By Gerald Torres

Because the theme of the upcoming annual meeting is "engaged scholarship," I thought I would take a little bit of time to discuss some of the issues that, to my mind, surround the topic. I mean to focus on that scholarship that bridges the "purely academic" and the "purely practical." Because I believe that it is in the nature of legal scholarship to be concerned with this particular intersection, I want to suggest the ways in which legal scholarship can contribute to the development of knowledge by self-consciously attending to the issues at the confluence of the "practical" and the "theoretical."

By looking at the range of legal scholarship and the types of knowledge that it creates we can begin to map this intersection. The mapping itself is an important project because of the peculiar relationship between law and power in our culture and because of the relationship between knowledge and power. How we create legal knowledge is thus critical to our understanding of the nature not just of legal institutions, but of the circulation of power throughout our social life. Because we are principally occupied with creating knowledge and training lawyers, what we do plays an important role in the development of law. Thus the relationship between the theoretical and the practical in our enterprise is critical for the ethical standpoint we occupy in the process of creating and imparting knowledge.

As we undertake our various projects, however committed we may be to a particular methodology, we should not assume that the tools we have at our disposal are fully adequate to the task. We have all observed, if not been subject to, what I will call "genre conflicts" within the legal academy. Unfortunately, in the midst of these conflicts what is often lost is the recognition that every genre within legal scholarship has within it methodological imperatives that are partial (both in the sense of being incomplete and in the sense of being biased). This partiality is necessarily part of the definitional structure of each approach to the creation of knowledge within the legal academy.

The academy should thus make room for the various genres within legal scholarship for no other reason than that each informs the other regardless of the various pretensions of all. Mastery of doctrine is no less important than the application of a methodology of an external discipline to the problems of a particular substantive area or law as a system. Greater inter-disciplinary work within the legal academy also fuels genre conflicts. The disagreements that arise from the application of the various external disciplines to the problems of law are often the debates carried over from the larger academy. They are magnified because of the practical function of legal scholarship. The various audiences to whom legal scholarship is addressed can also amplify disagreements, if for no other reason than disputes over the value of addressing one or another of them. Nonetheless, without surrendering a commitment to critical evaluation, we should embrace the intellectual diversity reflected in the various approaches to legal inquiry in order to see what they tell us about the law and its institutions.

Recognition of the value of having various methodological approaches to the study of law should lead to modesty about what the specific approaches to legal inquiry can yield or what they can reveal about themselves. The calls that are sometimes heard to make scholarship less theoretical and more practical is one symptom of a misunderstanding of what the task of legal inquiry is as much as the criticism that is sometimes heard about "mere doctrinalists." Both the "practical" and the "theoretical" must cope with the unavoidable methodological problems of an analysis that is rooted in a context-dependent practical enterprise. This then gets us back to why this is an important inquiry. It gets us back to the questions of knowledge, and power and our role in defining their relationship.

* This article appears in the April 2004 AALS Newsletter.