Intellectual Voyeurism in Legal Scholarship

Abstract

Arguably, the most important general development in legal scholarship over the past two decades has been the remarkable flourishing of interdisciplinary work bringing together law and the humanities and social sciences. The most visible manifestation of this development has been the usurpation of certain traditional doctrinal areas by the law and economics movement; but outside the courts, and in the classrooms and journals, numerous other interdisciplinary movements have made prominent appearances: law and social science; law and literature (or literary theory); constitutional law and philosophy; even law and theology. The fruit of battles waged by Legal Realists more than sixty years ago is now being harvested to an extent quite unparalleled in the history of professional legal education (and in directions the Realists never contemplated). Yet these new developments in legal scholarship have placed unprecedented demands on the legal scholar, for each of the disciplines on which the legal scholar might draw has its own history, tradition, training, and standards. The legal scholar is now called upon to participate in other academic discourses with practitioners who have completed five or more years of graduate study and whose professional lives are devoted to that piece of the intellectual universe. Many law professors, of course, now have advanced training in fields outside law, while many others, though lacking "professional" credentials, still engage usefully and intelligently with other disciplines and intellectual developments. Not surprisingly, though, the dramatic rise in interdisciplinary work has witnessed a considerable amount of sub-standard scholarship. This work likely would not find a home in the professional journals of the associated discipline, but appears all too often in leading law journals. Some of this work surely reflects good efforts gone astray; some reflects unrealistic ambitions for an encounter between law and another discipline; and some even seeks unlikely (and unfortunate) marriages of law with disciplines that are perhaps best excluded from the current trend of interdisciplinary scholarship. More objectionable, however, is another class of sub-standard interdisciplinary work whose most striking feature is what I call its "intellectual voyeurism": superficial and ill-informed treatment of serious ideas, apparently done for intellectual "titillation" or to advertise, in a pretentious way, the "sophistication" of the writer. In these cases, the promising scholarly endeavor of interdisciplinary research becomes a forum for posturing and the misuse of knowledge. In this essay, I want to begin by examining one particularly apt illustration of this latter type of interdisciplinary work: Jerry Frug's employment of Nietzsche in his recent essay, "Argument as Character." Professor Frug's essay embodies the paradigmatic traits of the intellectual voyeur: misunderstanding of the philosophical ideas at issue; a lack of critical knowledge of the relevant secondary literature; and a pretense of intellectual sophistication, proudly displayed with every Nietzschean quote or reference. Indeed, this last aspect of Frug's essay is most striking; for, when one gets through with his article, one realizes that Frug's Nietzsche - misunderstood, misappropriated, and vulgarized - plays no important role in his intellectual project. Rather, more like a cocktail party affectation, Frug's Nietzsche commands attention again and again as evidence of the author's alleged intellectual worldliness. Such displays, annoying in isolation, cry out for comment when they become the hallmark of a whole genre of legal scholarship. Note again that I discuss Professor Frug's article only as a (particularly sharp) example of a more general phenomenon. Similar critiques could no doubt address the recent treatments of Wittgenstein, Hegel, Rawls, Foucault, Rorty, Sartre, Habermas, Aristotle, and others in law reviews. Interdisciplinary work indeed demands greater intellectual vigilance. Critical exposures of the suspect quality of some of the work which passes for interdisciplinary scholarship in law journals may persuade legal scholars to engage in deeper study of other disciplines before rushing into print. In the hope of contributing to more rigorous interdisciplinary legal study, I shall conclude in Section IV of this essay with general observations about the prospects for an engagement between law and philosophy that transcends the traditional boundaries of analytical jurisprudence.