Law as an Area and a Discipline

Statement about the conference “Areas and Disciplines” by Christoph Möllers

Are legal scholars as inclined to lead a national discourse as the program of this conference suggests? Or are they instead tending toward a micro-perspective that is both deeply contextualized and relatively formalistic? This latter combination may be a source of irritation and inspiration for other disciplines. It may also induce a certain intellectual narrowness. And because law is not a national but a micro-form within an informally and implicitly national context, there are two things that are difficult for lawyers to do, namely making their own context explicit and drawing relevant conclusions from a certain contextualization beyond mere “interesting observations”.

For those other disciplines interested in legal phenomena this might mean accepting the fact that law is emphatically a form, i.e. something that cannot be understood by drawing a simple distinction between norm and reality in which lawyers lead a fictitious discourse while sociologists/anthropologists describe what is “really” going on. Such a scheme – adapted from Marxist theory, vulgarized by American legal realism, and re-imported to the rest of the world – is destined to lead to a misapprehension of legal phenomena even if the practice of the law is not able to live up to its own formalist aspirations.

Area studies have hitherto only been an inspiration to law in a scattered and random fashion. In most countries most law departments can only cover a tiny part of the world, and what is called “international law” is generally the least representative element of the global legal order. It is in this setting that area studies provide a needed expertise, an irritation on legal issues for the law departments – an expertise that would otherwise be unavailable. Yet legally relevant areas like “Europe” or the “Commonwealth” have been constructed by the legal form itself – and there is, vice versa, no small irony in the fact that these are not the areas that area studies are interested in.