2 - Abstractionism, Revisited

Summary

This chapter uncovers the theoretical dimensions of the controversy over knowledge highlighted in Chapter 1. I show how in this controversy, the demarcation between science and law, knowledge and judgment, the is and the ought is at stake. Tracing this distinction through both legal positivist thought and sociological approaches to the law, I emphasize in particular the limitations of such theoretical exercises. In their abstractionism, they fail to offer us the tools for thinking through, and thinking with, the controversy introduced in Chapter 1. The law-science conundrum, I argue, needs a pragmatic respecification. Drawing on pragmatist philosophy, the social study of knowledge practices, and ethnomethodology I seek to ask not, what is the law, but rather: where and how is it done? Neither do I want to know what (social) science, essentially, is. Again, the more productive question to ask is: how and where does it take place? And what are the performative effects of social scientists’ attempts to understand legal practice? Emphasizing actually occurring, unfolding legal practices over abstract “Law”, this chapter offers the conceptual tools necessary to venture into the field.