'How to do things with legal theory' by Coel Kirkby in (2022) 18(4) International Journal of Law in Context 373-382 comments
Legal theory must not merely describe our world; it must also assist us acting in it. In this paper, I argue that teaching legal theory should show law students how to do things with legal theory. My pedagogical approach is contextual and historical. Students learn how to use theory by seeing how past jurists acted in their particular worlds by changing dominant concepts of law. Most introductory legal theory courses are organised by what I will call the usual story of jurisprudence. In this story, great thinkers in rival schools of legal thought attempt to answer perennial questions about the nature of (the concept of) law. In this story, the thick context of our world recedes beyond the horizon of theory. I argue that critical genealogy can let us critique this usual story and its unspoken assumptions of morality, politics and history. Amia Srinivasan's account of ‘worldmaking’ is especially compelling in its emphasis on critical genealogies’ capacity to transform our representational practices (and thus open up new possibilities for action). Critical genealogy also has certain pedagogical ‘uses and advantages’ for teaching legal theory in law schools. Here, context is method. The teacher must defend their political choices of context – choices that are naturalised and so beyond critique in the usual story of jurisprudence. By making these choices explicit, students are invited to both challenge the teacher's choices of context and critique their own common law education. This pedagogical approach also encourages students to experiment in ‘worldmaking’ themselves, and so cultivate a creative capacity to use legal theory to change the world through transforming their representations of it.
Legal theory must not merely describe our world; it must also assist us acting in it. In this paper, I will argue that legal pedagogy should teach law students how to do things with legal theory. My concern is with action rather than description. Most introductory legal theory courses are organised by what I will call the usual story of jurisprudence. In this story, great thinkers in rival schools of legal thought attempt to answer perennial questions about the nature of law. In this story, the thick context of our world recedes beyond the horizon of theory. I argue that critical genealogy can let us critique this usual story and its unspoken assumptions of morality, politics and history. Amia Srinivasan provides an especially compelling account of critical genealogy as ‘worldmaking’. Her reading emphasises its capacity to transform our representational practices (and thus open up new possibilities for action) rather than its potential for epistemic shock.
Critical genealogy also has certain pedagogical uses and advantages for teaching legal theory in law schools. Here, context is method. Teachers must defend their political choices of context – choices that are naturalised and so beyond critique in the usual story of jurisprudence. By making these choices explicit, students are invited to both challenge the teacher's choices of context and critique their own common law education. Since the choices of context are an open-ended multiplicity, this pedagogical approach also encourages students to practise ‘worldmaking’ themselves through reflective and research essays that start with critical self-reflection on their own particular standpoint and concerns in the present. Ideally, teaching jurisprudence through critical genealogy is a collaborative experiment in which the politics of context helps cultivate a creative capacity to change the world through transforming our representations of it.
