CHAPTER 43 LAW AS AN AUTONOMOUS DISCIPLINE BRIAN H. BIX 1 INTRODUCTION Tu ‘autonomy of law’ refers to a number of related but distinct claims: (1) that legal reasoning is different from other forms of reasoning; (2) that legal decision-making is different from other forms of decision-making; (3) that legal reasoning and decision-making are sufficient to themselves, that they neither need help from other approaches nor would they be significantly improved by such help; and (4) that legal scholarship should be about distinctively legal topics (often referred to as ‘legal doctrine’) and is not or should not be about other topics. ‘While there had been prominent advocates for the autonomy of law in the nine- teenth and early twentieth centuries, the strong trend of recent decades has been away from seeing law as an autonomous discipline. The consensus in scholarly circles is that legal reasoning cannot be adequate without supplement, and that, in any event, Jaw has much to lear from other disciplines, and has in fact been successful, at least in part, in adapting and adopting other forms of knowledge. Ifanything, there is now Tam grateful to Neil Duxbury, William A. Edmundson, and David McGowan for their comments and suggestions.976 LAW AS AN AUTONOMOUS DISCIPLINE some risk that scholars will underestimate the autonomy of law—not give enough attention to what is specific to law and to legal reasoning, Itremains valuable to focus on what is distinctive to law—that its, in most legal systems, guidance through gen- eral rules; that it may involve an interaction of law-making and law-applying institu- tions (e.g. courts applying the rules passed by legislatures); and that (in common law systems) the application of rules will be done through a judicial system that both authorizes judicial law-making and has important rules of stare decisis (rules of hierarchy and rules about the way that later decisions are constrained by earlier deci- sions). All of these features may contribute to a form of reasoning that is distinctive, if not entirely autonomous. Acclaim about the autonomy of law could be understood in three different ways: descriptively, analytically, and prescriptively. Descriptively, the question is what level of autonomy is assumed or encouraged by current practices within a particular legal system, The form of judicial reasoning and the approach to legal education within a community may be more or less autonomous. As has already been noted, and will be discussed in greater detail below, the general trend in both England and the United States, in both legal reasoning and legal education, has been asvay from legal auton- omy, towards a more interdisciplinary approach. Analytically, the question is whether law, by its nature, either must be or cannot beautonomous. For an analytical claim, one would investigate the ways in which legal reasoning is purportedly autonomous, and see whether such claims stand up to close scrutiny. Prescriptively, one can argue that current practices should (or should not) be changed to incorporate greater or lesser dependence on other disciplines, either in judicial decision-making or in legal educa- tion. (A desire for greater use of other disciplines can be, but need not be, connected with an argument about the autonomy of legal reasoning and the value of traditional doctrinal legal scholarship. One could argue that legal doctrinal analysis requires no supplement, but would none the less be improved by ideas from other disciplines.) Obviously, there are connections between, on the one hand, the analytical claim re- garding autonomy and the descriptive and prescriptive claims on the other hand. If onebelieves that legal reasoning either must be or cannot beautonomous, then this obvi- ously constrains what one can sensibly prescribe for the practice, and must also affect the description of the practice (e.g. it may be, as some of the American legal realists argued, that judges portray their decisions as autonomous when (according to the real- ists’ analytical view) that cannot be the case, and thus the judges must be attempting to deceive others, or at least are unintentionally deceiving themselves (e.g. Frank,1931) ). 2 LeGat REASONING Claims about the autonomy of law (or its absence) are usually made in one of two contexts: (1) in legal reasoning (one must be careful not to equate legal and judicialBRIAN H.BIX 977 reasoning; while judicial reasoning is often considered the paradigmatic site of legal reasoning, itis not the only place where legal reasoning takes place, and it is unwise to assume that all forms of legal reasoning are merely some sort of imitation of what judges do (Raz, 1994: 310-31) ); or (2) in legal education. As regards legal reasoning, ‘autonomy’ should be understood in a relative way. No one has ever seriously claimed that law is a way of thinking entirely of its own category, and legal reasoning, even when most autonomous, does not shun (for example) basic rules of logic and infer- ence, While there are times when the legal profession seems to depend on a language and a way of thinking entirely foreign to common sense and common language, this is only the appearance of the extremes of the practice. As Joseph Raz has pointed out (Raz, 2002: 1-2), the fact that many words are used in a legal context with their con- ventional meaning entails that certain forms of conventional inference also apply (if one says that the object is ‘yellow; it follows, by the nature of the term ascribed, that object is colored’). At the other extreme, those who claim that legal reasoning is in no way distinct do not necessarily claim that there is no need for legal experts, and no such thing as legal expertise, For even if there is no special way of reasoning legally, decisions about what the law requires would need a knowledge of the sources of law, a set of rules, principles, and procedures that (in most societies) are extensive and separate from the standards and practices of other normative systems (e.g. conven- tional morality or religion). ‘Those who argue for the substantial autonomy of law see the form(s) of reasoning and decision-making used within the law (whether this means in all legal systems, due to the ‘essential nature’ of law, or in a particular legal system) as being distinctly different from the forms of reasoning and decision-making of, for example, practical reasoning, moral theory, and politics. When King James I argued that since law was grounded on reason, the King could decide cases as well as any judge, Lord Edward Coke responded that legal disputes ‘are not to be decided by natural Reason butby the artificial Reason and Judgment of Law, which Lawis an Act which requires long Study and experience, before that a Man can attain to the Cognizance of it... (Coke, 1907: 1343). This ‘artificial reason’ has often been equated with the use of analogical reason- ing and precedent within law (e.g. Fried, 1981). If there is an argument to be made for an approach to decision-making that is distinctively legal (both separate from non- legal forms of decision-making, and common from one legal system to the next), it would likely be one that emphasized certain aspects of (most) legal systems: institu- tional decision-making, a hierarchy of decision-makers, and an effort to systematize the rules (Raz, 2002). And because law is intended as a practical guide for action, there isa pressure in the interpretation and application of legal norms towards consistency, coherence, stability, predictability, and finality. Those pressures are sometimes at ten- sion with the desire that the outcomes be fair and just (with ‘justice’ here referring to those aspects of justice that go beyond ‘following the rules laid down’ that is, go- ing beyond meeting reasonable expectations and reasonable reliance). These tend to combine into rules of ‘precedent, ‘statutory interpretation; and ‘constitutional