Realism

'Legal Amateurism' (Cornell Law School research paper No. 16-41) by Annelise Riles comments 

One of the recurring complaints about the American legal academy is that it is amateuristic. Scholars from other fields complain about the vacuousness of legal academics’ analytical categories, the casual way data is made to fit arguments, or the lack of commitment to particular problems as American legal scholars casually hop from topic to topic or field to field to keep up with the hottest trends and current events. American law professors see themselves more as general social commentators, advisors to policy makers and industry, and overall “smart guys” than as traditional academics. Another common complaint is that legal academics routinely deploy paradigms that have been long discredited and outdated in the social sciences. Sociolegal scholars are often left to scratch their heads when confronted with the casual way property scholars use non-Western legal cultures to make inferences about earlier moments in the development of Euro-American law. This kind of stagist evolutionism when out of favor in the social sciences in the 1920s. For decades now, the same critiques of legal studies have been heard in the social and humanistic sciences and, still, the old methods persist.

My own career began with a quite naïve ambition to professionalize this amateuristic discipline. As a young anthropologist, it was downright infuriating to me that law professors did not read; that they did not take an interests in the details; that they seemed more engaged by acts of self-promotion than by the furthering of knowledge about the law. Somewhere along the way, however, I was forced to confront the realization that an anthropologist of law should take legal amateurism as seriously as any other knowledge practice one might study ethnographically. Indeed, I want to suggest that an appreciation of legal amateurism is critical to an understanding of contemporary legal thought. In particular, legal amateurism gives us insight into the incompleteness of the so-called Realist revolution in American law. The amateurism of legal thought was a key target of legal realism, with its ambitions to professionalize legal thinking through engagement with the social sciences from the standpoint of the modernist cult of expertise. In this vision, the link of law to the social required greater expertise and specialization in the disciplines of the social. The success of the Realist revolution at an ideological level is evidenced by the fact that amateurism has become something of an epithet, and I use it purposely to call into question the hegemony that frames it as such. And yet, amateurism—that which does not fit with the modernist vision—persists in the law. It persists in the way legal academics and practicing lawyers alike, indulge in game-like performances of “brilliance” (Gordley 1993) and intentionally use methods of inquiry which deviate from the modernist ideal.

My ultimate claim is that contemporary legal thought cannot be reduced to a theoretical position and an accompanying epistemology. Rather, it is first an aesthetic propensity--a genre of self-presentation, a set of skills of thought and performance, a style of life and work. As such, it exceeds intellectual fashions and ideological commitments of the moment. In this respect, contemporary legal thought is not simply an artifact of the contemporary. My own ethnographic work in Japan has led me to conclude that this aesthetic dimension of legal thought also transcends differences traditionally attributed to the distinction between the civil law and the common law, or other national differences. While all of these differences and distinctions are important and relevant, what it means to be a lawyer and think like a lawyer entails certain distinctive aesthetics which I will term legal amateurism.

I offer a description of legal amateurism with the help of two examples drawn from the engagements of legal scholars and legal practitioners with one central legal doctrine—the doctrine of financial collateralization. Through the lens of legal amateurism, I will argue, we come to understand that Realist assertions to the contrary notwithstanding, legal scholarship is not quite like sociology, or political science, or philosophy, or critical theory. This is because of the intertwined relationship between the identities of the legal scholar and the legal practitioner—identities that were formed by legal formalism, and which remain legal formalism’s enduring legacy. I argue that these identities are the preconditions for enacting legal amateurism and also the effects of legal amateurism. One cannot understand the nature of legal scholarship without understanding legal amateurism and hence without making sense of legal knowledge in terms of relations between the legal academy and the profession (Dezalay and Garth 1996).

In some respects, this approach helps to explain the limits of what is possible within the legal academy—why, for example, certain kinds of scholarship or certain kinds of scholars fail to be recognized as legitimate, or why certain ideological positions predominate in legal scholarship and practice. Yet I do not intend these observations as a critique. On the contrary, I hope to demonstrate the many theoretical and even political potentialities I have come to see in legal amateurism. I conclude by suggesting some ways in which critical scholars and scholars in other disciplines might embrace legal amateurism as a modality of experimentalism.

Riles concludes

Conclusion: Amateurism as Professionalism 25 My claim, then, is that legal amateurism is the very heart of legal professionalism. One cannot be a great legal professional without being a legal amateur as well. It is in the context of amateur work— seemingly useless, often undervalued work—that lawyers and legal scholars develop truly novel solutions to problems, or novel ways of thinking about the law. Legal amateurism is also what often gives professional legal work its greatest meaning: Many of the lawyers and legal scholars I have worked with would count their amateur work as the most important, the most interesting, the most exciting and fulfilling piece of their work lives. As I have shown, legal amateurism is in some respects always a performance of privilege (cf. Mertz 2007), and with this privilege comes responsibility for the context and consequences of one’s work and one’s ideas. I want to hold onto my initial revulsion to the (often highly masculinist) arrogance of the law professor’s performance of what it is to be a smart guy. Yet at the same time, I want to give voice to what I have come to appreciate through fieldwork: legal amateurism may in some cases serve as a medium for rejuvenation when it enables lawyers to create spaces for reflection in a world in which speed, and a lack of time, is a fundamental cause of errors, failures of moral and ethical judgment, and “silo thinking” (Tett 2015).

I want to suggest, therefore, that we begin to acknowledge legal amateurism as a dimension of legal expertise. Doing so may have important implications for the pedagogy of law, and for the evaluation of law students and novice lawyers, where “skills training” is the current fashion, but what is defined as “legal skills” is far more narrow and less intellectually adventurous than the amateurism I have described here. More controversially for law faculties, legal amateurism also brings attention to the symbolic place of the legal academy within the profession. It demands that we understand the legal academy as integrated first into the profession and only secondarily into the social science division of the modern university. For interdisciplinary scholars such as myself, an appreciation of legal amateurism suggests that we abandon the impulse to critique legal scholars from the viewpoint of social scientific standards and instead consider what might be learned from legal amateurism in our hyper-professionalized social scientific disciplines.