Engaged Scholarship as Method and Vocation

ed its intellectual apparatus can be, is fundamentally highly engaged with the real social world, although one keeps wanting to urge its practitioners to get beneath their assumptions and closer to the street. My work with Bosnian women, embodied in litigation, prosecution, and adjudication, is generating new definitions of and accountability for rape, new understandings of its place in conflict, and new models for victim participation in defining and vindicating international human rights. 22 It all emerged from women close to the ground in war and genocide. Andrea Dworkin's and my work, which proposed to legally empower people abused through pornography, emerged directly from their experiences and moved the theory of a subject stuck for centuries. 23 By contrast, much legal scholarship, from the doctrinal to the postmodern, makes an effort to be as distant from the real world of the law's lived roots and impact as it possibly can. Its above-the-fray stance defines the fray as akin to the medieval rabble, the perceived low-lifes who, however fashionable as objects of study, remain, along with the grittier and more unpleasant realities of their lives, decidedly unfashionable as members of the faculty. By distinction, from corporate litigation to state department advising, the breath of real air blows through engaged work, if permitted to. For life to make new law, forge new understandings of law's meanings, and create new theories, the life of the problem and the life of the law of the problem must both be engaged, in practice, directly. This method is risky in a hostile professional atmosphere but the upside gains can be big. The legal claim for sexual harassment as sex discrimination, for example, emerged from immersion in women's experiences of sexual abuse in hierarchical contexts, about which nothing was being done. It became a law school paper that was used as the basis for rulings establishing the claim, which turned into a book analyzing the reality of the experiences and the theory behind the rulings that 22. Kadic v. Karadii, 70 F.3d 232 (2d Cir. 1995); Catharine A. MacKinnon, Rape, Genocide and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994). 23. See Catharine A. MacKinnon, The Roar on the Other Side of Silence, in IN HARM'S WAY: THE PORNOGRAPHY CIVIL RIGHTS HEARINGS 3-24 (Catharine A. MacKinnon & Andrea Dworkin eds., 1997). 202 [Vol. 22:2 Engaged Scholarship as Method and Vocation the paper had participated in creating. So now there is a law against sexual harassment and (oh yeah) theory books too. Notice, the trajectory was not to think up an idea from reading books, scan the horizon for victims to use to test it out, and then to write about the results of test cases brought. It was being picked out to listen to victims to address an urgent problem that had yet to be solved, to have to create the theories that adequately responded to their situation because existing theories did not, and thereby to create new legal theory and legal change. To connect these points to conventional politics, it is my observation that, in the legal scholarly world, liberals and conservatives tend to relate differently to reality and to ideas. Conservatives are more open to reality; liberals are more open to ideas. Conservatives are more interested in reality so are better at seeing how things are. Liberals are more interested in thinking about whatever it is they think about (usually the ideas of other liberals), so tend to be better at that. Methodologically, conservatives are thus grounded but stuck in the mud, and liberals soar in flight but are unable to land. In the terms of this talk, conservatives tend to be characterized more by engagement with the world, legal and social, as liberals have become ever more engaged with the academy. Hence the liberals' children, the postmodemists.25 And the hiring practices of most top law schools. And many elections. But I digress. Engaged scholarship at its best is both grounded and theoretical, actively involved in the world of its subject matter, and for that reason, able to think about it in fresh ways. The work may be "relevant," or involved in "law reform," the typical catch-phrases, or not. Submersion in the real-world reality of its subject makes it better, deeper, broader as scholarship; its walk on the street teaches what no book yet does. On the cognitive level, to be engaged in the sense I mean is to take the inevitability of location and the self-conscious immersion in reality as a source of knowledge and inspiration rather than as a barrier to thought and action. Being shaped by the social reality being studied-being consciously up close and personal with it-is its method. Paradoxically, just as claiming the particularities of the self who works can make the work less self-involved, immersion in the constrictions of the world can give the work a wider vision. At this point, it becomes unnecessary to 24. The book is CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979). The prior student paper of the same title is on file in my archive at the Schlesinger Library, Radcliffe College, with a copy in the Lillian Goldman Law Library at Yale Law School. 25. Conservative commentator David Brooks helped me find some of the words for this. See David Brooks, The Wonks' Loya Jirga, N.Y. TIMES, Dec. 14, 2004, at A33 ("[Y]ou have to remember that Republicans have a different relationship to ideas than Democrats. When Democrats open their mouths, they try to say something interesting. If the true thing is obvious and boring, the liberal person will go off and say something original, even if it is completely idiotic. This is how deconstructionism got started."). 2010] 203 Yale Journal of Law and Feminism discuss feminism as method. It works for over half of humanity. Wouldn't you think it might work, self-critically, for the other half? Grounded theory of this sort is involved with the world of its subject as well as with creating the law that refers to and emerges from its world. From practice in at once the Marxist and legal senses of the word, you know what is real, because you know what the world was like before your piece of its practice was there. The discipline of reality born of engagement, including responsibility for consequences, sharpens the faculties, a bit like knowing you will be shot at dawn. The self-imposed uselessness of disengaged method, the superiority of its Olympian pose, offers a false freedom, and it is predicated, I will again hazard, on a fear of mattering, which cannot be avoided for fear of mattering. The pose of disengagement protects ignorance, ensures aridity, and virtually guarantees that nothing much, surely little new, will come from the legal academy-not to mention its destructiveness to diverse creativity. Grounded involvement, I am saying, is where real theory comes from, where new ideas are running around on the hoof, as well as how you know what you know and what you don't know, hence how you come to have anything worth saying. I am not saying that the only test of value in legal scholarship is value in use. I am saying that there is real value, including scholarly value, in being real. A key methodological difference between scholarship that embraces its engagement, and scholarship that keeps trying to disengage from the sticky grasp of the real world, can be seen in contrasting a 1920 poem by Robert Frost, with another written around 1976. You know that one by Robert Frost where he kneels at wells and sees only his own reflection? Then one day, just when he thinks he actually sees something down there at the bottom of that well, a drop ripples the water: "What was that whiteness? / Truth? A pebble of quartz? For once, then, something." 26 Did he see it? Was it really there? At least he knows that his image, before, wasn't "something." Something, for once, was out there. About all that, with the law in mind, this other poem by legal scholar Gerald Torres says this: Why the WorldAin't Obvious