I have already confessed to Dan Markel in another forum that I (a) used “under-theorization” in the title of a piece, although in my defense it was a comment on somebody’s else claim of under-theorization, and (b) I posted here four years ago in my typically turgid fashion about the use of the term. I also write a lot about the theory of theory. It’s because I spent so much time as a practitioner-theorist that I don’t think there’s a lot of difference at the “theory of theory” level between what practitioners do and what academics do. It’s just a different kind of theory.
Let me demonstrate this with two snippets about theory (offered after the break), one from my introduction to our symposium last year based on Charles Fried‘s Contract as Promise, and one from a piece I’m working on this summer in anticipation of a Connecticut Law Review symposium on the future of legal education.
[T]heory matters to everyday lawyer-theorists, not because it necessarily operates at the front of mind when lawyers or their clients transact or litigate contracts, but because it is a reality of the human condition that each of us makes sense of the world through our subjective frames and points of view. Ordinary people may not call that “theory,” but I have a capacious (and Kantian) view of theory as a priori organizing principles. Kant’s insight was that our minds are predisposed to find purpose and order in nature even though we have “absolutely no a priori reason for presuming” such purpose or order. Experience itself, says Kant, cannot prove to us the actual existence of such order; “there must then have preceded a rationalizing subtlety which only sportively introduces the concept of purpose into the nature of things, but which does not derive it from Objects or from their empirical cognition.”
Even in the hard sciences, descriptive theories, or explanations of the “is,” merge subtly with normative theories, or justifications of the “ought.” The reason is that we all seem to start with the usually unexamined presumption that the physical world, the “is,” has a discoverable order to it and we ought to be able to discover what that order is. In his concluding commentary to the symposium, Robert Scott touched on this. In academia, the presumption of order, and hence theoretical explanation, is the sine qua non of any conversation; a discussion that seems “anti-theory” or unduly capacious must avoid the charge that it is simply “lazy thinking masquerading as theory” or, worse, mere brute ipse dixit of Dean Scott’s bête noir, the “wise man.”
Here’s the other one:
[I]t occurred to me there were powerful metaphors for lawyer as counselor in the relationship between psychoanalyst and patient. In a reflection on the possibilities offered by therapy, one of my psychotherapist friends has observed, “[P]sychoanalysis has taught us that we are indoctrinating our patients while we are trying to help. Indoctrination goes both ways in the analytic encounter. The analyst attempts to learn the patient’s idiom, often through elucidating the patient’s hopes.” (STEVEN H. COOPER, OBJECTS OF HOPE: EXPLORING POSSIBILITY AND LIMIT IN PSYCHOANALYSIS xi.) What the therapist would call the patient’s hopes for psychic health through the clinical experience, I would call the client’s aims and desires for satisfaction by way of the legal process. Non-lawyers generally do not express those aims and desires in terms of legal theory any more than analysands express their hopes and fears in psychoanalytic theory. In those contexts, lawyers are interdisciplinary theorists, learning the client’s idiom, whether or not they are the decision-makers, and the only issue is the degree of influence on the decision itself.
Theory in this context is about derivation of meaning from circumstance, and it is a part of life, not just law or science.
As others have put it, when it’s “under-theorized,” it really means that it isn’t cast either in our kind of theory or in my particular theory.
Posted by Jeff Lipshaw on June 19, 2012 at 10:32 AM