LINEBURG


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Copyright 1934, by the University of Pennsylvania.

Volume 82 January, 1934 No. 3
ON PHILOSOPHY IN AMERICAN LAW—
K. N. Llewellyn†
“The inquiry as to a theory” remarks Pareto, “runs in terms of what it
did for the man who made it”and of what it did for the men who
accepted it.” There is rarely a lack of the theories in the world, or even
in the air”or of philosophies. Nor, for that matter, when the philosophies
die do the books die with them which contain them. But life-in-action
a theory can gain only when it serves men™s needs. Life-in-action; I am
— As Pound has pointed out, the natural law thinking in which Mans¬eld was at home, and
which was choked out in England by Eldon™s time at least, continued to ¬‚ourish here. It was
Morris Cohen, I think, who made me see its recrudescence in the constitutional law cases in
and after the ™90s. Pound gives good reason for the ¬rst phenomenon; but I have never felt
satis¬ed with his mere listing and description of our apparently inconsistent jurisprudential
trends in the latter 19th century. It is not enough to know what they were, and whence they
came. We must see why men adopted them, and above all, how they all ¬tted into the single
picture. Nor is this all. Philosophers™ writings and law-men™s doings meet rarely on the same
level of discourse, and part of the game is to ¬nd where they do, where they do not, and”if
you can”the why of either. Finally, wherever writings are contrasted with doings, there is the
question of the relative rˆ le of the great man and his times.
o
I grow impatient for some one to work these matters out. It is due our students that cases
with dates ranging from 1780 to 1930 should be given some chart of the sweep, on which they
can be plotted. How else are the individual cases to be grasped? Indeed there are a number
of ¬nished jobs which a second year law student is entitled to have before him. Some one
should make clear to him the difference in “feel” and tendency between, say the approach in
most phases of property and a few phases of commercial law from that in the ¬‚exible body of
commercial law at large, the difference between the latter and the mutually diverse ¬‚exibilities
of Equity and of Torts; some one should set for him the “feel” of Procedure against that of
Public Law. I still feel my wattles 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. “One system
of precedent” we may have, but it works in forty different ways. Some day, some one will help the
second year student orient himself. Nor does any one bother to present to him the difference
between logic and persuasion, nor what a man facing old courts is to do with a new vocabulary;
in a word, the game, in framing an argument, of diagnosing the peculiar presuppositions of
the hearers. I think the second year student is entitled to feel himself aggrieved. Meanwhile,
while we wait upon the treading of the Angel, there is rushing in that calls for doing. Here is a
start.
† B. A., 1915, LL. B., 1918, J. D., 1920, Yale; Betts Professor of Jurisprudence, Columbia

University School of Law; Commissioner of Uniform State Laws from New York; author of
numerous legal treatises and articles.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
206

less concerned here with currency-in-words. Men may scorn philosophies,
as philosophers are fond of making clear, without escaping the necessity of
living in terms of some one of them”or of some inconsistent hodge-podge
of a dozen. Thus what is here before the telescope is the changing array
not of verbalized philosophies, but of philosophies-in-action as the history
of law in these United States has gone its way. What those philosophies
were, what needs they served”and whose. I am not so much concerned, I
repeat, with the philosophers themselves, with whom indeed my acquain-
tance is but scanty. I am concerned with philosophy-in-action, with implicit
philosophy, with those premises, albeit inarticulate and in fact unthought,
which yet make coherence out of a multiplicity of single ways of doing.
Where explicit writers happen to be mentioned, it is as persons giving
fortunate expression to the living currents of their time. With an excep-
tion. The two most recent lines of premise mentioned (the sociological
and the realistic) are found rather in writings than in life. I view them as
products of their time, as attempts to adjust action to felt needs, as were
the others. I view them also as probable heralds of the future. But of the
ways of the law-guild at large, as lived, they are as yet a most inadequate
expression.
It will thus be clear that I am viewing not the invention, but the choice
of a philosophy”or better, the growing into ways of doing which comport
with some one philosophy and not with another. And it will be clear that
I view such ¬tting into a philosophy as a process dependent largely on the
felt needs of the persons concerned. And it need hardly be added that I
view conscious choice of a philosophy as rare, and the mere growing into
one as the order of the day. But I trust to make it persuasive as well that
once a philosophy has been established in the habits and attitudes of any
person, it has effects; a fortiori, if such establishment comes to prevail among
a group; and again a fortiori as the group in question grows larger or more
solid. Finally, I shall urge that the inventor of a new philosophy, or of a
creative adaptation of some ancient one to current needs, may with luck
affect or de¬‚ect the current of his times. There is a certain”or better, an
uncertain”leeway within which the individual contributes to the shaping
of society. And there is a speeding or slowing (or turning) of the march
of events, according as the needed intellectual formulations are or are not
invented (or rediscovered) or are well or badly, or late or early, achieved.
A lone man, by his formulations, may indeed make felt a need of which no
one had been conscious before.
The United States began as such with natural law the atmosphere about
them. “We hold these truths to be self-evident,” wrote Jefferson. And
signers signed. The separation of powers, whether derived from Mon-
tesquieu or Reason, was surely written into the Document as an expres-
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ON PHILOSOPHY IN AMERICAN LAW 207

sion of the “essential” nature of government. The Bill of Rights, itself origi-
nally omitted because self-evident, incorporates in intent the “natural” her-
itage of the individual citizen.
How far this, as a philosophy, affected in that day our governmental law,
is beyond my power to say. But as applied to private law, the rˆ le of the
o
philosophy of natural law is clear. Precedents were few. Judges had nei-
ther training nor experience at their back. England was hated. Lawyers
were only by accident accomplished, nor was their standing high. And yet,
there were disputes. And courts. And lawyers. Meanwhile, with a rapidity
no man (save one) had courage to pre¬gure, the country rushed west-
ward and spawned progeny. A call for law, for changing law, for law ¬t-
ted to conditions in good part theretofore unknown, was met by a lack
of materials to answer the call. There was a single body of law available
in English: the common law tradition. Yet that tradition (though pressed,
increasingly as time went on, by advocates) was distrusted by the populace.
Consider Tory-expulsion, the French Revolution, and the War of 1812.
And partly the tradition was ill-adapted to our needs. If ever situation cried
out for one particular philosophy, this did. Natural law! The law which
urges Reason as the law. The judge, if his experience reaches, has but to
think, to see, and to decree as seen. The English cases”merely, in tacit
theory, as suggestions”proceed to suggest; and by suggesting, to relieve;
and as reliefs, to become received. For one can always vary from them,
when the case requires. Story and Kent, in search of variant suggestion,
can range among the Continental writers. Until the growing reception
of English practice as well (along with English precedents) threatens to
wall in variant growth, instinct and theory of right reason continue to
correct reception of the English law.
Thus up to the ™50s. As the slavery controversy draws off attention,
I lose the trail of growth in private law. Indeed, as I look back over my
own ¬elds of work, it is a little startling to see the incidence of the cre-
ative precedents which I happen to have met halt in the late ™40s, disappear
during the ™50s, and set in again as the ™70s approach. I speak of course from
casual observation, not from careful inquiry. But, in conjunction with the
towering of the slavery issue, the doubt impends whether private law, along
with other lines of interest, may not have suffered stagnation as the powers
of a nation were channeled toward one crucial con¬‚ict.
But whatever the doubt before the Civil War, there is none after. Grant,
and the nadir of political corruption. In New York, Tweed. In the South,
Reconstruction. Union Paci¬c Railway”why go on? The era of the busi-
ness buccaneer. Natural resources. A continent to be exploited. Fortune
ahead, ¬st in your neighbor™s belly, foot in his face, immigrants, and
consumers, and the earth”and law”to be exploited. In this period, as
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
208

I see it, the Business Man took hold of the ideology of America. While
business began to center on industrialization, with corporate development
in an ascending scale as the inevitable consequence. One thing must be
remembered. “Hold of the ideology of America,” was what I said. “Captain
of Industry”, the slogan ran. National welfare was identi¬ed with laissez-
faire”and with some reason. Not only were we growing, not only was”for
most”the standard of living rising, but the business buccaneers (as con-
trasted, I suspect, with the political or the ¬nancial) were giving the country
more than value received. The elder J. P. Morgan perhaps (and at times)
excepted, Rockefellers, Harrimans and Hills, as doers, stood out in startling
contrast to such stockjobbers as a Gould.
It is against this background that we approach the philosophy that under-
lay the private law between 1870 and, say, 1900. Little thereof was explicit.
It was no day for too explicit philosophizing. Men™s minds were on doing,
which meant exploitation. Yet the trend is obvious. “Natural law” had built
up, in the course of the decades, its precedents, and borrowing from Eng-
land had acclimatized the precedent system in two or three of its multiform
variants. And business captains needed a stable footing in the law. Stable:
that means, on the one hand, reckonable. So, let us say, with reference to
the law of long-term contracts or of property. Stable: that means, on the
other hand, suf¬ciently straitjacketed in out-moded moulds not to catch up
too fast with novel predatory practices. Footing to foot on, plus room to
move in: these were the needs the dominant philosophy of life required.
The dominant philosophy of law proceeded to supply the needs, by way of
case law. By way of decisions of judges, based on decisions of the judges
who had gone before them. Legislation? Buy it off! (Or, as with the Union
Paci¬c, buy it on.) The nadir, I believe I mentioned, of political morality
inside these boundaries.
And what philosophy may hope for acceptance and utilization, in such a
situation? Positivism. Let us forget “right reason”; let us forget the bastard
something known as morality; let us acknowledge merely the obvious fact, in
law, that law as ±s, is law. Justice may be an ideal; in actuality it is an accident.
A legal system exists to preserve the law as is, and any other thinking is a
somewhat absurd idealistic tendency, divorced from facts of life.
It had happened meanwhile (thanks to the prior reception of English
practice) that this philosophy (explicit or implicit) was applied to a body of
case law. It had happened, further, that the body of American case law itself
had already been developed, with a philosophical presupposition of natural
law as nurse and guide. It had happened ¬nally (as indeed was inevitable)
that particular cases ran discordant ways. Whence arose, ineluctably, the
problem of dealing with discordant precedents. For precedents are positive,
each one of them.
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ON PHILOSOPHY IN AMERICAN LAW 209

The result was a confused but (to the dominant interested parties)
wholly satisfactory “resolution” of incompatible decisions. To wit: decisions
which we like are “sound”, and therefore precedent. But decisions which we
do not like are “unsound”, and therefore to be disregarded. The following
of consistent precedents is a positivistic choice. The choice among inconsis-
tent precedents (say, “on principle”) was, on the other hand, an echo of the
already decadent philosophy of immutable “natural law”. Only in later years
has it tended to become mechanized in terms of “majority view”, or that of
Corpus Juris; or been frankly based on policy.
To repeat, the system was one of precedent. Into a system of prece-
dent the urges from historical jurisprudence ¬t with no shock at all to
the prevailing positivism. The study of history merely “reveals” the prevail-
ing rule, or helps the natural law to make a choice among prevailing rules
which happen to con¬‚ict. Indeed the going back helps positivism mightily
to divorce law from the life around us.
The urge was thus for clarity and certainty, for a ¬rm foundation.
The urge was for a solid something on which to build, of course, with
the aforesaid exception for extensions made necessary by business needs.
These extensions were provided by the selected bar. Selected? Selected by
fees. Throughout the period under consideration, the best brains of the bar
were in the service of the business captains, as the results attest. There was
no lack of growth of corporation law. The labor injunction was invented.
There was, as events proceeded, the turning of the trust to the uses which
have connected the word with oil and beef. The legal structure of high
¬nanceering found willing carpenters as well as able architects.
Meantime the revolt of labor breaks into the public eye in ™73, in the
™80s, and again and crucially in the Pullman strike of ™93. The farmers,
from the resumption of specie payments in 1879, suffer the pinch, and
push for “easy money”. The small business man in the late ™8os, and loudly
in the ™90s, cries out against the Trusts. Popular movements capture leg-
islatures. No longer can all legislation be bought off. In the skilled hands
of corporation counsel, the front of battle shifts. A new utility is discov-
ered for “due process”, and “equal protection of the laws”. For this there
were no precedents. The prevailing positivism, explicit or implicit, gave no
footing. Again the approach was along the lines of natural law. Right rea-
son is the guide. The inde¬nite void marked by the phrasing of the two
amendments was ¬lled by the judges™ notions of the way things should
be”¬lled to the entire satisfaction of those persons whose ideology and
action indicated the proper way to ¬ll it. Observe the ways of implicit phi-
losophy. Natural law in the constitutional ¬eld rides hand in hand with
positivism on the private side. Who cares for inconsistency? Both serve
the need”the need of those persons whose need, as things were organized,
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
210

was “the need”. Observe also how an appeal to natural law which in the
¬rst half-century was a vital source of creation could at the end become in
very truth the judicial “enactment of Mr. Herbert Spencer™s social statics”.
At this point it is time to look into the philosophy of one individual
whose phrasings have had power. As one follows the growth of Holmes™
thinking from his early writings in the American Law Review, through The
Common Law, into his speeches, and culminating with The Path of the Law
in 1896, one ¬nds increasing precision in the development of a cynical
realism. It might be summed up as “Look and see precisely what is there;
and reckon with that, and nothing else”. Or, as my friend Patterson prefers
to phrase it, the judge™s attitude becomes: “You have not shown enough
to make me move”. Even the splendid clarity of the contracts opinions
cannot hide the essential conservatism of the point of view”as applied
to private underlying law. The misrepresentation cases show no desire to
expand. The torts cases are choked by ancient history. Even the celebrated
dissent in Vegelahn v. Guntner 1 rests on unwillingness to create a prece-
dent, where the other judges were prepared to do so in the interest of
a waning point of view. The very early essay on grain elevators is a notable
exception. It is striking as one works through Holmes™ writings before the
appointment to the Supreme Court, to ¬nd an almost total absence of dis-
cussion on public law. I can recall only one passing reference in 1896.
Mark now how the philosophy thus developed, and without change in
its form, takes on a total difference in effect as the man moves into another
sphere of action. “Look and see precisely what is there””and as applied
to constitutional limitations on legislation (as distinguished from the piled
up precedents of common law) the answer is only a non-existent brooding
omnipresence in the skies. Or, from the other angle: “You have not shown
enough to make me move””this time, not in favor of the plaintiff, but to
strike down a statute. And what had been in effect a philosophy of con-
servatism becomes, without internal change, the “open sesame” of liberal
reform. Holmes does not take the initiative. The legislature will do that.
Holmes strikes down the barriers others would by new creation set up before
the legislature. Natural law cannot maintain its substance to a cynical eye.
We see thus exempli¬ed the rˆ le of the single man in social change,
o
and the rˆ le of a philosophy once accepted, in the work of the single man.
o
As in all but exceptional instances, with a lag. It took twenty years to win
the Supreme Court to Holmes™ point of view, and when it had been done
there came a setback. While his philosophy in private law has waited close
to sixty years to ¬nd acceptance. The acclaim that greeted The Common Law,
here and abroad, was not for the analytical insight we prize today, but for
its history.
1
167 Mass. 92, 44 N. E. 1077 (1896).
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ON PHILOSOPHY IN AMERICAN LAW 211

With the turn of the century the emotional revolt of laborers, farmers,
and small business men had worked its way up into the thinking of the
intellectuals. How far this is a parallel phenomenon to Roosevelt™s pro-
gressivism, how far it was kindled from the political sphere, I have no
means of knowing. Certain it is that vital thinking of a peculiarly high
order appears in the ¬rst decade of the century. Dewey, James, Bentley,
Sumner, even Ross. And Veblen. And, on the legal side, Brandeis as early as
the ™90s, Wigmore, the path-breaking work of Pound, Hohfeld and Cook,
and in 1910 and 1911 Bingham as the forerunner of realism.
On the private law side Pound™s sociological jurisprudence represents
in essence a revolt against case law positivism, a re-introduction of ethics
into the law, and ethics with a vigorous social ¬‚avor. The critique of the law
is to proceed not from inside but from outside. Once again with a hangover
of natural law thinking. For to discover social values one turns to Reason
in the armchair (and, with a hangover of positivism, to the cases in the
books), and to such desultory experience as he may have had about the
matter. Still, on the private law side, Pound, not Holmes, is the prophet
of the new dispensation. On the public law side, much more Holmes than
Pound.
But it will be observed that, as indicated at the outset, we have now
shifted the arena of discussion. No longer are we dealing with the implicit
philosophy of the law-men at large. We have begun to speak of individual
writers whose work is far from mirroring the action of their legal contem-
poraries in the bulk. The lag in the case of Holmes has been mentioned.
The lag in the case of Pound is hardly smaller. Not until Cardozo under-
took the job of re-interpretation of the fundamental point of view (begin-
ning in 1925) may one regard sociological jurisprudence as even beginning
to win general acceptance among the body of the guild.
This calls for explanation. The needs of the times were there, and felt.
Sociological jurisprudence ought, it would seem, to have found an early
echo. I ¬nd a number of factors to which one might appeal, yet have no
great con¬dence in any of them being operative. The “law” under discus-
sion was the law of the schools, and the law of the schools had for some
decades been divorced from life. That may have helped to pen the tem-
pest within the legal teapot. More important is probably that impatience
called for legislative”or administrative”change, and so focussed attention
on the constitutional ¬eld. It will be found, e.g., that widespread realism in
public law antedates realism among private law scholars by a good two
decades. But most important of all I suspect to be the fact that lead-
ers in legal practice had fallen hopelessly behind the times. Dominated
by bourgeois, business, buccaneer ideology, serving and knowing only, as
specialized of¬ce counsel, the interests of the “Ins”, they had no ears for
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW
212

words that betokened change in an existing order. One still meets gen-
tlemen who still voice their profound conviction that such conservative
men as Holmes, or Brandeis, or Pound, are “dangerous”.
Meantime, the spear-point had advanced. In the immediate post-war
years a goodly body of thinkers, stimulated especially by Dewey, Boas, Wat-
son, and Veblen, had begun to apply Holmes™ way of seeing not only to
the law, but to sociological jurisprudence. To make the latter real required
more than armchair estimates. Pound and Frankfurter had indeed begun
the work in the Cleveland crime survey. A similar and more sustained
approach was required no less in private law. To apply the criterion of
judging law by its effects called for more exact knowledge both of what
law was and of what its effects might be. Indeed it called for more accu-
rate knowledge of the conditions of society. (Here it seems to me Brandeis
was in public law the major pioneer”at least in forcing facts before the
court.) Hence, “Realism”. The mixture of philosophic tendencies involved
in that way of work is interesting. From the positivists, the realists take
the insistence on concrete data, though they largely increase the scope of
data to be insisted on. From Holmes (and Watson) they take a cynicism of
vision, an insistence on treating words as mere tools in attempting to deal
with things more tangible. From sociological jurisprudence they accept
the criterion of criticism by way of social needs. From Dewey and James
they take an insistence on results as the single test of validity.
As yet their views are hopelessly unorthodox. The profession at large
still shows, at times, the in¬‚uence of the natural law of one hundred years
ago. More vitally its work is affected by the positivism that was at home in
1880. Beginnings of the in¬‚uence of sociological jurisprudence can be seen
in law-men™s actions. The realists ¬nd as yet little echo among judges. But
what makes them seem a wedge that is opening up the future behavior of
the guild is that their lines of thinking are so much closer than any others
to the actual behavior of the better bar, and that their judgments of policy
come backed by facts.




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2 Law in Life, Life in Law: Llewellyn™s Legal
Realism Revisited
jan m. broekman


When the philosophies die, the books do not die with them, he writes. He ardently
desires to live a full life, which for him is a life of action that is not hampered by
theories that do not serve anyone™s needs. Consequently, his life is not focused on
“verbalized philosophies” that can be found in law books or philosophy books but
rather on “philosophies-in-action as the history of law in these United States has
gone its way” (Llewellyn 1934: 206). What ideas are implied in Karl Llewellyn™s
approach, and do they remain relevant for us today?

TWO BIOGRAPHIES, AMONG OTHERS
Revitalizing a life as it is “ a realm of immediate experiences “ requires one to eschew
ossi¬ed concepts, prescribed linguistic patterns, and institutionally safeguarded
expressiveness. This guiding idea leads Llewellyn to use law and philosophy as
catchwords rather than as precise descriptions of this important contrast. Indeed,
the entire essay On Philosophy in American Law operates as a catchword. Perhaps
the central catchword lurking in this essay is life, and to explore the complex
dimensions of this catchword we can turn to two biographical notes on Llewellyn
that point toward a very different development.
In his well-known book, Fikentscher (1975: 285) explains

Llewellyn™s oeuvre becomes more understandable if one looks at his way in life.
Born 1893 in a German-English-Irish family of the Middle West, the parents had
educational problems with the young man, so that he was handed over to a stern
uncle in Eastern Prussia. Due to an administrative error in the beginning of the
First World War, he had to perform active military service in the German army.
He only came out of the army after an intervention of the American consul, and
returned to the United States. Llewellyn learned the English language anew, as it
were for the second time. That explains his incredible linguistic feeling and his
ability to perceive issues without prejudice and to understand them anew. His
essential contribution to Law stems from this “see-it-fresh” attitude.

This biography raises two questions among others: why is a fresh look at legal
problems so exceptional, and does it require such a multicultural life experience?

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