Legal Reasoning as a Field of Knowledge Production: Luhmann, Bourdieu and Law’s Autonomy

Abstract

This paper pursues an improved theoretical understanding of the particular position of legal rationality in relation to other, competing, modes of thinking about human behaviour and social institutions. Against the background of the existing literature on the role of scientific expert evidence in legal proceedings, the paper critically reconstructs Luhmann’s arguments concerning the combined normative or operational “closure” and “cognitive openness” of the legal system, and relates these arguments to Bourdieu’s work on the internal functioning of the juridical “field”. It then puts those conceptual insights “to work” with reference to a number of empirical examples of the role of extra-legal forms of knowledge - in particular, history and anthropology - within the Australian High Court and Federal Court jurisprudence regarding native title.