‘Every recognized intellectual discipline has gone through a process of self-legitimization not unlike that involved in the founding of nations. All disciplines have their fictive histories; all are imagined communities which invoke myths of the past as a means of both charting their own internal development and unity, and also drawing boundaries between themselves and other neighbouring disciplines’.
Anthony Giddens (1995:5)
The world of Higher Education is changing. Old stereotypes of lone scholars residing in timeless Ivory Towers, if ever true, no longer resonate in an age of mass University attendance where students are regarded as consumers and where great (perhaps overriding) emphasis is placed upon the impact of research as the manifestation of its worth. In our ‘on demand’ era an excess of content is always available, waiting to be binged at a time and place that suits the consumer. An individualised consumption culture exists that is intuitively at odds with the collective learning activity that a university has traditionally encapsulated. Researchers are cast adrift in a sea of scholarly outputs. Buckled shelves in libraries have been superseded by an online world where a plethora of books, articles, blog-posts are consulted (and perhaps read) only after they have been found by search engines. This culture of excess arguably makes universities even more important. In the lightning-paced, ultra-superficial world where information (but not knowledge) is at our finger-tips, where social media algorithms reinforce our own biases and where everyone is a journalist liking, tweeting and blogging content with little attention paid to sources or the correctness of the information, it is arguably even more important to have spaces to think, to pause and to critique; places where questions are even more important than answers and where not only all options are on the table but it is even questioned whether or not there is a need for that table.
These changes have impacted upon legal education. The Law School’s place within the academy remains characterised by some ill-ease. Law Schools’ links with the legal profession but location within universities means that Law Schools are often torn between being academic and vocational. Their increased emphasis upon research in recent years, shaped by the Research Excellence Framework and its predecessors has been manifest in the way that Law lecturers are now more likely to possess a PhD than have experience in legal practice. This nowsits uncomfortably with their need to teach a body of knowledge and a skill-set prescribed by regulatory bodies of professions that many Law students will follow their tutors in not entering. Though the closing years of the twentieth century and opening years of the twenty-first century has seen an explosion of interest in interdisciplinary research (reflected most clearly perhaps in doctoral research), the Law School and the Law Library is often regarded as being isolated from other parts of the university. There remains a suspicion that their activities are distinct. Erroneously, legal reasoning and analytical skills are still not commonly regarded as being research methods. And tensions remain within Law Schools surrounding divisions between (and the perceived relative value of)doctrinal work that situates legal academia within the world of legal practice and the socio-legal work that situates legal scholars within the wider context of the academy. Even where academic isolationism has been overcome, the plurality of disciplinary perspectives that can be applied to Law has often been over-whelming. The work of Mathias Siems and Daithi Mac Sithigh (2012) seeking to ‘map legal research’ in the United Kingdom found that legal scholarship was faced by a choice as to ‘whether to “go American” in moving closer to social sciences, or “go German” in remaining closer to the humanities’.This dilemma is reflected by the way in which funding for legal research projects is available from both the Arts & Humanities Research Council (AHRC) and the Economic and Social Research Council (ESRC). Law Schools are increasingly characterised by a plurality of approaches, presumptions and values which at first glimpse often appear to be contradictory.
The pace of change within Higher Education as a whole and within legal education in particular has meant that there has been little chance to take a step back to explore, analyse and question the overall trajectory, to look at how legal education has changed and how it is likely to develop in the future. However, the pace of change also makes such an analysis timely and important. This is particularly true at the level of legal sub-disciplines.Both academics and practitioners recognise and perpetuate (albeit slightly different) sub-disciplines within Law, including the distinction between private and public law, the identification of bodies of law relating to distinct legal actions (such as the law of Tort, Contract and Trusts) as well as sub-disciplines that focus on certain legal relationships (such as Employment Law, Sports Law or Family Law).Such labels – like all labels – are, of course, rough and ready classifications of convenience that are the product of history, culture and politics with the distinctions made never being absolute. However, although overlap and movement between sub-disciplines is commonplace, legal sub-disciplines are entrenched. Like any typology or classification, the use of legal sub-disciplines is a helpful means of identifying and sorting primary and secondary sources. However, it is vital that the artificial and constructed nature of the categorisation is not forgotten. The labels we give legal sub-discipline invariably identify not only a bespoke body of law and practice but also an identifiable scholarly community. Academic lawyers tend to self-identify themselves by reference to one or more legal sub-disciplines (‘I am an expert in Tort Law’, ‘I teach Employment Law’ and so on) and much activity occurs at a sub-discipline level both in terms of teaching (note the overabundance of textbooks) and research (with academic books and legal conferences being divided more often than not upon sub-disciplinary lines).
As Roger Cotterrell (1995) has pointed out, academic disciplines need to be understood ‘primarily as social phenomena’. This is equally true of sub-disciplines; they need to be understood as the social creation of those who work in each knowledge field. In the words of Anthony Giddens (1995:5), disciplines (and by implication sub-disciplines) develop their own ‘fictive histories’. They form their own identities, deciding what is included and what is excluded, what is valued and devalued and what methodological and theoretical approaches are to be embraced and which are to be shunned. Sub-disciplines define themselves in both positive and negative terms and by distinguishing themselves from others. Most of this is achieved implicitly, the unspoken decisions that inform the content of syllabuses, textbooks, journals and book series. Yet, this can be hugely influential self-perpetuating a particular way of studying the sub-discipline. And it can also be constraining, excluding work and approaches.
The Leading Works book series is designed to fire critical light at the way in which sub-disciplines regard themselves and perpetuate their identity. It asks leading and emerging scholars in the fieldto select and analyse a ‘leading work’. The intention is to use these leading works as a means to explore, analyse and critique the development of the sub-discipline. The objectives of the Leading Works series are:
(i) To map current understandings of legal sub-disciplines by identifying leading works in them;
(ii) To show how these works give identity to the legal sub-disciplines, shaping them and plotting their development; and
(iii) To provide a vehicle for critique of the way the works constitute the legal sub-disciplines.
The chapters explore the likely implications and applications of the leading work upon the sub-discipline in question. Most leading works will be chosen because they havecontributed internationally to the development of their sub-discipline as a whole. Following the insights of Cotterrell and Giddens, discussion of those works is likely to be in part autobiographical, exploring how the work in question has impacted upon the contributor’s own scholarship and understanding of the sub-discipline in question. However, leading works will also include works that have had little influence on the field but should have done. In these chapters, contributors will explain why the work has been important for them, the consequences that ignoring the work has had upon the sub-discipline and how the work could transform the field. The Leading Works series will also include chapters by contributors are critical of works have limited the sub-discipline. Contributors will discuss how such works have reduced the sub-discipline by what they exclude either implicitly or explicitly.
The Leading Works series is designed to unpack and critique the architecture of Law School understandings of law and of particular legal sub-disciplines. The questions of what constitutes a discipline and sub-discipline and how these fields of knowledge develop in rapidly changing times will be central. The format provides a critique of the conventional canons within legal sub-disciplines and some chapters will explicitly focus on gender, race, class, disabilities, or age inequalities to critique the way in which the sub-discipline has developed. Each book, as a whole, is intended to assess the development of the sub-discipline to date and comment on its potential future development. This will come to the fore in the introductory and concluding chapters: the introductory chapter provides an account of the development of the sub-discipline highlighting the main tensions while the concluding chapter reflects upon what the nominated leading works suggests in terms of the future development of the sub-discipline.
It should be noted that the leading works chosen are not meant to be exhaustive; they are simply illustrative and a means by which the contributors reflect upon the often unspoken question about how and why a sub-discipline has developed in the way that it has and its likely and desired future development. The approach rather is akin to Radio Four’s Desert Island Discs or BBC One’s Room 101. Each contributor has been given a free choice in their selection of leading works. The definition of the term ‘leading work’ is determined by each contributor.It includes books, book chapters, articles and any other medium that has been or should have been influential in the sub-discipline. There is no restriction on the choice of leading works in terms of geography or discipline. However, since the way in which sub-disciplines develop varies geographically, in most books the contributors themselves will besought only from the UK and Ireland so that the book as a whole can reflect upon the development of the sub-discipline there.
Contributors have also been asked to follow a prescribed format so that comparisons can be drawn. The leading works essays are presented according to the names of the contributors in alphabetical order. The title of each chapter includes the name of the leading work in Italics. Each chapter follows a set grid and will comprise of four sections. The first, ‘The Work’, introduces both the author and the leading work. The second, ‘The Context’, situates the chosen work within the literature and within the sub-discipline as a whole. The third, ‘The Significance’, is the main part of each chapter: the analysis and discussion of the reason that the chosen work leads scholars in new directions. The fourth and final part, ‘The Legacy’ provides the conclusion, summarising the arguments of the chapter as to whether and if so why it is a leading work and also reflecting on the likely effect the leading work will have in the future.
R Cotterrell, (1995) Law’s Community (Clarendon Press)
A Giddens, (1995) Politics, Sociology and Social Theory (Polity Press)
M M Siems and D Mac Sithigh, (2012) ‘Mapping Legal Research. Cambridge Law Journal 651
* This introduction was originally published in R Sandberg, Leading Works in Law and Religion (Routledge, 2019).