Legal Scholarship and the Expectations of Old, Western White Guys

Today’s Read:
Alonso Gurmendi and Paula Baldini Miranda da Cruz, Writing in International Law and Cultural Barriers (Part I), August 7, 2020, http://opiniojuris.org/2020/08/07/writing-in-international-law-and-cultural-barriers-part-i/

It’s getting to be that time of year. I’m staying afloat, and feeling OK and reasonably productive, but waves of emails and requests and things that need to be done ASAP are threatening to pull me under if I’m not careful. Alas, COVID hasn’t really changed the volume or urgency of the work in my world, I’m afraid. At least I don’t spend 90 minutes a day commuting right now. But whether I am always using that found 90 minutes productively is a different story.

Anyway, I wanted to get in a read before the crush of the fall semester is here. I did myself a favor and chose a short blog post this time, and I am so glad I did! This wonderful piece by Alonso Gurmendi and Paula Baldini Miranda da Cruz really got me thinking about language and legal commentary. It allowed me to further contemplate some of the thinking I was doing in my last blog post, in which I explored the legal canon, who decides what’s in it, and how librarians may be complicit in that system: a system that definitely fails to amplify minority voices.

Well. We who care about legal literature must ask ourselves what place foreign-trained legal scholars, especially those who are not native English speakers, have in that literature, mustn’t we?

As the authors of this piece point out, it’s not only about language abilities (although that is part of it). There’s a bigger-picture problem at play here, according to the authors: “peripheral scholars may be less represented at least partially because they communicate differently and have different things to say from those that are already part of the establishment of international law.” This establishment, as the authors point out, is “still Western, old, male, and white.”

The authors go on to discuss some significant differences in thinking and writing about law between the Western, English-speaking legal academy and legal scholars in the Global South. They explain how readers in North America have certain expectations of the format and organization of legal scholarly writing, as indicated by the American Journal of International Law’s tips for writers:

  • A structured introduction with a roadmap for the piece
  • Contextual explanations of the ideas in each section
  • A conclusion that restates the thesis and conclusions in brief

All of this must be written “in plain English, with clear statements and signposts.”

What if those stylistic and formatting suggestions directly contradict the traditions and preferences of the legal writing culture that you know and appreciate? Is the value of the piece diminished?

Of the AJIL tips for writers, the authors take issue with both extensive roadmapping in the introduction and a conclusion that repeats what was clearly stated in the article itself. They argue that this deprives readers not only of the enjoyment of taking in the ideas presented in the work as it unfolds, but also of the opportunity of contemplating the work and coming to their own conclusions.

The authors conclude by highlighting the work of Antonio Augusto Cancado Trindade, a Brazilian jurist who sits on the International Court of Justice and who they describe as “an undisputed giant of Latin American international law[.]” They cite a study, posted in the EJILTalk! blog by Marko Milanovic in 2012, that showed that, when Judge Trindade wrote in dissent of an ICJ ruling, he did so at significant length and complexity. Indeed, Milanovic characterized one of Judge Trindade’s opinions as “engag[ing] in extensive comparisons between the real and present victims of human rights violations to Sophocles’ Antigone and Electra.”

This, the authors point out, “is part of [Judge Trindade’s] writing culture as a Brazilian lawyer.” The authors elaborate on this point as follows:

“In Brazilian Constitutional case-law it simply is not at all uncommon for judges to make their points through elaborate theoretical elucubrations that would sound absolutely strange and unnecessary to non-Brazilian readers.”

If you are still reading at this point, you might think that I was trained in Brazilian law! Nothing could be further from the truth, although I do like to contemplate complicated ideas occasionally. And this short blog post gave me a lot to chew on, for which I am grateful.

To be all American about it, here is the bottom line for me. As an academic law librarian who works extensively with foreign students, I think I have an obligation to consider the legal traditions in which our students were educated before they came to the United States. This includes traditions of legal research and legal writing.

How can I help them acculturate to the American tradition of legal analysis and production of legal scholarship in a way that is not judgmental or dismissive? And how can I help build our library collection to ensure that our scholars have the sources that they need, whatever legal tradition they come from, to do their best thinking and writing?

Finally, is the canon of old, western white guys doing these scholars a disservice? If they see minority voices in our library collection, they too will know that there are seats at the table of legal scholarship for everyone. It’s something to think about anyway, as a new crop of LLM students arrives and we start to work together to navigate our collection, such as it stands today under the restraints of the COVID lockdown. It’s one of the many things that will be on my mind during the coming year.

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