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The Cultural Study of Law: Reconstructing Legal Scholarship

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Professor Kahn's book is a deeply radical critique of American legal scholarship, in the sense of "getting to the roots," as opposed to a position on a political spectrum. He argues, essentially, that most legal scholarship is analogous to theology, where the rule of law substitutes for the existence or appearance of God. The various schools of thought within legal scholarship, from "originalists" to critical legal studies, all assume that the rule of law exists, or is at least possible, and debate its nature, or how the rule of law may be best realized (what Kahn calls debating proposals for legal reform). Kahn asserts that "[w]e cannot study law if we are already committed to law" (p. 27) and proposes that legal scholars examine the law outside of the forms of discourse that constitute, or attempt to make immanent, the rule of law itself. Kahn proposes a number of approaches to study how legal meaning (the rule of law) is created as cultural artifact, and the implications of those meanings for conceptions of the state and the individual.

In the end, Kahn leaves the most deeply radical implications of his work more implicit than explicit. What happens when we are no longer "committed to law?" Could we lose our commitment to law in one context (as a student of law as a cultural practice), yet maintain in another (as a citizen)? Kahn suggests that nothing in his book would require the "abandonment of the legal scholar's traditional concerns with reform" (p. 137), but this understates the profound implications of his work. It is literally true that nothing in Kahn's book "requires" the abandonment of projects of legal reform or faith in the law. But this elides the deeper questions, as faith in the possibility of reform is a personal disposition that can be neither proved nor disproved. Similarly to when religion is viewed externally as a cultural practice, the question becomes whether faith in God or law, as the case may be, can be maintained when there is knowledge of an external standpoint where the cultural practices that make God or law appear immanent are explained. In the case of religion, this is a matter of personal choice, whereas obedience to the law is enforced with the coercive power of the state. Can that coercive power appear legitimate in the absence of faith in the rule of law (when we are no longer "committed to law")? Can faith in the rule of law be maintained when, as Kahn advocates, law is studied from an external standpoint as a cultural practice? In Kahn's book, these questions are implied and not posed.

Professor Kahn writes with elegance and tightly reasoned concision. This an extraordinary work which, in 139 pages, fundamentally calls into question the reams of paper that constitute much of legal scholarship.