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12 Jan M. Broekman

Brian Leiter (2001: 8999) offers a different biographical story:

Karl Nicholson Llewellyn was born in Seattle, Washington on May 22, 1893,
though the family soon moved to Brooklyn, New York. At age 16, he went to
Germany to study for 2 years, before entering Yale College in 1911. When World
War I broke out, he was studying in Paris. Staunchly Germano-philic, he joined
up with the 78th Prussian Infantry, was wounded later in 1914, and subsequently
received the Iron Cross! Returning to Yale, he completed his undergraduate studies
and enrolled in Yale Law School. . . . He joined the Yale Faculty in 1922, moving
to Columbia Law School in 1925; Columbia was then fertile ground of the new
˜Legal Realism,™ a movement in which Llewellyn soon emerged as the major
¬gure. . . . From the 1940s until his death, he made his seminal contributions to
the Uniform Commercial Code.

From this biography we might conclude that the passions involved in the Ger-
manophile attitude exemplify how life can take priority over disciplined reason,
which would be independent of the factual question of whether his service was due
to administrative error or a personal decision. Georg Liebmann (2006) suggested
the same by vividly describing Llewellyn™s “sympathy with the German cause,”
an attitude that is differently understood in the European countries than in the
United States, just as the meaning of philosophy is differently understood.
Moving beyond the drama of Llewellyn™s military service in the Prussian army,
Llewellyn™s biography suggests a much more important in¬‚uence on his thinking
by an ideology arising from the German politics and philosophy of the time.
Llewellyn taught as a visiting law professor in Leipzig, Germany, during the 1928“9
term, and he was involved in the free law movement, the Freirechtsbewegung, which
proclaimed that law is not a matter for legal scholars offering doctrinal discourses
on social reality but is instead for the people. The movement was not a scienti¬c
and systemic philosophy but rather a loose association of thoughts and popular
opinions.
Similarly, the German historical school, the Historische Schule, of that same
period in¬‚uenced legal realism in a U.S. philosophical manner and was the pre-
decessor of sociological jurisprudence. The historical school wanted to restrict or
even abolish legal doctrine and formal judicial decision making in jurisprudence
in favor of the insight that all law is embedded in a national context, a Volksgeist
(“the spirit of the people”), that provided a historical context that lawyers should
use as a guide for their decision making. Because the written doctrinal law can
never fully grasp the moral, historical, attitudinal, or philosophical reality of the
people, the limits of law and jurisprudence become obvious: promulgation of legal
rules must always be checked against the reality of the people™s life. Continental
historians underlined how this view of law and lawyers already included a return
to natural law and ultimately favored Nazism by supporting a general conformism
among lawyers in the Third Reich.
Only a few years after Llewellyn became acquainted with the historical school,
the in¬‚uential German jurist Karl Larenz proclaimed that the Volk (“community,”
“people,” “ethnicity”) is the goal and origin of law. Law originates in the Volk and
must return to it, seeking to conform to the people™s life according to images of
Law in Life, Life in Law: Llewellyn™s Legal Realism Revisited 13

a genuine justice, which is produced by the people, as the ultimate expression of
their very nature (Larenz 1936: 26). Lawyers should, as a consequence, embrace
inductive reasoning and a strongly emotional approach to law rather than formalist
deductions, similar to one of the themes in Llewellyn™s struggle against Langdellian
orthodoxy in which Llewellyn argued for “sticking to the details of the case at hand.”
One must conclude that Llewellyn™s legal realism was not just his adoption of a
new intellectual perspective but rather a conviction that was deeply rooted in a
widely acclaimed twentieth-century ideology that formed an important part of
Llewellyn™s life.
The relevance of this ideology resurfaced a half century later when the German
Constitutional Court positioned German law against and above the European
Union™s Maastricht Treaty (1993) in the 1994 European Union case, Brunner v.
European Treaty. The court determined that “each of the peoples of individual States
is the starting point for a state power relating to that people” so that “if the Union
carries out sovereign tasks and exercises sovereign powers, it is ¬rst and foremost
the national peoples of the member-States who . . . have to provide the democratic
legitimacy.” The court thus referred to the philosophical climate of the historical
school that Llewellyn encountered when he visited the country. The convictions
that framed this case still reverberate in the political reality of the union, and they
build on the views articulated by Llewellyn. It was shocking to observe their revival
when several EU members during the June 2007 summit suggested reconsidering
the directness of the direct-effect doctrine in the union. Their considerations
mirror the problematic mixture of ethnic sentiments (Volksgeist) and economic
(self) interest that de¬ned the earlier period.
The German Constitutional Court decided that the union is not a Volk, that it
is not a demos in its ethnic sense of the word (a sense belonging to Llewellyn™s
biographical experiences), and that the EU therefore can provide only a supple-
mentary democratic regime (Brunner 1994: 57). This case and its many legal and
philosophical consequences engendered a vast literature on the substance and
form of law in the contemporary European context (Broekman 1999: 260“77).
The contemporary reemergence of older doctrines suggests that we should reread
Llewellyn and reconsider his motives by recognizing that his life in law shaped his
doctrine of law in life.

A GRAND STYLE
Llewellyn has often been praised for his prose style. That style may have been rooted
in his multicultural education, which forced him to learn his mother tongue twice,
but there are other motives at work that have legal-theoretical relevance. Liebmann
(2006: 149) characterizes Llewellyn and his texts as “a rare example of a law teacher-
poet; the chief architect of the most ambitious common-law code of recent times;
the possessor of one of the most exotic prose styles in all legal literature.” However,
as the architect of a code and designer of legal realism, Llewellyn uses his prose not to
philosophize but rather to promote a legal technology: “Realism is not a philosophy,
but a technology. That is why it is eternal” (Llewellyn 1960b: 510; Twining 1986:
175“84). This statement raises an eternal question that is not limited to the case of
14 Jan M. Broekman

Llewellyn: is it possible for a legal technology, untied from philosophical grounds,
to exist at all? In other words: can a legal discourse function while separated from
its philosophical or ideological foundation? Do Llewellyn™s writings seek a legal
order purer than Hans Kelsen™s positivism, and is his peculiar style of writing
inspired by a possible identity of legal facts and social facts?
Llewellyn™s desire for lawyers to see legal facts freshly, without philosophical
and ideological connotations, was captured by his effort to de¬ne the Grand Style,
which he opposes to the Formal Style. The Grand Style is founded on a possible
identity of legal and social facts (social facts not engendered by a social theory,
but facts of life), whereas the Formal Style resorts to formal language in order to
manage the semantic differences between the two types of fact, a difference that
remains contentious among legal scholars and judges. As a consequence, one must
conclude that the Grand Style is not in the ¬rst place a matter of text but rather
a matter of theory based on Llewellyn™s interpretation of the very nature of facts
that are before lawyers and judges. He insists that the “law-job” of mastering those
facts should not focus on philosophies. Llewellyn™s (1960b: 509“10) remark in The
Common Law Tradition, “I am referring to a way of thought and work, not to a
way of writing,” leads to the basic issue of how to understand facts and how to
investigate their nature “ a problem that realists and idealists have debated for
centuries.
The nature of legal facts, and the tension between law as formal and infor-
mal communication, has been a central topic in European legal theory during
the past forty years. Viehweg™s “Topical Jurisprudence,” Teubner and Luhmann™s
autopoiesis, Perelman on argumentation and rhetoric, and Habermas on consen-
sus and communicative dimensions of law “ all have deepened and exploited the
differences between the formal and informal character of law. They all focus, in
Llewellyn™s words, on “the way of on-going renovation of doctrine.” The Grand
Style as an encompassing legal theory underlines Holmes™ (1991: 1) famous con-
clusion in The Common Law: “The life of the law has not been logic: it has been
experience.” And, one has to notice, experience strives for the informal, even in
the case of law. But the puzzle remains: how is informality nested in the formal
discourse of law?
The legal order of a society cannot be wholly depicted in texts. Although written
documents ful¬ll a function in society, they cannot mirror all human relations
in all of their aspects, and certainly not the full function of law in social life. A
reliable representation of social life does not come from legal scholars and judges
who focus on con¬‚ict situations and the need for authoritarian decision making
in what Llewellyn (1941) termed “trouble cases.” Through this lens we would
obtain distorted images of law as a form of social action, distortions that are
not easy to detect. The weakness of sociological jurisprudence is that sociological
investigations can never provide a solid foundation for legal judgments. Llewellyn™s
investigations into the pro¬le of the legal institution and the outlines of what he
calls the “law-job” in My Philosophy of Law con¬rms this fact. He doesn™t argue
for realism as a theory of legal discourse that appropriately honors the informal,
and so the Grand Style is certainly not a Grand Theory! Why not? The answer is
that Llewellyn, especially in The Common Law, maintains an individualistic and
Law in Life, Life in Law: Llewellyn™s Legal Realism Revisited 15

person-directed analysis of law. Legal doctrine evolves “too close to the past,”
he suggests, “its mood is too craft-conscious, the need for the clean line is too
great, for the renovation to smell of revolution or, indeed, of campaigning reform”
(Llewellyn 1960b: 509). His analysis builds to an emphasis on the role of judges,
who must balance commands of authority with the demands of justice, must care
for the clarity of legal language, and must prudently ensure that the rules and
their applications are well understood and received, “even by mediocre men.”
This is neither merely a style nor deserving of the term theory. Perhaps it is best
characterized as an emotional appeal to compassion, to interpretative skill rather
than strict formality, and to a broad teleological conception of a legal rule, all
of which characterize contemporary judges in the United States. But the deep
gap between a system dedicated to resolving con¬‚icts and a system dedicated to
building solidarity remains. Can Llewellyn™s legal realism speak to the latter?
Llewellyn™s Grand Style is based on his understanding of the nature of legal facts.
This style is based on language and meaning “ even if Llewellyn wants to exclude
philosophical motives in order to obtain an undisturbed view of facts in law. We
have to recur to dimensions of expressiveness other than the opinions of judges or
rules of doctrine, because in these instances the formal character dominates. Such
a linguistic reorientation is a shift from a philosophy of law toward a philosophy
of language. Even if a legal discourse could exist without a philosophy of law
(Llewellyn™s doubtful premise), it certainly cannot exist without a philosophy of
language! This is the challenge for Llewellyn™s legal realism.

WHOSE REALISM, WHOSE LIFE?
Against the foregoing backdrop it is now possible to sketch Llewellyn™s view
on the position of philosophy in American law. I begin with three points of
orientation.
First, Llewellyn obviously is not adhering to the typical German understanding
and use of the concept of philosophy. There is no canon of texts that bothers
him, no problem of interpreting actual insights in the light of Greek ancestors
or of schools such as German idealism or even existentialism, and there is no
typical philosophical technique of thought formation (working from a logic and
metaphysics) in his legal scholarship. The philosophical heritage is very different
indeed from legal reasoning by precedent cases, and by avoiding this philosophical
heritage he hopes to open numerous possibilities to develop a fresh look.
Second, with his observation that “philosophers™ writings and law-men™s doings
meet rarely,” Llewellyn (1934: 205n— ) aims at another type of philosophy. Does
his understanding of philosophy represent American philosophy between the First
and Second World Wars? If not expressing a German philosophy, one would expect
that his work evidences an American approach. The answer is not so simple. To
say, “I do not look to philosophy” implies a truly philosophical standpoint and
recalls a philosophical approach to the subject adopted by the American statesmen
Benjamin Franklin and Thomas Jefferson. Their philosophy outside the academy
was more accepted in America than in Europe, with Ralph Waldo Emerson and
Charles Sanders Pierce as leading examples.
16 Jan M. Broekman

The de¬ning American philosophy of the twentieth century is pragmatism “ as
is globally recognized. Alexis de Tocqueville once wrote how American philosophy
`
seeks to “´ chapper a l™esprit de syst` me,” (escape the spirit of system) an attitude
e e
that emphasizes legal, social, and life practices because only what works out in
practice is valid. This attitudes suffuses Llewellyn™s (1941: x) description in My
Philosophy of Law: “the viewing of law as a going institution provides two vitally
serviceable points of orientation which freshen eyes . . . a going institution has jobs
to do, and its function is to get them done effectively and well. . . . And a going
institution has results in life.” It is simplistic as well as challenging to say that
American philosophy would, for Llewellyn, be characterized by means of three
expressions: (1) freshened eyes, (2) jobs done effectively and well, and (3) results
in life!
Third, the consequence of the foregoing is that there is an emphasis on judges;
their profession is to ful¬ll the role of the subject of the legal texts they create.
The “Grand Style” is a theory of law only to the extent that its style is the manner
of constructing utterances via the dominance of the ¬rst-person singular. In this
context, Llewellyn™s essay provides a bird™s-eye view of the activities of judges,
and that eye is often a very cynical one. His eccentric style of writing treats social
facts as if they were all alike: names, social issues, historic developments, political
stances, companies, geographies. And he represents everything in the ¬rst-person
mood: slavery as well as private law, the powers of a nation and a historic con¬‚ict,
a railway, a reconstruction ideal, natural resources, and signers and consumers.
Law™s style for him is the common law articulated by the judge, and its history
is the history of American society. No vague philosophical considerations should
form clouds that obscure the fact that realism is what law and its order need.
But what is the realism he proposes? The realism of the subject. And a major
subject “ in fact the only one in legal discourse “ is the common law judge!
Llewellyn™s style excels in not naming that name, in hiding the subject™s identity,
in telling the reader: “you know to whom I refer,” “you know what I mean,” “you
know . . . the Truth, the Document, the Signer, the con¬‚ict.” The bird™s-eye is his
eye; history unfolds through that eye, when the subject perceives the subject as
“other”! This perception mechanism becomes especially clear when judges are
involved in name giving: cases and names form one and the same identity before
Llewellyn™s legally skilled eye. Legal realism is based on this semantic process, which
creates identity through the jurisprudential conditio sine qua non of cases. Cases
are given names and they become signs through those given names. Once they
are named signs in the great common law, they sustain the life of law and citizens
under the rule of (the common) law.
The sequence of cases, names, and signs forms a major backbone of legal thought
formation for Llewellyn and continues to de¬ne contemporary thought in the
United States. Its existence and foundational position has far-reaching conse-
quences. Llewellyn attempts to understand these legal signs in a fresh light, but
the fresh light is dispersed only locally and there is limited motivation to spread
the light, as revealed by the title of his essay, which refers not only to American
law but also to American philosophy. As emphasized earlier, the latter is not a
philosophy in books and libraries, scholarly debates, and sophisticated essays; it is
Law in Life, Life in Law: Llewellyn™s Legal Realism Revisited 17

found in practices on the basis of “accurate knowledge of the conditions of society”
(Llewellyn 1934: 212). His legal realism is a jurisprudence in action, which is to say
a law in action, expressing the philosophy in action of American pragmatism.
But these patterns of action are conceivable only on the basis of a philosophical
assumption that is concealed in Llewellyn™s text: the assumption that language is a
matter of one-to-one semantic relationships. A word must maintain a correspon-
dence to a reality beyond language so that our words will mirror reality, the action
of life. Law™s speech, the word of judges in the ¬rst place, only makes sense if reality
is empirically present and not the sole result of human expressivity and articula-
tion. Speaking of law as a ¬ctitious discourse or of legal ¬ctions in jurisprudence
is just a bad joke. Legal realism depends on judges who never speak out of touch
with reality.
Contrast this assumption with raising the question of what happens when
“judging cases under the best knowledge of all circumstances” occurs through
nontrustworthy references, words, or meanings? Friedrich Nietzsche stated that all
our references are based on a ¬ction, a fallacy. Our erroneous belief is that reality
is always just there, and it is there in order to be articulated through our language.
Western Continental philosophy characterized this fallacy as the metaphysics of
presence, which forms the basis for a large majority of methods of legal analysis,
explanation, reading, and interpretation. Jacques Derrida suggested how even the
concept of a sign, or of a name or a representation, are all rooted in such a
fallacy! That insight inspired his deconstructive efforts, which eventually causes
¬ssure in the foundations of American pragmatism. This explains the vivid interest
in Derrida™s approach in the United States, particularly outside the philosophy
departments. His ideas received more attention in the pragmatic climate of the
United States than in Europe, where scholars already were comfortable reading
Nietzsche. The insight of deconstruction provokes a breach in law™s attempt to
represent nonlinguistic reality through its proper discourse, but this is precisely
the fallacy embraced by Llewellyn™s Grand Style. The catchphrase “no philosophy”
might be recast as an anticipatory defense against a deconstructive critique.
Llewellyn™s essay demonstrates how important the relations between law and
philosophy are, even if he ostensibly attempts to withdraw legal issues from philo-
sophical consideration. It is signi¬cant that one of his most popular books, The
Bramble Bush, refers to a period of judicial decisions (the “conditioning machin-
ery”) that was grounded in the belief in a complete and comprehensive legal
system, with new forms of law strictly referring to existing law, and with rules of
law in the books that dominate theory and practice through conceptualism and
predictability. Llewellyn (1960a: 158) speaks about that period as the least happy
days of our legal system. Recognize that this is not because of the ¬ctitious charac-
ter of legal reference but because of the beliefs that found the legal system! It is no
surprise, then, that Llewellyn con¬rmed how Roscoe Pound™s instrumentalism was
perhaps even more in¬‚uential than his own realism. By 1908, Pound had already
coined the term that judges are in essence social engineers who need to make their
engineering theories explicit, and he later elaborated this thesis in his 1913 essay
The Philosophy of Law in America, which later provided the title of Llewellyn™s
article.
18 Jan M. Broekman

Legal scholars must understand that Llewellyn™s legal realism has yet to come
to terms with the fallacy that institutes the sequence of cases, names, and signs as
the reality of the legal order; in other words, it has failed to come to grips with the
metaphysics of representation. Law in life must treat cases as traces in a legal system
that emerges “ like life itself, Gilles Deleuze teaches. Llewellyn™s Grand Style rests
on a grand fallacy in order to unfold law in life, but no legal realist has been realistic
enough to grasp how it desires to unfold beyond that concealed fallacy. Llewellyn™s
appeal to a sociological jurisprudence can at most be read as a sign or a trace of
such a desire to awaken life in law!

WORKS CITED

Broekman, Jan M. A Philosophy of European Union Law. Leuven, Belgium: Peters, 1999.
Brunner v. European Union Treaty, 1 Common Mkt. L. Rev. 57 (1994).
Fikentscher, Wolfgang. Methoden de Rechts. Band II: Anglo-Amerikanischer Rechtskreis.
T¨ bingen, Germany: Mohr Sieback, 1975.
u
Holmes, Jr., Oliver Wendell. The Common Law. New York: Dover Publications, Inc., 1991
(1881).
Larenz, Karl. “Vom Wesen der Strafe.” Zeitschrift f¨ r Deutsche Kulturphilosophie. Vol. 2
u
(1936).
Leiter, Brian. “Llewellyn, Karl Nickerson (1893“1962).” In International Encyclopedia of the
Social and Behavioral Sciences. Eds. Neil J. Smelser and Paul B. Baltes. Oxford: Pergamon-
Elsevier Science, 2001, 8999“9001.
Liebmann, George W. The Common Law Tradition: A Collective Portrait of Five Legal Scholars.
New York: Transaction Publishers, 2006.
Llewellyn, Karl N. The Bramble Bush: On Our Law and Its Study. New York: Oceana, 1960a.
. The Common Law Tradition: Deciding Appeals. Boston: Little, Brown, and Co.,
1960b.
. My Philosophy of Law. Boston: Boston Law Co., 1941.
. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
Twining, William L. Karl Llewellyn and the Realist Movement. London: Weidenfeld and
Nicolson, 1986.
3 On Realism™s Own “Hangover” of Natural Law
Philosophy: Llewellyn Avec Dooyeweerd
david s. caudill


“Ever since the era of the Legal Realists (such as . . . Karl Llewellyn),” remarks
Litowitz (1997: 164), “lawyers have been aware that legal outcomes are somewhat
indeterminate and unpredictable.” Hence the saying, “We™re all realists now.”
Then there was the joke among some law professors at the annual meeting of the
American Association of Law Schools following the U.S. Supreme Court™s handling
of Bush v. Gore “ which seemingly con¬rmed that law is politics (the slogan of
critical legal studies) “ that “we™re all crits now.” But Karl Llewellyn, describing
in 1934 the state of philosophy in American law, identi¬ed a sense in which we
were, and I believe still are, all natural lawyers. (It is only a sense, because we are
obviously not all formal adherents of the natural law tradition, any more than we
are all realists or “crits.” But natural law, in a sense, is the fallback position for all of
us.) And that sense on Llewellyn™s part provides an unlikely link to a contemporary
of Llewellyn (1893“1962), the Dutch legal theorist Herman Dooyeweerd (1894“
1977) “ unlikely, because Dooyeweerd was no realist, but rather a neo-Calvinist
natural lawyer.
Dooyeweerd, like Llewellyn, was trained in law, not philosophy, but he became
a leading philosopher in the Netherlands. As Llewellyn (1934) was writing “On
Philosophy in American Law,” Dooyeweerd was completing De wijsbegeerte der
wetsidee (The Philosophy of the Law-Idea) (Dooyeweerd 1935“6), which was trans-
lated into English as A New Critique of Theoretical Thought (Dooyeweerd 1953“8).
Dooyeweerd™s four-volume work has a lot in common with, and offers exhaustive
support for, some of the philosophical concerns in Llewellyn™s eight-page essay.
Despite its brevity, Llewellyn™s essay is over¬‚owing with concerns about phi-
losophy. But because of its brevity, the essay does not clearly de¬ne the term
philosophy. Llewellyn (1934: 205) begins with the term theory, quoting Pareto, as
something that a “man” makes and that “men” accept; later in the essay Llewellyn
will say philosophies are also “invented” and sometimes adopted in society. Then
Llewellyn says there is no shortage of theories or “of philosophies,” but later on
he con¬‚ates the philosophy of natural law, natural law thinking or approaches,
and the theory of right reason. Ambiguities aside, Llewellyn discusses philosophy
in one of its traditional senses as a centralized and foundational discipline, pre-
ceding more speci¬c theories and functioning as an organizing theory of theory
itself. Even as Llewellyn focuses on legal philosophy, he explores its in¬‚uence as
| 19 |
20 David S. Caudill

a generalized source of fundamental values and ideals, like justice and morality “
it supplies needs, and it tells us what is right or sound or desirable when dif¬cult
choices are made. And a legal philosophy has legs “ it provides an atmosphere
and has in¬‚uence without regard to whether its adherents recognize or can give
an account of it. This seems to add another level or aspect to the realist claim that
legal decisions often involve extralegal factors, in addition to doctrine or prece-
dent, such as a judge™s personal bias, economic interests, strategically employed
language, social class, or political views. Each of these factors, Llewellyn suggests,
can probably be traced to an explicit or implicit philosophical orientation that
merits our attention. This is not to say that the forces identi¬ed by social scientists,
psychologists, or language theorists are not signi¬cant but rather that philosophy
is also an important enterprise.
The only footnote, the asterisk on Llewellyn™s title, offers a context for his essay.
We urgently need to return to philosophy for the sake of our “aggrieved” law
students. In their disorientation, while learning a system of precedent that “works
in forty different ways,” they need more than a mere list of jurisprudential trends;
they “must see why men adopted them, and above all, how they all ¬tted into
the single picture.” They need to be “given some chart of the sweep,” to see the
difference in “feel” and tendency in our various approaches to law (Llewellyn 1934:
205). Llewellyn™s essay is intended to be a start for that project.
The obstacles, however, are numerous. Philosophers™ “writings and law-men™s
doings meet rarely on the same level of discourse,” though “part of the game is to
¬nd where they do” and do not, and why (Llewellyn 1934: 205). Philosophers are
scorned, as if they are dispensable, and those in the ¬eld of philosophy perennially
wince at such dismissal. Such scorn is, nevertheless, quite beside the point for
Llewellyn, who was “not so much concerned . . . with the philosophers themselves,
with whom indeed [his] acquaintance is but scanty.” Rather, Llewellyn highlights
“philosophy-in-action” or “implicit philosophy,” the necessity of which cannot be
escaped. Each of us will live and make things coherent “in terms of some one of
them “ or of some inconsistent hodge-podge of a dozen” “ even if the premises are
“inarticulate and in fact unthought.” Some (rarely) will choose a philosophy, but
everyone will grow “into ways of doing which comport with one philosophy and

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