Last week my local DA told me this joke: "What’s law? That’s when you’re arresting someone who has the right to remain silent. And what’s legal practice? That’s when you’re arresting someone who is guilty." I’m not sure it’s actually a joke. Not just because it’s not very funny. Poor ivory tower constitutional scholars like me are always told that we don't know about legal practice, that we don't care enough about the real world of law, and that there is a difference between law and legal practice. Well, there isn’t. There is no such thing as legal practice.
Me and my colleagues we’re in something that’s called Referendariat, a great German invention that makes young lawyers after completion of their JD go around for two years from civil to penal courts to administrative agencies to law firms. The idea is: To get some of that sweet legal practice. The one thing that we’re told over and over again is this: "Law – you’ve seen the theory, now look how it’s actually done". That’s great. We’re forced to do it (you don't get admitted to the bar if you don't), and we get paid very badly (some have to ask their parents for an iPhone) but what we learn is very interesting (it really is). Yet what we learn is not legal practice. Because there is no such thing as legal practice.
When lawyers talk about legal practice they generally mean two separate things:
1. There is much more to law than the law. There are ways that lawyers work, there is bureaucracy before you can render a judgment, you need a good secretary to run a legal office, you need to be prepared when you’re in court and to know how to prepare, you need to be good with people, you got to have a pen with you, you need to know how to organize your files. That’s very important. But it’s not law. They are skills. But not law.
2. The second thing that is meant by legal practice is this: What you learn at law school is one thing, what we do here (at the DA's office, at the court, at the firm), well, that’s something else. And that’s the interesting part. Because what this argument is mainly about is this: The law might say one thing, but we the practitioners we do it slightly differently. That’s not law either. That’s praeter legem. What my funny District Attorney (who is in charge of educating not me personally but a lot of other young lawyers), meant was that a lot of things that not just academia (they don't really care about scholarship at a DA's office) but especially higher courts present as chains for executive powers is not transferable into the real world, that it is – not practical. That might be true or untrue, but it is not the law. If the prosecution or the detective’s office does not follow a legal guideline as it is presented by courts or the legislature they are not within the law. What they do is practice. But it’s not legal practice.
There is no difference between law and its practice. Law is a normative order. It’s theory, and theory only. No matter how often you apply it, it remains what it is: law. There is no such thing as a sociological law; there is law and there is sociology (and, yes, I believe Pound would not smack me if he could). A court renders a judgment. That’s a judgment. It might be lawful and it might be unlawful (ask the Supreme Court), but it is not legal practice. A court decision decides a case. The proof of the pudding might be in the eating, but a pudding will not teach you how to cook. Law remains theory. And to point a legal scholar to legal practice is like asking how practical a theory is. A theory can never be practical. That’s why it’s a theory. And the fact that law is mere theory is not so bad, either. It means that law does not live within society, but is made by it (in a possibly democratic fashion). That’s a huge difference. (Some) practitioners will hate me for being such a Kelsen. But when you’re a lawyer being a theorist has a tiny, but essential advantage: You can watch the practitioners and observe much better whether what they do is all lawful or not. And that’s why I smiled to the District Attorney and said: "Sir, what can a poor boy do except to do constitutional law?" He didn’t smile. He didn’t know the Stones too well. I said: "That’s funny, Sir. They are practitioners."
Viktor,
ReplyDeleteThis is very interesting, though, being the legal realist that I am, and a fan of Roscoe Pound and Eugen Ehrlich, I think I pretty much disagree on every point.
There's much to say in the way of replying to your post, but I'll just focus on one point. Your distinction between law and legal practice, and then arguing that there is no such thing as legal practice, overlooks an important point, which is who determines what law is.
When you approach the question of what constitutes law, as opposed to practice, it seems to me you're doing it from the viewpoint of a scholar, who might be looking at law from the external viewpoint. However, when officials think about what law is, they look at law from the internal point of view. Obviously, I did not invent this distinction. I'm merely repeating H.L.A. Hart. A third way to look at law is to ask how the ordinary individual experiences the legal system.
Each actor will perceive law as something different, both in substance and in form. Your position seems to privilege one viewpoint, that of the scholar, over other ones. And yet, I don't think you gave a very compelling reason as to why that privilege should be granted, other than assuming that it does.
As a theorist, and a realist, I don't see much value in observing whether what officials do is "lawful". Given that lawfulness and legality are interpretive concepts, I believe scholars' time is better spent pursuing the more important question of what it is that official "do" and how that might deviate from what we thought they would do, given "the law". But this, again, just goes to show that "law" is experienced differently by different actors in the legal system rather than some actors acting "lawfully" and some not.