Thread by @F_Brito_Bastos

Not an international lawyer but many of the concerns stated in this thoughtful post (if only for expressing an unpopular but principled opinion) apply to other areas of law. I don't think "apolitical neutrality of the law vs academic legal activism" is the right angle, though🧵/1

https://twitter.com/ejiltalk/status/1438021015733424132

It is the angle many QTs and comments post are taking. There is no doubt that the search for scientific truth in legal doctrine can't be equated with 'hard' sciences with more broadly accepted "truth criteria" and, in that sense, pure objectivity is never possible. Moreover... /2

Pure objectivity can never be achieved either because all interpreters approach the law with a bunch of implicit, often unconscious, "background assumptions"/preconceptions about what the rules are for, and the real-world nature of the object of those rules. That said, ... /3

I simply cannot be convinced by the arguments a) "since objectivity is an impossible ideal, legal scholars should stop pretending they can abide by it", b) "everything about the law is political, even the denial that legal doctrine is basically politics". Here's why... /4

As for a):
The critics of "legal objectivity" do have a point in that too often legal doctrine has pretended to 'state', or even 'reveal' (I kid you not) the 'law as it is'. Textbooks have historically been 'systematic expositions' of 'right interpretations of law'.../5

But where I think the critics don't get it right is that this (seemingly impossible) ideal of doctrinal political objectivity is a legacy of an old pedagogical tradition (certainly in continental Europe) of teaching law from the standpoint of the future (impartial) judge.../6

For many 'great legal masters', it wasn't about impartiality of law but cultivating habits of impartiality in students. Fine, but I don't get why we haven't moved on to teach law from the standpoint of other legal professions - judge, lawyer, official, and yes - activist.../7

Put differently - is the law or legal scholarship "apolitical and impartial"? No. lol.
Can impartiality of legal doctrine be *cultivated*? Yes, and it should. I regularly ask my students to find legal arguments *also* in favour of answers with which they personally disagree.../8

Because the ability to distance ourselves from our own background beliefs is a useful skill in every legal profession that should be at least *trained* - and remains especially valuable for future judges, who unlike scholars don't have the luxury of giving up on impartiality.../9

As for b) above - the claim that all legal doctrine is politics, including the denial that it is so - it has always felt like pretty simplistic reductionism to me. Do those scholars fail a student who comes up with plausible legal answers that they politically detest?.../10

If they hold that legal interpretation boils down to an interpreter's aim (conscious or not) of advancing political agendas, do those scholars still believe in there being a point to legislative reform (why not just interpret the law away until it perfectly fits our views?).../11

In any event: here's a bottom line. Distinct 'legal literary forms' require distinct things. Finding legal arguments to support a specific policy requires explicit recognition of an ab initio commitment to that policy; doctrine requires a cultivating habit of self-distance.../12

Legal doctrine isnt the place to advocate specific policies, but to try giving as many legal actors as possible as many legal arguments as possible.

Legal advocacy isnt the place to dilute politics with pretenses to impartiality.

Legal education is the right place for both./END

(Shoutout para a @leonorcaldeira, que tem mostrado bem porque é que as faculdades de direito deviam estar a treinar mais pessoas para legal advocacy)