LAW AS AN AUTONOMOUS DISCIPLINE

Introduction

Claims regarding the autonomy of law can be divided into four different categories which are
as follows:

1. Legal reasoning is different from other forms of reasoning

2. Legal decision-making is different from other forms of decision-making
3. Both of the above cannot gain from other forms of reasoning and decision-making
4. Legal scholarship should be concerned with subjects that are strictly legal.

While in the 20th century the law was considered as an autonomous discipline which could
not gain from the study of other disciplines, the situation is changing now. It is believed that
the study of law is supplemented by other disciplines and that the inter-disciplinary approach
would make the study of law more adequate and adept and helps it adapt to different
situations.

The concern for a separate discipline arises from the fact that it is felt that the distinct nature
of law would be lost if it is studied from an inter-disciplinary perspective. Thus, law should
be considered as a different and autonomous discipline.

This claim can be understood in three different ways. Descriptively, it can be considered as
an account of how the current practices in law are autonomous. Analytically, the purported
claim of autonomy can be analyzed to see whether it stands or not. Prescriptively: whether
the existing levels of autonomy should be replaced by increased or decreased levels of
dependence on other disciplines.

Legal Reasoning

It is understood that when legal reasoning is referred to as being autonomous, it does not
mean that it will not employ basic rules of logic and inference, which it does. So, all extreme
claims which either hold that law speaks in a language completely different from all others or
that there is no field of law and hence, no requirement of legal expertise, do not hold. It is
however, experienced that the reasoning in law is substantially different from other forms as
encountered in pure logic, morality or politics. It is based more on the rules of analogy and
precedents. So, it has a distinctive style which is seen in the form of institutional decision-
making, hierarchy of decision-makers and efforts to systematize rules. Being a set of rules for
practical action, it seeks to achieve coherence, consistency, stability and finality and aims to
be just and fair. Its functioning manifests in the form of statutory and constitutional
interpretation and the working of precedents.

However, legal reasoning can be differentiated from other forms of reasoning particularly,
because of the primary though not exclusive guidance which it finds in rules. It accords a
normative status to rules, agreements, promises and undertakings which is not seen in other
forms of reasoning.
This has different facets as well seen for example in common law judgments when a
particular law can be changed in a decision, creating a conflict between the existing rule of
law and the new one.

Another distinctive feature of legal reasoning is the use of analogy. It is important as well as
difficult to establish the difference between a persuasive and a non-persuasive ideology
because it determines the decision of a case.

The American Legal Formalists and the Realists

The formalists consider law to be based on the logical deductions which are derived out of
the first legal concepts. Thus, decision-making by the Court would depend entirely on the
meaning of generic legal concepts as proposed by them.

The realists critique them by citing two reasons. The first one is that even though judges
claim the autonomy of law, they bring in factors from outside while deciding cases. This
according to Bix is a legitimate observation and something that the realists are capable of
commenting on. However, Bix does not believe that the realists know enough to make the
second point which is that there is an inherent indeterminacy in language as a result of which
it is impossible to give a complete definition of law.

Nevertheless, the biggest criticism of the formalists is that it proposes law to be to

autonomous and abstracted to be connected to the real conditions of human life. On the other
hand, the realists consider human product for securing social needs which should be
subjected to criticism if it fails to achieve that. Bix seems to agree with the realists and points
out that they believe in the inter-disciplinary approach for reading law. He mentions however,
that a criticism of this school lies in the fact that it considers the social sciences to be neutral
and uncontroversial which is hardly true.

Legal Process School

According to this school, legal reasoning is indeed inadequate but if a well-founded lawyer or
judge works on a case then by virtue of his wisdom, insight and experience, he will be able to
give a distinctively legal response to every situation by deciding on the disputes and
evaluating the merits of law. Law thus, has a distinctive legal response to every situation
which is obtained by evaluating the strengths and weaknesses of different institutions of
decision-making.

However, this school fails because of three reasons. The first one is that it tries to achieve an
objective; it is not possible to define a particular objective for a legal system in neutral
terms. Secondly, it makes a number of value-laden assumptions about the human nature, most
of which do not hold actually. Thirdly, the social and policy sciences are still not developed
enough to give straightforward answers to the simplest of questions.

Professional Legal Education

Analyzing legal education is a good way to understand what the material and methods are
considered important to develop a legal approach. The first observation that springs forward
is that professional education is followed by years of apprenticing with a lawyer to develop
such an approach. This shows that it requires a different method to accustom oneself to the
working of a particular legal system.

In America, legal education has become interdisciplinary, being supplemented by a number

of social sciences. In particular, the relationship of law and economics has become prevalent.
For a number of laws, it argues that these are proxies for efficacy and wealth-maximization
and demands a change so that these laws actually become so. This according to Bix arises
from the American love for pragmatism and deference for anything scientific.

He goes on to talk about the CLS which is very radical in nature and considers law to be
rooted entirely in politics. He does not agree with their observation that judges use the
indeterminacy in legal rules to satisfy their political objectives as he believes that there exist
easy cases in which the result is not determined by this as well as right answers in a number
of hard cases.

Most importantly, he points out how textual interpretation which was considered to be an
example of legal autonomy is being challenged now. Earlier, it was believed that every term
has a distinct meaning in law but now with the advent of social choice and literary theory, it
is established that this claim is hardly true. In fact, the meaning and understanding associated
with each term has become more complex and indeterminate now.

Recent Developments

This section talks about Kelsens theory and autopoiesis. Not relevant. Read if you want to, it
is very small.

Critical legal- radical and stupid

Textual interpretation