We have, for 10 years, met Roberto Bergalli on a number of occasions.1Our encounters have always been fruitful and they are often quite memorable. The point of this intervention is that meetings with Bergalli usually result in changes in who we are, both intellectual and emotional. We are interested in this phenomenon. We often arrive to meet him thinking or feeling one thing and leave feeling and thinking in very different ways. Over time, he has supported our desire to combine attention to law and social relations and to see law in society. He has encouraged us and given us opportunities to grow. We write here of those transformative experiences and what we have tried to make of them. This, we think, is part of Bergalli’s inspiration and legacy. We think, in this regard, that there are principles for scholarship attributable to our association with Bergalli.
Our discussion of these principles is both personal and intellectual. We examine the nature of law in a number of different senses. The treatment is about passion in a field and action in institutional contexts. The discussion also feels like it is about Europe influencing America. For us, attending to those principles is also about the context in which ideas and action, thought and feeling come together. Our understanding of these issues comes from our efforts to carry some of the legacy of the 1960s into the 21st
Century. These are efforts encouraged by Bergalli and inspired by his example. There have been rocky periods in our scholarship and periods of tragic indifference from American colleagues but when we have been with Bergalli our sense of this enterprise of showing the political in law is renewed.
Years ago, as early participants in what became the Critical Legal Studies Movement, we wondered a good deal about thought and action. We called it praxis then and the orientation this aspect of social life had a number of scholarly adherents. Karl Klare was one,2and Alan Hunt another.3Klare wrote of a project in understanding law in practice and suggested developing the constitutive nature of law. Hunt gave serious social scientific backing to the project of studying ideology. But, it seems, too few thought much about law as praxis and ultimately even Klare disavowed his interest in order to step in line with what became the critical movement in law schools. After a while, in the 1980s and 1990s, it became hard, in the United States, for us as academics to keep the focus where it belonged. That is why, at least in part, we have kept coming back to Spain and to Roberto Bergalli.
We not only come to Spain from America but we work in the field of political science. This is a discipline generally constituted by abstraction, professed neutrality and apolitical, academic inquiry. Though we were drawn to the study of politics by an interest in politics, we were taught that the science of politics was should not be political. We also learned that, to a significant extent, it was the science of politics that controlled scholarship in politics departments in America. But, there is a delicate balance when considering bringing politics into scholarship. While the scientific orientation to politics tends to push politics out of our scholarship, there are also cases where scholars may find that it is too easy to link politics to social research. The result can be that the scholarship is dismissed in importance as simply political. We have sought to avoid that fate.
Years ago at a European Critical Legal Studies meeting, one of the last that was to be held for some time, we offered our perspective on law. This was an approach that sought a balance in the relationship between politics and science. We called this perspective "constitutive".4What we had in mind came out of The Amherst Seminar and was a development that responded to colleagues who seemed inclined to precipitously link ideology to political action. We felt the need to lay a foundation for social research on law. Mauricio Garcia-Villegas developed some of this history in a recent piece on the work of the seminar and its limits.5Later, and also in Europe, we developed an example of our position. Our argument was that the critique of legal positivism that had been prominent in America since the 1930s was an ideology. We said it wasn’t just "formalism" that organized thought about law but its...