Symbiotic Legal Theory and Legal Practice: Advocating a Common Sense Jurisprudence of Law and Practical Applications

摘要

Lawyers and legal academics are waging a fierce war over the soul of legal education in the United States. The various battles in this war include disputes over the proper emphasis on teaching versus scholarship; the need for clinical, practical, or transaction-oriented education versus the need for theoretical education; and the need for traditional doctrinal work versus the need for interdisciplinary or more liberal arts-oriented education within law schools. The war also plays itself out in discussions over law school hiring and tenure decisions.In this Article I urge that practice and even the most abstract theory are complementary, not contradictory. They can and should be integrated symbiotically. Thus, I vehemently reject many practitionersu27 position that abstract legal theory is generally useless intellectual self-indulgence. I similarly reject the extremist academic view that legal practice is brain-deadening and merits minimal attention in law schools. Rather, I believe that even the most seemingly u22high fallutinu22 theories can provide practical assistance to lawyers solving u22nuts and boltsu22 real world problems. Specifically, I advocate a common sense jurisprudence toward law and its practical applications. This jurisprudence includes three basic tenets. First, it contends that theories should be drawn from real world phenomena. Second, it posits that theorists should attempt to devise solutions that have some chance of success given existing political and economic conditions. Third, the common sense jurisprudence calls upon theorists to explain or package their works so as to make them accessible and useful to practicing attorneys.