Book Review: The Mind and Method of the Legal Academic

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Smits, Jan M. The Mind and Method of the Legal Academic. Northampton, Mass.: Edward Elgar, 2012. 192p. $110. ISBN: 978-0-85793-654-7.

Law schools have dual and sometimes competing identities. They are striving to both provide professional training to would-be attorneys and produce legal scholarship. Managing this tension between these roles as professional schools and scholarly institutions is a major challenge for legal education. Smits, a law professor in the Netherlands, argues for an independent academic identity for law, or legal science. Smits sees law's claim as an independent academic discipline being challenged.

Smits tries to explain what makes law distinctive a field of academic study. He concludes that law seeks to answer the question, "what ought we to do legally?" Legal studies are inherently normative, and definitive answers are impossible without knowing the jurisdictional and factual context. This means that seeking definite answers about "what the law is" (analogous to what Americans call black-letter law) is less legal scholarship than trade craft.

Smits' question also reflects his view on the nature of law. He rejects both theories of natural law (law exists independently of humans and society) and positive law (law is constructed by society). He views law as the product of natural selection. As traits persist or disappear in species, depending on how well they adapt to the environment, so legal solutions to problems will be adopted or rejected, depending on how well they fit with the circumstances in various jurisdictions.

In Smits's view, legal academics should seek not to find definitive answers to legal questions, but rather articulate and analyze all relevant arguments for deciding how people should behave legally. This open-ended inquiry invites all types of research methods, so no particular methodology should be regarded as intrinsically better than another. Good legal scholarship should be creative and challenge conventional wisdom. While Smits thinks interdisciplinary research should be encouraged, he is concerned that law is limiting itself by focusing on empirical research methods; theoretical and doctrinal methods are also worthwhile.

A professor at Maastricht University, The Netherlands, Smits is mostly thinking of the European legal academy, which is different in some respects from the American legal education system. Law can be studied at the undergraduate level, and research programs are evaluated at both the national and super-national (European Union) levels. American law schools are mentioned a few times, mainly as contrasting examples.

The book has some relevance to American law schools, though, and provides an articulate argument for the value of legal scholarship. Given the pressure on law schools to produce more "practice-ready" graduates, Smits's view of law schools as more of academic institutions than professional training centers will be in the minority for some time.

Overall, the book will fit well in academic collections on legal scholarship or European legal education. Page count should not be a decisive factor for collection development, but at $110 for less than two hundred pages, the book is too expensive for what it offers. The book is not essential for any collection, but it is worth watching for at a lower price.

Benjamin J. Keele, Research and Instructional Services Librarian, Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law

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