. A silver to every sponsor. Bronze to every couch potato in the land.

If honorary doctorates are a popularity contest we can presumably expect to see an award to moppet Bindi Irwin "for contributions to zoology". One to Lara Bingle … for being Lara Bingle! One to Shane Warne. One to Molly Meldrum. Two to Colleen McCullough, Mr Courtenay's peer, for "outstanding success as an author" and as an historian. A batch to JK Rowling. One to Gina Rinehart for "outstanding success" in dispute resolution. One each to Kyle Sandilands and Alan Jones for contributions to discourse and national harmony. One to John Laws for poetry. A posthumous doctorate to Pro Hart. One to Tony Mokbel for services to the Australian television industry; another for innovation in overseas travel. One of course to Gary Ablett for physics. The Wiggles already have honorary doctorates from the Australian Catholic University (2006, "for contributing to early childhood education") but UC could award a doctorate - let's not be squeamish about legal personhood - to Humphrey B Bear, Big Bird, Oscar The Grouch and Homer Simpson, all of whom have the magic audience recognition. Tom Lehrer, of course, as an exponent of legal realism.

Universities should, in my opinion, restrict their higher degrees to signal academic excellence rather than, in the words of Jacques Barzun, engaging in a degree inflation that marks "its possibly justified admiration of a business or political career". That inflation - or the opportunism of particular institutions - is evident in honorary doctorates awarded to Robert Mugabe, Joh Bjelke-Petersen, Mike Tyson (1989, Doctorate in Humane Letters in 1989 from Central Ohio State University), George Foreman (Houston Graduate School of Theology), members of glitter band Slade (University of Wolverhampton),  Dannii Minogue, Kylie Minogue, Shane Warne, Yusuf Islam (aka Cat Stevens) (Exeter University, Doctor of Laws degree), James Garner (University of Oklahoma, Doctorate of Humane Letters), JK Rowling (2006, Aberdeen University, Doctorate of laws) and guitarist Brian May (Exeter University, Doctorate of Sciences for his interest in astronomy and physics). Kermit the Frog received a doctorate of amphibious letters from Southampton College at Long Island University in 1996

Courtenay announced that 'this generation' is the brightest and most intelligent the world has ever seen. The basis for that statement is unclear. There's something disturbing about a 'generation' - or a culture - that apparently needs such affirmation and doesn't critique the feelgood.

Censorship

'Censorship V3.1' (Arizona Legal Studies Discussion Paper No. 12-28) by Derek Bambauer comments that

Internet censorship has evolved. In Version 1.0, censorship was impossible; in Version 2.0, it was a characteristic of repressive regimes; and in Version 3.0, it spread to democracies who desired to use technology to restrain unwanted information. Its latest iteration, Version 3.1, involves near-ubiquitous censorship by democratic and authoritarian countries alike. 

This Article argues that the new censorship model involves four changes: a shift in implementation to private parties; a hybrid approach mixing promotion of favored viewpoints with suppression of disfavored ones; a blend of formal mandates with informal pressures; and a framing of censorship using uncontroversial labels. It suggests a set of responses to censorship that cabin its abuses and push it towards more legitimate methods: focusing on governmental restrictions, insisting on labeling censorship as such, supporting distributed Internet governance, demanding a default right of access to information, and addressing corporate involvement.

Patent Abolitionism

'The Case Against Patents' (Federal Reserve Bank of St. Louis Working Paper 2012-035A) by Michele Boldrin and David Levine argues [PDF] that the US should abandon the patent system.

The authors comment that

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded – which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the enormeous increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditure – in addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences. Both of these observations, the evidence in support of which has grown steadily over time, are consistent with theories of innovation that emphasize competition and first-mover advantage as the main drivers of innovation and directly contradict “Schumpeterian” theories postulating that government granted monopolies are crucial in order to provide incentives for innovation. The differing predictive and explanatory powers of the two alternative classes of models persist when attention is shifted to the historical evidence on the life-cycle of industries. The initial eruption of small and large innovations leading to the creation of a new industry – from chemicals to cars, from radio and TV to personal computers and investment banking – is seldom, if ever, born out of patent protection and is, instead, the fruits of highly competitive-cooperative environments. It is only after the initial stages of explosive innovation and rampant growth end that mature industries turn toward the legal protection of patents, usually because their internal grow potential diminishes and the industry structure become concentrated. 

A closer look at the historical and international evidence suggests that while weak patent systems may mildly increase innovation with limited side-effects, strong patent systems retard innovation with many negative side-effects. Both theoretically and empirically, the political economy of government operated patent systems indicates that weak legislation will generally evolve into a strong protection and that the political demand for stronger patent protection comes from old and stagnant industries and firms, not from new and innovative ones. Hence the best solution is to abolish patents entirely through strong constitutional measures and to find other legislative instruments, less open to lobbying and rent-seeking, to foster innovation whenever there is clear evidence that laissez-faire under-supplies it.

They conclude -

In 1958 the distinguished economist Fritz Machlup in a report to Congress famously said

If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.

One might imagine that if it would be irresponsible to recommend abolishing it, it would be even more irresponsible to further extend it. Moreover, one might hope that if it is indeed worth preserving such a large government intrusion into private activity that that during the intervening six decades evidence would emerge that patents do indeed serve the desired purpose of encouraging innovation. Sadly the story of the past six decades is the opposite. In new industries such as biotechnology and software where innovation was thriving in the absence of patents – patents have been introduced. Given this continued extension has there been a substantial increase in innovation in recent years? On the contary, it is apparent that the recent explosion of patents in the U.S., the E.U. and Japan, has not brought about anything comparable in terms of useful innovations and aggregate productivity. 

The software industry is an important case in point. In a dramatic example of judge-made law, in the early 1990s sofware patents became possible for the first time. Bessen and Meurer in a large body of empirical work studied the consequences of this unnatural experiment, culminating their [2009] book entitled Patent Failure the title of which summarizes how effective software patents have been for promoting the common good. With six decades of further study since Machlup’s report failing to find evidence that patents do promote the common good, it is surely time to reconsider his recommendation that it would be irresponsible to abolish the patent system. On the contrary: a system that at one time served to limit the power of royalty to reward favored individuals with monopolies has become with the passage of time a system that serves primarily to encourage failing monopolists to inhibit competition by blocking innovation. 

Abolishing patents may seem “pie-in-the-sky” and there are certainly many interim measures that can be taken to mitigate the damage: properly interpreting obviousness, requiring genuine disclosure of working methods and an independent invention defense against patent infringement are useful and – among economists – relatively uncontroversial measures. But why use a band-aid to staunch a major wound? Economists fought for decades – and ultimately with great success – to abolish trade restrictions. It will not escape the careful reader that patents are very much akin to trade restrictions as they prevent the free entry of competitors in national markets, thereby reducing the growth of productive capacity and slowing down economic growth. The same way that trade restrictions were progressively reduced until reaching (almost complete) abolition, a similar (albeit, hopefully less slow) approach should be adopted to “get rid” of patents. Moreover the nature of patents as time-limited makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach has also the advantage that if reducing patent terms indeed has a catastrophic effect on innovation the process can easily be reversed. 

There are of course many transitional issues to be worked out. This is particularly the case with respect to pharmaceutical products where patents are only one piece of a complicated regulatory jungle including the approval process and the market exclusivity protections all of which would need to be adjusted as patents are phased out. Because policy proposals are better digested and metabolized when served in the form of small pills, here is our list of small reforms that could be easily implemented. 

(1) Stop the rising tide that, since the early 1980s, is both extending the set of “things” that can be patented and shifting the legal and judicial balance more and more in favor of patent’s holders. 

(2) Because competition fosters productivity growth, anti-trust and competition policies should be seen as a key tool to foster innovation. This is of particular relevance for high tech sectors, from software to bioengineering, to medical products and pharmaceuticals. 

(3) Free trade is a key part of competition policies hence the role that WTO-WIPO-TRIPS play should be redefined to move away from the current neo-mercantilist approach toward free trade in goods and ideas. The aim here should be that of stopping the policy of exporting our intellectual policy laws towards other countries while adopting a policy of exporting free trade and competition in innovation. This seems an urgent goal because, within a couple of decades, the “balance of trade in ideas” between US+EU and Asia may easily reverse. At that point the temptation to engage in “mercantilism of ideas” may well affect the now developing Asian countries, leading to a general increase in IP protection worldwide. 

(4) Cross industry variation in the importance of patents suggests we may want to start tailoring patent’s length and breadth to different sectorial needs. Substantial empirical work needs to be done to implement this properly, even if there already exists a vast legal literature pointing in this direction. 

(5) Reversing the burden of proof: patents should be allowed only when monopoly power is justified by evidence about fixed costs and actual lack of appropriability. The operational model should be that of “regulated utilities”: patents to be awarded only when strictly needed on economic grounds. This requires reforming the USPO, which is urgently needed in any case. 

(6) Prizes and competition. An interesting approach is that of operating to change the role that the NSF and the NIH play in fostering innovation. The basic goal, in this case, is that of reversing the principle according to which federally financed investigation can lead to private patents. As a first step we would advocating going back to the old rule according to which the results of federally subsidized research cannot lead to the creation of new private monopolies but should be available to all market participants. This reform would be particularly useful for the pharmaceutical industry. 

(7) With regards to the latter, we advocate reforming pharmaceutical regulation to either treat stage II and III clinical trials as public goods (to be financed by NIH on a competitive basis) or by allowing the commercialization (at regulated prices equal to the economic costs) of drugs that satisfy the FDA requirements for safety even if they do not yet satisfy the current, over-demanding, requisites for proving efficacy. It is ensuring the efficacy—not the safety—of drugs that is most expensive, time- consuming and difficult. All the usual mechanisms of ensuring the safety of drugs would remain firmly in place. While pharmaceutical companies would be requested to sell new drugs at “economic cost” until efficacy is proved, they could start selling at market prices after that. In this way, companies would face strong incentives to conduct or fund appropriate efficacy studies where they deem the potential market for such drugs to be large enough to bear the additional costs. At the same time this “progressive” approval  system would give cures for rare diseases the fighting chance they currently do not have. This solution would substantially reduce the risks and cost of developing new drugs. 

(8) If this progressive approval approach works for rare diseases, there is no reason is should not be adopted across the board. The current system favors a small number of blockbuster drugs that can be sold to millions of patients. The coming revolution in medicine will rely on carefully targeting hundreds or even thousands of drugs to the correct patients. But lawmakers must first usher in a new system that makes developing these precision treatments possible. The regulation reform we are suggesting would be a first important step to achieve such goal. 

The aim of policy, in general, should be that of slowly but surely decreasing the strength of intellectual property interventions but the final goal cannot be anything short of abolition. Once again, if at the times of Machlup one could still nurture doubts and wonder if the system could not be reformed in a credible and stable form, in 2012 one must ask: is not six decades of failure enough time? Is it not time to take seriously the idea of patent abolition and begin the discussion of these transitional issues?

Facing Justice

The preceding post commented on questions of hatred, trolling, emulation and responsibility. It is thus interesting to read that "Facebook is refusing a Victoria Police request to remove sites inciting hatred and violence in response to the death of Jill Meagher".

SBS reports that

Social media giant Facebook is refusing to shut down sites inciting hatred and violence against the man charged with the murder of Melbourne woman Jill Meagher. 

Victoria Police has asked Facebook to cancel about six sites but Deputy Commissioner Tim Cartwright says the social media network operator has declined. 

"(It's) pretty disappointing, some of those sites are inciting hatred and really quite disgusting in the sorts of messages they're portraying," Mr Cartwright told reporters on Monday. 

"The fact is a man's been arrested, we have a good, fair legal process in this state, we need to let it run the course." Mr Cartwright said some of the comments posted were "pretty vile", and there was a risk posting such material in the public domain could affect the trial of the accused. "At the very least they're trying to incite hatred and violence." … 

 A number of hate pages directed at the suspect have also been set up, with one attracting 44,000 likes. …

Victoria Police have ... issued a call for calm, asking people to refrain from posting "inappropriate comments that might jeopardise a successful prosecution". 

Chief Commissioner Ken Lay said police were working through their options following Facebook's refusal to remove the sites. "It is disappointing, and when you see the hatred that's incited by some of these sites, it is very much the antithesis of what we saw yesterday with 30,000 people taking to the streets saying 'let's try and make this a safer and fairer community'," he told Fairfax Radio on Monday.

"We've all got a social responsibility and Facebook is part of our community, and I would've thought it would only have been reasonable."

Facebook does not appear to explained why it has not suppressed the pages. It is capable of turning those pages off: the corporation has the technical ability and the authorisation to do so under its terms & conditions. An apparent decision not to "play nice" with the Police is unwise; it's the sort of corporate self-involvement or indifference that encourages greater regulation.

In a media statement on Friday the Police commented that

Victoria Police has been overwhelmed by the enormity of the public support for this investigation expressed through social media. 

Whilst the widespread willingness to assist has been most welcome, I must now ask that members of the social media community refrain from posting inappropriate comments that might jeopardise a successful prosecution. 

Legislation dictates that nothing should be published that might prejudice the trial of an accused after they have been arrested or charged. That point has now been reached and as Jill's husband rightly pointed out this morning, restraint must be exercised so that the judicial process can run its course.

Toxic tonsils

In a liberal democratic state voters get the politicians that they ask for. On occasion those leaders are the ones that they deserve, rather than the ones that they need. They are deserved because voters have failed to exercise responsibility in condemning, shunning or otherwise indicating their disquiet about statements that are false, simplistic or foster hatred. As a society we cannot credibly condemn online trolling - speech that aims to hurt, vilify, offend - while remaining silent about expressions that denigrate groups of Australians on the basis of ethno-religious affiliation, that endorse ongoing civil disability for gay Australians or that signal the vilification of politicians is quite acceptable.

Australian media figure Alan Jones  - unsuccessful political candidate, owner of a set of 'golden tonsils', strident critic of media regulation - has now clumsily resiled from his claim that the Prime Minister’s father died of shame, a shame attributable to what Mr Jones appears to regard as repeated and egregious lies by Ms Gillard. His reported defence is that his claim was “black parody”, that it was made at "a private function" and that he had simply been repeating what he had heard at a lunch.

That claim was made at a dinner of the University of Sydney student Liberal Club, where Mr Jones was an honoured guest. Many of the listeners at that dinner will go on to become members of Australia’s elite: barristers, company directors, judges, academics, corporate analysts, members of parliament. It is disappointing that the Club has not disavowed the statement by Mr Jones, rather than tweeting approval with the words "Brilliant speech by Alan Jones last night. Its no wonder he's the nation's most influential broadcaster!". It is disappointing that its members - and the politicians in attendance - did not signal their contempt by politely walking out of the event or turning their backs on the speaker. (We presumably cannot expect the decorous young ladies and gentlemen to voice their disquiet by throwing their bread rolls at the podium or dousing the speaker in chocolate mousse.)

The Jones claim is disquieting because it is outside acceptable public discourse. The families of politicians – and of judges, senior officials and magnates – have traditionally been out of bounds. Those people haven’t chosen positions of power and may lack much scope to respond. They should be left alone. If we allow vilifiers to paint a target on their foreheads some aspiring politicians will choose not to expose themselves or their families in a shooting gallery. We will all be worse off from that.

The claim – and the implicit endorsement by members of the Club – is disquieting because it signals to trolls that anything goes. It signals that causing pain will be greeted with applause rather than a cold shower of condemnation. It also signals that making an outrageous statement to encourage attention (even notoriety and fear) is acceptable.

We could of course declare open season on anyone, even high profile journalists such as Mr Jones whose life has been marked by controversy and on occasion scarred by innuendo, highlighted in for example Jonestown: The Power and The Myth of Alan Jones by Chris Masters (Sydney: Allen & Unwin 2006) and Cash For Comment: The Seduction of Journo Culture (Sydney: Pluto Press Australia 2000) by Rob Johnson.

We do not need to declare open season. We should resist what appears to be the message from Mr Jones that anything is acceptable if you have a microphone and few inhibitions about being hateful. A feature of populist discourse over at least fifty years is the claim that Australian judges are unelected and unrepresentative legislators. The willingness of politicians and voters to embrace shockjocks such as Mr Jones [PDF] means that those figures serve as unelected legislators. They should behave responsibly if they wish to be regarded as more than entertainers. They should thus not expect to justify expressions of hatred by claiming that they are the victims of "widespread efforts by the Julia Gillard Government and Julia Gillard herself to silence or punish anyone who dares to articulate one political certainty - that this may be the worst and least trustworthy government in Australian history". They similarly should not disregard the law.

We should be wary of members of a fourth estate who channel hatred and whose view of ethics is illustrated by involvement in the ‘cash for comments’ affair (ie money secretly paid to influence editorial opinion) or in condemnation by Australian courts for disregard of court orders. We should be wary of echoes of Jones' misogyny - claims that "women are wrecking the joint" - evident in for example Larry Pickering's gibe that "Alan Jones’ suggestion of taking this excuse for a woman out to sea in a boat, putting her in a sack with a few Besser blocks and dumping her overboard, is starting to look an appealing solution".

Other than morbid curiosity there is no reason for the Australian public to know whether Mr Gillard died happily or otherwise, immensely proud of being the father of the first female prime minister or not. The Gillards’ privacy should be respected. We do not need to know whether the Jones family is proud of their boy or saddened by his venom. In a civil society we do not need to know and need not speculate. We should however condemn Mr Jones for his claim. It should not be laughed off as ‘just Alan being Alan’, because that implies a double standard for people who have ready access to a microphone and insufficient inhibitions about causing pain.

If you are silent about Mr Jones, and unfussed about his reception by elite students, you cannot conscientiously condemn the nasty teenagers who gain pleasure from lighting flamewars in online fora or the disturbed misogynists and homophobes who recurrently appear in TheConversation and Whirlpool (aka Whingepool).

The ‘I heard it at lunch’ excuse offered by Mr Jones is not one that is recognized in Australian law and has not, for example, been used successfully in defamation law. ‘Black parody’ may well be permissible under the implied freedom of political communication recognized by the High Court as a foundation of liberal democracy. It is unlikely however that the Court is going to be enthusiastic about an ‘anything goes and anyone is a target’ philosophy. It is also unlikely to encourage egregiously offensive letters, such as those sent by Sheik Haron to families mourning the death of members of the Australian Defence Forces. (Private hatespeech cannot persuasively claim the protection of political communication that is voiced to the world at large.)

The law welcomes the robust criticism and difference that is both inevitable and desirable in a liberal democratic state. As an indication of social values it should not, however, dignify hatred. We do not need to hear that Mr Abbott, Mr Turnbull, Ms Gillard, Mr Brown, Mr Rudd or even Mr Jones should be placed in a sack for dumping in the ocean like an unwanted cat. We do not need the denigration of gay people - and of their families - implicit in recent statements by Jim Wallace and Cory Bernardi.

Malicious claims by Mr Jones about family life are not needed for a vibrant democracy. What is needed is a loud condemnation by society of expressions of hatred, misogyny and hurt. If we are silent we’ll get what we deserve.

Forgotten

'It’s About Time: Privacy, Information Lifecycles, and the Right to Be Forgotten' by Meg Leta Ambrose in 16 Stanford Technology Law Review (201) comments -

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content disappears in a year and that 59% disappears in a week, signifying a decrease in the lifespan of online content when compared with previous studies. 

Those that have debated this privacy issue have consistently done so in terms of permanence and also neglected an important consideration: the changing nature of information over time. Our efforts to address disputes arising from old personal information residing online should focus on the changing value, uses, and needs of information over time and the ethics of preservation. Understanding how information changes over time in relation to its subject, how and where personal information resides online longer than deemed appropriate, and what information is important for preservation allows regulation to be tailored to the problem, correctly framed. This understanding requires an interdisciplinary approach and the inclusion of research from telecommunications, information theory, information science, behavioral and social sciences, and computer sciences. Recognizing that information does not last forever, this article takes the initial step of outlining an information life cycle in terms of phases in relation to information needs, creating a taxonomy to help assess the competing values at stake when one seeks to have old personal information “forgotten.” 

Some of the proposed legislation make exceptions for historical, statistical, and public safety needs, but none of them include time, a vital element to the information life cycle. The article concludes by working through specific issues like revived interest, the integrity and objectivity of the Internet, and the importance of time in protecting the interests other information needs. Permanence is not yet upon us, and therefore, now is the time to develop policies and practices that will support good decisions, preserve our cultural history, and protect the future of the past, as well as protect the privacy rights of individuals that will live with the information and a society that may suffer from the threat of a permanent record.

PoMo Kelsen?

'Hans Kelsen in Post-Modern International Legal Scholarship' by Jörg Kammerhofer in International Legal Positivism in a Post-Modern World (Cambridge University Press, 2013) edited by Jean d’Aspremont & Jörg Kammerhofer comments -

 Can we call Hans Kelsen’s Pure Theory of Law an example - or even the epitome - of post-modern international legal positivism? The Pure Theory of Law’s radical programme rivals that of many other critical scholarly projects; as a ‘down-to-earth’ critical enterprise, its deconstructive arguments hit orthodox doctrine harder than those of most post-modernists. Moreover, it also contains a constructive side. This chapter first and foremost aims to show that the Pure Theory can be an attractive approach for international legal scholars, but it does not assert its inevitability. 

The chapter’s main line of argument is developed through four topics, grouped in pairs. In the first set of topics, two key features of the Pure Theory of Law are introduced, developed and discussed. Section 2 outlines the Pure Theory’s radical programme for a science of law. Its dramatic departure from the orthodox opinions of the day - through the purification of legal scholarship - is still with us today. One of the key dualities of the Pure Theory’s approach is explored in Section 3. The two conceptual poles of ‘normativism’ and ‘positivism’ may look like thesis and antithesis, but they are united in synthesis in the legal theory of Kelsen and his followers; they do not constitute two extremes on an oscillating - and irreconcilable - pendulum. 

The second set of topics map the structural analysis provided by the Pure Theory of Law onto the sources of international law. Section 4 discusses the Kelsenian Grundnorm and contrasts it with Hart’s Rule of Recognition, before assessing this debate in connection with the origins and foundations of the formal sources of international law. Finally Section 5 focuses attention on one of the least ‘positivist’ sources: the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c) ICJ Statute).

Roger Cotterrell takes a less positive view of Kelsen in 'Socio-Legal Studies, Law Schools, and Legal and Social Theory', which

argues initially that socio-legal studies are important for legal education and juristic inquiry, and it outlines problems facing social studies of law in law schools. It claims that legal theory is necessary for practical legal studies but that legal philosophy's purportedly timeless theories about the nature of law have largely failed to meet this need. They have often been relatively unconcerned with social variation and historical change and so have not adequately reflected the varieties of possible legal experience. Juristic theory must be sociologically informed. But, equally, socio-legal studies must examine the nature of law as ideas as well as focusing on behaviour in legal contexts. Legal ideas need sociological interpretation. Social theory is essential to inform legal inquiries, and the long tradition of social theories of law is important. Alongside recent theories, the classics of socio-legal theory give deep perspective for studies of present-day law in society.

Cotterrell goes on to comment that -

I am optimistic that socio-legal theory can do what legal philosophy has failed to do; that it can be relevant in the law school world in ways that perhaps some legal philosophy is not. But I’m also aware of obstacles. Legal theory – theory aimed as explaining the nature of law – depends on empirical socio-legal research to keep it grounded in experience and sensitive to social variation. And most academic lawyers in Britain still have relatively limited awareness of or exposure to empirical socio-legal research, except perhaps where it relates directly to their legal specialism and where they have the sort of favourable conditions for wide-ranging scholarship that the best law schools allow. 

American legal scholars have sometimes claimed that ‘We are all legal realists now’ (Singer 1988: 467; Schlegel 1995: 2) and it might be tempting to say ‘We are all socio-legal scholars now.’ It seems true that legal scholars in the English-speaking world are often reluctant today to label themselves as ‘black letter lawyers’. What once was a label of pride to denote single-minded, rigorous and precise analysis and systematisation of legal doctrine, now more often gets treated as an admission of myopia, which no one wants to make. But socio-legal research cannot be said to have invaded the law school. In this country, unlike some continental countries, it is surely generally viewed sympathetically by academic lawyers of most persuasions. But socio-legal research has not modified the most basic patterns of legal thinking. It has not much disturbed the jurists. 

Its value certainly does not depend of whether it has influence in the lawyers’ world of doctrinal argument, dispute processing and practical regulatory design, but its long-term security probably does, to some considerable extent. In recent years, in Britain, posts in socio-legal research have been created in law schools, and part of the motivation for this – apart from any intellectual arguments – may have been that SLS is seen in some university environments as a promising focus for attracting external grants to support research. Funding from sources other than the usual state higher education support (for example, from charities, industry or European institutions) is increasingly valued in British universities for its own sake, quite apart from its financial value, as a mark of external recognition and esteem. In such a climate, support for socio-legal research in research-active law schools may make good practical sense. Yet this is a fragile foundation for the development of SLS inlaw schools, because external funding opportunities can disappear and fashions in academic planning can change. SLS remains vulnerable unless it becomes more clearly integrated with doctrinal law teaching and research. That means that it must engage with the idea of law as doctrine directly. 

Insofar as SLS focuses on law it has to compete with juristic studies of law and in some way impose itself upon them. Hans Kelsen’s (1945: 175-7) famous claim to relegate sociology of law to the periphery of legal concern as a dependent study should have outlived its relevance, yet it still haunts us. As Kelsen saw, if sociology of law does not find space to address the meaning of law in something like a ‘juristic sense’ – that is, as ideas and doctrine – it has no central concept of law except insofar as it borrows this from lawyers. No one can really believe that a concept such as – to use Donald Black’s (1976) term – ‘governmental social control’ captures the full meaning many people attach to the idea of law. So the intellectual situation seems parallel to that in criminology. ‘Crime’ seems to be what law says it is; and ‘law’ seems to be what the state and the lawyers say it is. 

So where do the social scientists stand in relation to concepts of crime and law? Are they just bystanders waiting for the lawyers to clarify founding concepts of their intellectual field? The way out of this problem is surely to admit that SLS has to engage seriously with theoretical ideas about the nature of law, it has to take its own stand theoretically on the nature of law as ideas, practices and experiences; and that theory must take careful account of (but certainly not be limited by) juristic legal theory. Juristic theory provides part of the ‘raw’ material (indicators of legal experience and legal practice) available for empirical socio-legal theory to work with.