(1) The idea of the “meme” is quite useful for illustrating this point. The term was coined in Dawkins 1976 and was developed in Blackmore 1999. It is useful here because it divorces the idea from any cultural context of meaning, replication of a meme it is not a process that is concerned with understanding. The meme is the mental equivalent of the gene in the selfish gene analysis – it is that which uses organisms, including people, to propagate itself. Education, it is argued here, should be about those being educated, it is not enough to aspire to reproducing culture through people.

(2) An obvious example is economics, which has extended its subject matter from analyses of private markets and production to analyses of: public policy (Buchanan 1999); crime and marriage (Becker 1976); social mechanisms of trust (Seabright 2004); and even managing mutually assured destruction (Schelling 1980). There may be good reason to fear that “law and economics” is an area of legal theory that approaches the assimilation of law by economics. Indeed the so called “Coase theorem” assumes the subordination of law to economics (Stigler 1989-90).

(3) Rorty 2007 puts forward this definition: “The term “method” should be restricted to agreed-upon conventions for settling disputes between competing claims”: as being a less misleading use of the term “method” than treating it as synonymous with “research program”, “leading idea”, or “basic insight”, or “fundamental innovation”.

(4) Or “theoretical”, producing research addressed primarily to the research community, often tending towards introspective focus on issues of no apparent practical import, in terms of curriculum design stressing integration and abstract conceptualisation over concrete understanding.

(5) Or “applied”, producing research addressed primarily to some practitioner community, often tending towards a narrative of specific legal events of no generalised import, in terms of curriculum design stressing casuistic application to concrete situations for the advancement of some identifiable purpose.

(6) The problem is one of logic (or its inadequacies) and the theory of decision-making. The problem is known as Buridan’s ass, after Jean Buridan. The famous dilemma is given by Brewer’s Dictionary of Myth and Fable (1999) Cassell & Co, London, revised by Adrian Room as: “If a hungry ass were placed exactly between two haystacks in every respect equal, it would starve to death, because there would be no motive why it should go to one rather than to the other.” Obviously the problem is how decisions can be made rationally when there is no quality that places one solution above another in terms of desirability for the decision maker.

(7) I cannot resist the pull of a legal footnote here. Examples from property law are the express oral declaration of trust and the common intention constructive trust. The voluntary declaration of trust has long been recognised and rests on the capacity of the property owner to dispose of her property. The institutional trust rests upon the express common intention of the property owner and another, or of joint property owners, hence the name. There is often a dearth of reliable testimony of oral declaration, or of any such express intention, at the time the trust needs to be specified. The possibility of such trusts of personalty was recognised in the nineteenth century and was greeted with horror by the Courts (see Scales v Maude (1855) 6 De GM&G 43; 43 ER 1146; recanted in Jones v Lock (1865) LR 1 CH App 25; impact of reform of law of evidence realised in Forrest v Forrest (1865) Jan 34 LJ (NS) Ch 428). The late twentieth century saw a far more relaxed approach to personalty (see: Re Kayford Ltd [1975] 1 All ER 604; Paul v Constance [1977] 1 All ER 195) and in Gissing v Gissing [1971] AC 886 let loose the common intention constructive trust of land in the face of statutory hindrance (s. 53(1)(b) Law of Property Act 1925). Subsequent attempts to tame the beast (see: Burns v Burns [1984] 1 All ER 244; Lloyds Bank v Rosset [1989] Ch 350) have been less than successful. The area was last reviewed by the House of Lords in Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432.