Legal Theory & Its Children

P.S. to post below (and countless ones before that):

An example of the theoretical tire hitting the realistic road is discussed at Volokh Prompted by Neil Katyal’s “extensive review of Jack Goldsmith’s The Terror Presidency: Law and Judgment Inside the Bush Administration in The New Republic. ” The comments cover familiar ground:

The trouble with academics giving advice is often that in the academy there is no such thing as failure. There are too often only ideas and various forms of mental gymnastics, where one performance, no matter how bizarre, tops another.

Without failures–of the sort that actual humans suffer in their work every day–important lessons cannot be learned, and it is that learning that guides good judgment and sensible action.

But, of course, interweaving the theoretical and the practical – and recognizing when the real disproves the theory – gives us the more broadly useful.

Sometimes I wonder if some of this isn’t represented by – or caused by – the refusal of academics to accept the fact that certain theories of government have proved in real world applications to fail after taking tragic tolls on the experimenters. In re to such theories, another commentor seems oblivious of the rather obvious fact that human nature longs for a strong man in times of uncertainty – something any reading of Sophocles might have helped us understand. The distinction between instincts which are universal and the cultural and individual application of those instincts will always be complicated; our generation seems to understand human nature little better than the Greeks did – perhaps because so many are convinced it doesn’t exist.

Related posts:
Ranting on a Rant
An Emily Litella Moment

3 thoughts on “Legal Theory & Its Children”

  1. Thanks for a great post. It takes me back to my active days in the foreign aid world. The quoted paragraph is spot on with “foreign aid officials” substituted for “academics.”

  2. I have come around to the view that academics choose theories based on how much they directly or indirectly flatter academics. There really doesn’t seem to be any other criteria for why one theory gets accepted and another does not. Certainly facts, even massive obvious ones, don’t seem to make much impact.

    I remember all the many theories I was taught in college about how the missteps and malice of the West triggered and maintained the Cold War. I was taught that the Cold War would end or at least cool further only when the West changed its behavior. In fact, the Cold War ended when communism and its aggressive ideology ended and not when the West changed. Documents from the former Soviet Union showed that Stalin planned the conflict with the West before WWII even ended. There was never anything that anyone in the West could have done to prevent the conflict. Yet, none of this sunk into the thinking of most academics in the least.

  3. Well, given the American communism in America of the thirties, Stalin’s vision arose not during WWII but earlier – Workers of the World unite. But the same tendency to see the West at fault when theories of Muslim world domination began long ago is still at work.

    I don’t think academics are different from other people – they always want to be right. The problem is that they aren’t hit over the head when they are wrong. It’s buying into a peculiar set of values that makes them devalue the very thing they have been hired to preserve that pisses me off.

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