D. Legal Theory and Pedagogy: The Agora and the Scope of Law

As we noted in the introduction, the Agora both reflects and furthers a trend in legal scholarship and pedagogy related to the scope of both of these. In this last section we will expand on what we mean by this. The pedagogical controversy is rooted in questions about the purpose of legal education, namely, whether it is trade training and should focus on practical legal skills, or whether it should be conceived of as broader than this. This pedagogical controversy is intimately connected with a controversy about the scope of legal theory and law. There are different ways of conceiving of law and different accounts of what the object of investigation for a legal scholar is. Does the word “law” designate the organizational instruments of state power, or should we think of “law” as referring to a more diverse set of social-organizational systems that may have greater or less affinity and connection with state law? The distinction can be summed up as the difference between a positivist account of law as a certain set of state institutions, and a more sociological account that finds many different “law-like” institutions overlapping each other whose sources of power or legitimacy and whose boundaries do not correspond neatly with those of the state and its law.

Despite their intimate connection these controversies are not about precisely the same issue. Nor is it the case that choosing sides in either of these controversies settles normative issues about what particular laws or forms of law are desirable for the human good. It is likely the case, however, that choosing the side of a more sociologically oriented jurisprudence in the legal theoretical argument will tend to push one to favor a broader curriculum in legal education. But even this does not follow necessarily. One might think that there is a wide range of law-like phenomena that are neither exactly state nor international...