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as sources of legal argument and, over time, of systemic change.
Emotion is not ethics. Neither vehemence nor polemic constitute philosophy.
The passage of emotion, the transmission of feelings of hate or revolt into judicial
legislation raises questions that are both broader and more intransigent than those
that legal philosophy traditionally addresses. There is no question that as with
his polemics against casebooks and law teaching, so too with his assessment of
jurisprudence, Llewellyn passionately desired an opening of the boundaries of
philosophy, a broader conversation, with participants in the guild, on the bench
and in the academy. Dialogue was to cross the boundaries of specialization, ivory
218 Peter Goodrich

tower and court practice, contemplation and action. First, however, motive. He was
evidently himself emotional, here meaning impetuous, frustrated, vociferous, and
at times angry. Consider the asterisk footnote, attached to the title of the article,
where the dual thesis is stated in nuce and the full gamut of the author™s emotions
are on unguarded display.
The asterisk footnote now tends to play the role of listing institutional benefac-
tors, in¬‚uential colleagues, student assistants, and the circumstances surrounding
the production of the article. It is largely a listing of names, patrons, and gratulants.
The older and rarer asterisk footnote was more likely to comment, converse, and
indicate the motive for the intervention. Instance and exemplar: “I feel my wat-
tles grow red as I recall the shock with which, as a dyed-in-the-wool commercial
lawyer, I met property phases of mortgage law which left me gasping” (Llewellyn
1934: 205n— ). Wattles growing red is a synechdoche, part for whole, red face, or
more accurately crimson gorge, for the totality, the body enraged, for anger. It is a
euphemism of sorts but also a signal of vehemence and revolt at the incoherence of
precedent. What, after all, are wattles? There are two possible root meanings. The
¬rst and more humanistic, and hence here more relevant, is from the Anglo-Saxon
watla, meaning sticks or rods used in bundles to make walls or thatch (Nowell
1952). The Latin equivalent is tegulae, meaning tiles but in either instance the
¬gurative meaning is of throat, neck, or face becoming red with embarrassment,
shock, and rage. That the reference to rods and sticks twined together also has
phallic connotations and is suggestive of desire, tumescence, ardor, also bears a
mention with respect both to what the humanist lawyer desires and also as to how
it is to be divined and reproduced.
The alternate root of wattle, is a Middle English metathesis from watel, meaning
a pack, a knapsack, or wallet or envelope. The envelope, the skin, the purse grows
heated and red. Again the color is a sign with complicated references. Visible
blood, according to Aristotle, is always a sign of a wound, and here a blushing
harm. The engorged gorge speaks volumes without speaking at all. More than that,
and with a view to the desire for science, certainty, and prediction that PAL also
evinces, it has to be noticed that wallet or purse have both sexual and (related)
economic connotations. That the purse or wallet grows red again suggests desire, an
invaginated want, but it equally connotes a warming of the wallet, the implication
of money and wealth, or for lawyers, fees and the protracted payments available
through caviling over distinctions, ambiguities, opacities, and other undecidables.
The purse will pull the strings, the wallet instigate the (in)action, or simplest of all,
money will talk. The implication is that the economic will determine, and, if so,
then law and economics will be the future science of legal prediction, the source of
the certainties that Lon Fuller believed the new millennium should bring.
If the red wattles are signs of a malaise or impatience, it is initially with the
paucity of philosophies that rarely meet on the same plane of discourse as that of
law. It is a frustration with the absence of the “great man” (Llewellyn 1934: 205n— ),
but more concretely and immediately still, it is with the failure of legal education.
Llewellyn™s wattles grow red because students are not given an adequate education
in law and speci¬cally they are not given a clear view of the “difference in ˜feel™
and tendency” of decisions in different substantive domains of law and in different
Dicta 219

epochs. Law students are given no feel for what is going on, the down and dirty
of negotiation, advocacy, and judgment. They aren™t taught how to read, nobody
bothers to give them the humanistic techniques, the philological or historical tools,
the hermeneutic and rhetorical acumen that alone will bridge the gap between
classroom and lifeworld. And then, last words, ultimatum: “Nor does anyone
bother to present to [the student] the difference between logic and persuasion, nor
what a man facing old courts is to do with a new vocabulary” (Llewellyn 1934:
205n— ). The student lacks the techniques needed to frame arguments, to diagnose
audiences, to distinguish vocabularies and topics, or viscerally to affect his hearers.
In short, the pretense of reason, the inculcation of a logic that would at best work
only in the con¬nes of contemplative philosophical speculation, incapacitates the
law student. They need rhetoric. They need life experience. They need the tools
of persuasion, the animus of argument, the feel of events. Without these, lacking
skills, the student will have little access to the reality of law, the playing of the game,
the winners and losers in the visceral struggles that litter the arena of legality and
its enforcement.
Moving then to our modernity, the contemporary state of philosophy in Amer-
ican law, the two propositions implicit in PAL can be formulated prospectively.
They have signi¬cant current resonance and ample unful¬lled promise. First, the
emotive and, technically, ¬gurative style of Llewellyn™s argument. The implicit the-
sis is a proposal and exempli¬cation of the importance of rhetoric as the proper
study of law. Philosophy and philosophers seldom if ever engage with law under-
stood as professional practice and the event of judgment. Thus the importance
of rhetoric as the discipline that bridges the worlds of theory and application,
education, and practice. The implicit argument is humanistic in that rhetoric was
the humanist™s primary discipline and the curricula manuals on “speaking justly
in civil matters” were the ¬rst legal textbooks (Quintilian 2002: bk. 2, chap. 15).
To this can be added two correlative points. Rhetoric precisely studies affect in
argument, oratorical effects, the performative dimensions of advocacy, persuasion
all told. It is the study of motive, presentation, and delivery “ ethos, pathos, logos “
and as such recognizes the emotive dimension of all argument and speci¬cally that
of the discourses used by practitioners of the ars bablativa, or art of chattering.
How are clients to be communicated with, professional colleagues convinced or
manipulated, juries persuaded, and judges prevailed upon without the inventions
of rhetoric and its arts of elocution? The answer according to Llewellyn is “poorly,”
indeed not well at all. Rhetoric is crucial and yet everywhere Llewellyn sees mere
casuistry, declamation, or simple corruption of speech.
The argument in favor of rhetoric, in support of taking dicta seriously, is best
understood as humanistic in a second sense as well. As against philosophy, which
endeavors to escape the world of action in favor of the purity of legal formulae,
rhetoric is a discipline gauged to engagement, open to circumstance and event.
The subsidiary, yet crucial, implicit feature of Llewellyn™s observations in PAL is
a shift away from philosophy, the technical, hermetic, and dry discipline derived
from Aristotle™s logic, to a much broader and more open conception of theory.
Llewellyn refers to life philosophy with which we would now talk of theory and
theoretical perspectives upon law. Rhetoric is theory in the sense both of framing
220 Peter Goodrich

the practice of law and in that of opening the educational transmission of legality
to the wealth of humanism, the disciplines, the plethora of knowledges. Rhetoric
is an organizational principle, a technique for ¬nding (inventio), ordering (nar-
ratio), and delivering (elocutio) persuasive arguments, effective speeches. Lawyers
as rhetors use the commonplaces or topics of their discipline to understand prac-
tice, to formulate arguments, to persuade and move to action. The topics, and the
briefest glance at early legal treatises can substantiate this and more, include philol-
ogy, history, geography, ethics, morals, philosophy, and religion. Now we would
likely add the psychological disciplines, economics, linguistics, and ¬lm studies.
Be that as it may, theory as implicitly proposed by Llewellyn undoes the closure of
law and opens the ground for the interdisciplinary studies that now form the bulk
of academic law, the substance of theory, the stuff of scholarship.
The second feature of the shift to theory lies in a leveling of the discipline
of law. Theory is not a professional specialization; it has no proprietary stakes,
and it confers little by way of status. It belongs to no single discipline and has
only a marginal purchase within the institution. It is everywhere and nowhere.
In the realist™s usage, we are all theorists because theory is organic to intellectual
activity; it is the self-re¬‚ection of a discipline, the self-consciousness of practice,
critical doubt as to its ends. The legal theorist as organic intellectual is in this sense
engaged in linking the topics of law to the disciplines that can aid in elaborating
them. He or she is committed to discourse, dialogue, conversation with the usages
and communities from which law stems and upon which it is applied. Theory
is here ¬rst hermeneutic and second rhetorical; it seeks to understand and then
relay. It is organic in the sense that no one is excluded; it is, in Llewellyn™s nice
coinage, life-in-action; it is the discourse of doing, and in sum it is law as a way
of life.
The focus on rhetoric and with it on passion and action as the dimensions of
discourse most relevant to theory suggests not only engagement but also realism as
to how law is made. Fuller suggested that Llewellyn was unusually concerned with
the predictive character of scholarship. The millennium, you will recollect, not
only lays down the tools of doctrinal torture but will also have made prediction of
judicial action much easier. Certainty will replace discord among the precedents.
The realists wished to predict, to prophesy outcomes, and their avenue to this
was scholarly scrutiny of the context and process of judicial decision making, as
well as recourse to empirical science so as effectively to study the patterns of law
in action. Law and society, which offers empirical studies of law application and
enforcement, is one derivative of Llewellyn™s proposal, while law and economics
adds a specialist patina to prediction while generally aligning itself with school law
or speculative cerebration rarely touching upon the same level of discourse as that
of lawyers in practice (Goodrich 2007).
The more obvious point is that contemporary legal theory has followed in the
open path that Llewellyn implicitly proposed. It has slowly added a series of con-
junctives. Law and the humanities, and the social sciences, and cultural studies
have slowly and tenuously made their way into the margins of the discipline. The
plethora of conjunctions, of ands, ran loosely from Marxist sociology of law to
Dicta 221

critical legal studies to feminism and critical race theory on the left, and from ana-
lytic philosophy of language to law and economics on the right. In between, in the
liberal humanist space of scholarly solace or academic confrontation the conjunc-
tions range from law and literature to deconstruction, hermeneutics, semiotics,
psychoanalysis, ¬lm, and aesthetics linked or juxtaposed to law. In admittedly
varying forms, yet in the oldest of humanist traditions, the contemporary human-
istic jurist endeavors to understand both the m´ tier of legal intervention and the
e
practices upon which it has an impact. Such is the reason for scholarship that
extends beyond the strict guild talk or jargon of law and equally explains why
philosophy narrowly de¬ned did not appeal to Llewellyn any more than it does to
contemporary legal theorists.
Reading between the lines, through the ¬gures or dicta of his text, I have sug-
gested that we return to Llewellyn, even to PAL, because contemporary legal theory
stands more or less in the space that he opened up. What Llewellyn presents in
his argument against philosophy and in favor of theory, in his implicit notion
of the organic legal intellectual, in his call for rhetoric, for action, is prescient of
where theory stands now. Put it like this, for simplicity and convenience. Law and
economics has solved the quest for prediction except that what is predicted seldom
crosses paths with what happens. Rational actors in a perfect market infrequently
encounter law in action and even if they do it will almost always be ex post facto,
after the event. We are left with a still-nascent humanism, a plethora of disciplines
contributing to law. Law and economics are among these, but over the longer term
this will be in a relatively minor key, as relates to moments of actual intervention
in extant markets. For the rest of the curriculum, for the syllabus of practice, the
project remains that which Llewellyn spelled out. How can we teach a rhetoric of
law, a mode of scholarly conversation that bridges the gap between academy and
court, between school law and law of¬ce, between declamation and the oratory of
negotiation and adversarial advocacy?
Two ¬nal observations, last words, envoi. Contemporary theory stands at a
crossroads. Circa 1934 and circa 2008, legal theory has lost its law. Stick with
today, and it is all theory, all economics or aesthetics, limited to theorists and their
names. Llewellyn suggested recourse to rhetoric, to the study of modes of dialog,
because democratic conversation “ communis opinio iuris as it used to be called,
“custome and conversation . . . usuall and ordinarie speech” (Doderidge 1634), the
animadversions that pass among the various sects of lawyers “ is the starting place
of common law. How do we study that, the formal and more often informal,
the licit and illicit, the tacit and implicit, the impassioned and undisclosed? The
answer is equally implicit. Fuller in the epigraph to this essay criticizes Llewellyn
for distinguishing different types of dicta. I will end by suggesting that Llewellyn
made the distinction for good reason. He was intrigued by dicta; he saw dicta
as the source of legal scholarship, as the primary subject of juristic analysis. A
legal dictum is never simply a dictum. As rhetoric lengthily teaches, it is an ipse
dixit, an authoritative statement, a pronouncement, veridical speech, a ¬gure, an
illocutionary act, speech by position, an image, and more. The dicta change over
time. Rationes become dicta, and dicta become regulae. Formulate it as a realist
222 Peter Goodrich

aphorism: real lawyers don™t rest with rationes. It is all dicta in differing degrees.
And perhaps for that reason the next phase of theory will have a novel name:
the “dictists,” meaning jurists, scholars, humanists open to the plenitude of legal
speech.

WORKS CITED

Doderidge, Sir John, The English Lawyer. London: Assignes of I. More, 1631. Reprint, Clark,
NJ: Lawbook Exchange, 2005.
Fuller, L. L., “Book Reviews.” U. Pa. L. Rev. 82.5 (1934a): 551“3 (reviewing Karl Llewellyn,
Pr¨ judizienrecht und Rechtsprechung in Amerika. Leipzig: Verlag von Theodor Weicher,
a
1933).
. “American Legal Realism.” U. Pa. L. Rev. 82.5 (1934b): 429“62.
Goodrich, Peter. “The New Casuistry.” Critical Inquiry 33.4 (2007): 673“709.
Llewellyn, Karl. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
Nowell, Laurence. Vocabularium Saxonicum. Ed. Albert Mackwardt. Ann Arbor: Univ. of
Michigan Press, 1952.
Quintilian, The Orator™s Education (Institutio oratoria). Ed. and Trans. Donald A. Russell.
Cambridge, MA: Harvard Univ. Press, 2002.
Selden, John, Titles of Honor, 3d ed. London: E. Tyler and R. Holt, 1672. Reprint, Clark, NJ:
Lawbook Exchange, 2006.
26 Recent and Future Concepts of Law: From
Conceptual Analysis to a Practice Theory of Law
dennis patterson


General jurisprudence is the study of the most general features of law. The tradition
of analytic jurisprudence “ one that spans from Hobbes to Coleman “ has exhibited
a sustained focus on identifying the constitutive features of law. For some time,
this question has been framed as the search for the essential or necessary features
of the concept of law. But a look at the tradition reveals that this is only one of a
number of ways of looking at law from a similar vantage point. That vantage point
or perspective focuses on the structure of law. For a variety of reasons, this focus
is changing and a new question is emerging.
This essay is written at a time when the ¬eld of analytic jurisprudence is in
a state of ¬‚ux. For the past several decades, debate has centered on evaluating
and responding to Ronald Dworkin™s critiques of positivism. While there are (and
no doubt will continue to be) philosophers with an interest in these questions,
discussion in the ¬eld is moving to other topics. One of these topics is the focus of
this essay.
Stated in general terms, my interest lies in explicating the idea of law as a certain
sort of practice. The idea of law as a practice is intuitively obvious. Law is an
iterative enterprise in which practitioners make claims over time in forms that
repeat themselves, albeit in sometimes unfamiliar ways. A feature of law™s iterative
character is that the practice is conducted in concert with others. In a sense,
practitioners of law are together in the enterprise. What does it mean to say that
law is something we do together?
John Austin™s view of the nature of law dominated jurisprudential thinking
from the nineteenth to well into the twentieth century. Famously, Austin regarded
a law as an order backed by threat of sanction for noncompliance. One important,
additional factor was that the threat issued from a sovereign. Taken together, these
elements became the so-called command theory of law.
The view met its end in a work that is still regarded as the most important work
of legal theory in the Anglo-American tradition, H. L. A. Hart™s The Concept of
Law (1994). Hart argued that Austin™s account of the nature of law fails because
of Austin™s failure to successfully marry threats and sovereignty. That is, Hart
exposed the weakness in Austin™s picture of law when he asked the question of
whether there was any substantive difference between the order of a gunman and
that of a sovereign. Seeing none, Hart concluded that Austin™s account of the nature
| 223 |
224 Dennis Patterson

of law failed to tell us what it was about a legal system that made it law and not a
normative system of another sort. Having demolished Austin™s picture of law, Hart
had to replace it with an alternative.
Before describing Hart™s accomplishment in Concept, it is necessary to com-
ment on the nature of his project. Hart was deeply attracted to the professional
philosophy of his day, especially the approach to philosophy exhibited in the work
of J. L. Austin (Lacey 2004: 112“51). While Hart had an interest in the work of
other philosophers, especially Wittgenstein, Hart was his own man philosophically.
Finally, Hart self-described Concept as, among other things, a work in “descriptive
sociology” (Hart 1994: v). With these disparate elements in view, what was Hart™s
project?
One way to answer this question is to ask whether Hart was doing conceptual
analysis. In the late 1950s, it was quite fashionable philosophically to conceive
of philosophy as an armchair exercise devoted to the search for the necessary and
suf¬cient conditions for application of a concept. Thus, when one did philosophy of
law with a view to conceptual analysis, one asked after the necessary and suf¬cient
conditions for the concept of law. Was this what Hart had in mind when he
wrote Concept? There can be little doubt that this question will likely never receive
a de¬nitive answer, for there exists evidence for more than one answer to the
question. Thus, instead of trying to characterize what Hart did, I will describe his
project and the contours of the position he advanced.
Law, Hart argued, is a matter of rules; rules of various kinds, to be sure. But
the nerve of law was rules. So-called “modern” legal systems were composed of
primary and secondary rules. The regime of secondary rules was of vital impor-
tance, because it was in the realm of secondary rules that one found the rules
for introducing, amending, and repealing primary rules (e.g., the law of torts and
criminal law). Most important, the so-called master secondary rule “ the rule of
recognition “ was the means by which primary rules were identi¬ed as rules of
law. The rule of recognition, Hart (1994: 97) argued, provided both citizen and
legal of¬cial alike with “authoritative criteria for identifying primary rules of obli-
gation.” Hart was quick to point out that in modern legal systems, the rule of
recognition might be quite complex: in short, there might well be multiple sources
of law. Owing to its complexity, the rule of recognition of virtually any modern
legal system is likely to be so complex that it warrants characterization as a practice.
Further, Hart indicated quite clearly that the rule of recognition was ultimate in
the chain of validity: the rule was, itself, neither valid nor invalid. Rather, it was
simply “accepted” (Hart 1994: 105“6).
So far, I have described only one of the two principal parts of Concept. After
describing the core features of a municipal legal system, Hart then turned his
attention to adjudication. The seventh chapter of Concept introduces themes and
questions that remain central to the discussion of Hart™s jurisprudence. In terms we
would recognize today, Hart begins with questions of rule following. While Hart
treats problems of rule following from the point of view of both precedent and
legislation, he takes an approach that we would instantly recognize as informed by
Wittgenstein™s problem of rule following discussed in Philosophical Investigations.
Famously, Hart introduces the concept of discretion as the nerve of his account
of interpretation. Although Hart (1994: 132) has some harsh things to say about
Recent and Future Concepts of Law 225

rule skepticism, he concedes that “a large and important ¬eld is left open for the
exercise of discretion by the courts and other of¬cials.” Of course, the role of dis-
cretion in Hart™s position became a central focus of debate. In Concept, Hart limits
his discussion of discretion to two aspects: policy implications and the particu-
lars of individual cases. From the vantage point of the present, Hart™s discussion
of discretion is simple and unsophisticated. In fact, Hart™s entire discussion of
adjudication is of largely historical interest.
Let us return to the question asked earlier; that is, how to characterize Hart™s
project in Concept? In describing the contours of a municipal legal system, Hart
clearly saw himself as doing abstract work. True, he did say that Concept might pos-
sibly be described as a work in “descriptive sociology” (Hart 1994: vii). Whatever
one makes of this comment, it is clear that Hart™s primary concern was with what
he termed analysis. Hart came to jurisprudence with only the command theory
in view. There was something deeply wrong with this view, and Hart spends a
fair amount of time in Concept getting clear about the shortcomings of the com-
mand theory and what a proper view of the essential features of law would look
like.

RAZ, AUTHORITY, AND CONCEPTUAL ANALYSIS
Contemporary legal positivists divide themselves into two camps. The division
is driven by differing conceptions of the relationship between law and moral
standards. So-called inclusive positivists maintain that legal systems may be worthy
of the name legal even though they explicitly incorporate moral standards into law.
By contrast, so-called exclusive positivists maintain that no norm can be legal
in nature if it incorporates moral notions into the criteria of legal validity. The
debate between these two positivist camps has come down a central claim about
the nature of law. The burden of proof would seem to lie with the hard positivists,
for it is they who are making the strongest claim about the concept of law. The
claim is one that sounds in necessity; that is, for a norm to be legal, it must possess
certain essential features. The most compelling argument for the hard positivist
view comes from Joseph Raz, speci¬cally his account of law™s authority.
Raz™s account of authority is an essential feature of his view of the nature of law.
He maintains that the law necessarily claims to be a genuine and not merely de
facto authority. And for law to ful¬ll the mediating role that it claims for itself, on
Raz™s view, the law must issue dictates that can be readily understood and acted
upon. More speci¬cally, people need to be able to grasp legal norms (i.e., identify
those norms as valid) independently of their identi¬cation and consideration of
the (dependent) reasons for those norms. It is for this reason that Raz™s position
can be characterized as exclusive legal positivism.
Exclusive legal positivists insist that the content of law must come from social
sources alone. Raz (1994: 211) articulates the sources thesis as follows: “All law is
source based. A law is source-based if its existence and content can be identi¬ed
by reference to social facts alone, without resort to any evaluative argument.”
Although some read him as making a moral argument (Perry 2001), I think it
more accurate to read Raz as making a conceptual or metaphysical claim about
the nature of law. In this regard, Raz (2005, 2006) himself has been somewhat
226 Dennis Patterson

equivocal on the matter, sometimes speaking of “the” concept of authority, “our”
concept of authority, or more recently, “concept(s) of authority.”
The problem with Raz™s position is that he makes no arguments directly in
support of his claims for necessity. This is no small omission, for the success of
Raz™s account of law™s authority depends upon the strength of his claim that the
concept of law is special in that its meaning is not (solely) a function of linguistic
usage and, further, that the content of the concept is (at least in part) dictated by
something other than conventions for the use of the word.
I believe that Raz needs to answer the question of the nature of law with an
account of concepts. To answer the question of the nature of law, we need to know
what sort of concept law is. Once we have identi¬ed what kind of concept law is,
we can move toward answering what sort of conceptual analysis is necessary for
a concept like law. In short, an account of concepts is a necessary preliminary to
answering the question, What is the nature of law?
The conventional metaphysical wisdom is that concepts divide up into at least
two categories: natural kind concepts and artifactual kinds. Natural kind concepts
are those whose essence is dictated by a microstructural element, such as atomic
formula or DNA. Artifactual kinds are the product of human invention. These
social constructs are the stuff of John Searle™s (1995: 31“52) “Institutional Facts”:
their existence depends upon our attitudes or intentions. Where does Raz™s account
of the nature of law fall into this divide? It is not at all clear.
On the one hand, Raz (2005: 328), says this about the nature of law: “A theory
consists of necessary truths, for only necessary truths about the law reveal the nature
of law.” But Raz (2005: 331) also maintains that “[i]n large measure what we study
when we study the nature of law is the nature of our own self-understanding.”
It is dif¬cult to see how necessary truths can arise out of the self-understanding
of participants in a practice. Raz seems to want an account of the nature of law
that identi¬es necessary truths at the same time it identi¬es something seemingly
contingent about law (i.e., our self-understanding of it). Putting together necessity
and contingency seems to me to be the next step in the development of exclusive
legal positivism. Until Raz accomplishes this task, his claims for law™s authority are
unconvincing.

DWORKINIAN CONSTRUCTIVISM
Dworkin™s jurisprudence is both a criticism of and an alternative to all forms of
positivism. It is conventional wisdom that positivists believe that the content of law
can be identi¬ed by a conventional practice Hart dubbed “the rule of recognition.”
For positivists, the content of law “ or the answer to the question, What is the law

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