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not with another” (206).
Llewellyn then turns to his brief history of jurisprudence as it has been lived
in the United States. We began in a natural law atmosphere, with self-evident
truths, the essential nature of government (“whether derived from Montesquieu
or Reason”), and the natural “heritage of the individual citizen” (Llewellyn 1934:
206“7). Irrespective of its effect on government, the philosophy of natural law pro-
vided the foundation for private law, rendering English cases as merely suggestive
for 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. . . . [I]nstinct and theory of right reason
continue to correct reception of the English law” (207). After the Civil War, “the
Business Man took hold of the ideology of America” and positivism became the
dominant philosophy of law. Forgetting “right reason,” “morality,” and the acci-
dent of justice, a “legal system exists to preserve the law as is.” But when positivism
was applied to case law (nursed and guided by “a philosophical presupposition of
On Realism™s Own “Hangover” of Natural Law Philosophy 21

natural law”), our discordant precedents were all positive (Llewellyn 1934: 208).
“The choice among inconsistent precedents (say, ˜on principle™) was . . . an echo of
the already decadent philosophy of immutable ˜natural law.™” And when the “front
of battle shift[ed],” and there was no precedent for “due process” and “equal pro-
tection,” the “prevailing positivism, explicit or implicit, gave no footing. Again the
approach was along the lines of natural law. Right reason is the guide. . . . Observe
the ways of implicit philosophy. Natural law in the constitutional ¬eld rides hand
in hand with positivism on the private side” (4: 209). So ends the nineteenth
century.
Llewellyn then shifts his attention to new legal philosophies, realism, and socio-
logical jurisprudence, promulgated by “writers whose work is far from mirroring
the action of their legal contemporaries in the bulk.” In Pound™s sociological
jurisprudence, which reintroduces ethics “with a vigorous social ¬‚avor” into the
law, the “critique of the law is to proceed not from the inside but from the outside.
Once again with a hangover of natural law thinking. For to discover social values
one turns to Reason in the armchair” (Llewellyn 1934: 211). But to make socio-
logical jurisprudence “real required more than armchair estimates,” and to judge
law “by its effects called for more exact knowledge both of what law was and of
what its effects must be” as well as “more accurate knowledge of the conditions of
society.” Hence, “Realism. . . . From the positivists, the realists take [but increase
the scope of] the insistence on concrete data. . . . From Holmes . . . they take a cyni-
cism of vision, an insistence on treating words as mere tools. . . . 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.”
Llewellyn calls this perspective, his own, hopelessly unorthodox, and remarks that
the “profession at large still shows, at times, the in¬‚uence of the natural law of
one hundred years ago” (though more vitally, the positivism of 1880, and some
in¬‚uence by sociological jurisprudence). Realists, ¬nding “as yet little echo among
judges,” nevertheless are in “their lines of thinking . . . so much closer than any
others to the actual behavior of the better bar,” and “their judgments of policy
come backed by facts” (212).
Then Llewellyn stops, without saying that a confessing realist judge™s philosophy-
in-action or implicit jurisprudence will be, like all other judges he discusses, nat-
ural law. Indeed, natural law “cannot maintain its substance to a cynical eye”
(Llewellyn 1934: 210). Llewellyn here uses the term natural law quite informally
to refer variously to belief in self-evident truths, to “[r]eason as the law” that
allows judges “to think, to see, and to decree as seen,” to the choice “on prin-
ciple” among inconsistent precedents (decisions that we like are “sound”), and
to “judge™s notions of the way things should be” in the absence of precedents.
Pound™s sociological jurisprudence suffered a natural law hangover because he
found social values in armchair reason and in his own “desultory experience as
he may have had about the matter” (211). Realism avoids such estimates through
concrete data (e.g., the Cleveland crime survey), exact knowledge of law and its
effects, accurate knowledge of social conditions, and a focus on results. Realists, it
seems, do not believe in determinative reason, self-evident truths, or immutable
moral principles. And yet a realist judge who was a proto-Posnerian, in Leiter™s
22 David S. Caudill

(2005: 58“9) terminology, “would tackle directly exactly the kinds of political and
economic considerations a legislature would weigh,” and “Llewellyn thought it was
good that judges were inclined in commercial disputes to try to enforce the norms
of commercial culture.” Why are such policy decisions not “an echo of natural
law?”
The answer is in Realism™s “temporary divorce of Is and Ought for purposes of
study. . . . [D]uring the inquiry itself into what Is, the observation, the description,
and the establishment of relations between the things described are to remain as
largely as possible uncontaminated by the desires of the observer or by what he
wishes might be or thinks ought (ethically) to be” (Llewellyn 1931: 1236).
Even though “value judgments must always be appealed to in order to get
objectives for inquiry,” and even though “a permanent divorce would be impossi-
ble” when change is perceived as necessary, Llewellyn insists that Realism has no
normative aspect (Llewellyn 1931: 1254). Realists, Llewellyn “hazards,” generally
agree on some things “ the importance of court organization and the need to “face
squarely” policy questions, to know the effects of rules, and to allocate risk “ but
not on what changes in law should be made (Llewellyn 1931: 1254“5). Leiter (2005:
58“9) therefore identi¬es in Llewellyn a certain “normative quietism;” Llewellyn
of course had normative preferences, but he did not view realism as a norma-
tive guide for judges. Eventually, however, after the temporary divorce, after the
acknowledgment of ethical pluralism, after detailed knowledge of legal concepts
and socioeconomic contexts, and after examining social reality for its “customary
practices and beliefs” or “immanent law” (Fischer, Horwitz, and Reed 1993: 170),
decisions will need be made as to what is a “good” effect, a “sound” outcome, or a
“right reason.” According to Llewellyn™s own historiography, these would seem to
represent hangovers of natural law thinking.
I am not criticizing realism “ I agree that law and legal doctrine are indetermi-
nate, and that other factors are in play. And I agree that a deeper understanding
of how law actually works and more knowledge of social conditions “ facts “ are
always helpful. I even agree with Llewellyn that realism is closer than any other
jurisprudence to the actual behavior of the best lawyers, who know that precedents
are incomplete and ¬‚exible, and that judicial personalities as well as judges™ politi-
cal, economic, and moral prejudices are in¬‚uential in the decision-making process,
even when veiled by doctrinal rhetoric. Critical legal studies (CLS), which updated
realism in terms of neo-Marxism and French critical theory, likewise highlighted
those aspects of law. And even as CLS splintered into some versions of feminist legal
theory, critical race theory, and postmodern approaches, its enduring legacy was
the disclosure of ideology, belief structures, and presuppositions that functioned
as faithlike commitments in all legal-theoretical thought. In Llewellynian terms, all
jurisprudence has a natural law hangover in the sense that it cannot avoid recourse
to norms, values, or principles grounded in something that looks like a religious
commitment, even when God is replaced by reason, common sense, self-evident
truths, or any understanding of the way things are and should be.
That was the view of Herman Dooyeweerd, a professor of law at the Vrije
Universiteit Amsterdam from 1926 to 1965. In more than two hundred books
and articles, he developed a complex philosophical system based on Abraham
On Realism™s Own “Hangover” of Natural Law Philosophy 23

Kuyper™s neo-Calvinism, but he was in¬‚uenced along the way by neo-Kantianism
and phenomenology. One aspect of Dooyeweerd™s thought is particularly relevant
to Llewellyn™s essay, namely, Dooyeweerd™s view that human beings are necessarily
“religious,” even those who do not belong to a traditional religious faith or commu-
nity. Dooyeweerd used the term ground-motives (grondmotieven) to describe the
various philosophical orientations that provide ideals and motivation in culture
generally. As to theoretical thought, there will always be pretheoretical commit-
ments that function like religious beliefs, that ground theory. According to H. J.
van Eikema Hommes, the successor of Dooyeweerd™s chair in jurisprudence and
his close disciple, Dooyeweerd™s transcendental critique con¬rmed that theoreti-
cal thought is always “subject to fundamental, centrally religious motives which
dominate a thinker at heart” (Hommes 1979: 1). In his popularized formulation
of that view, Nicholas Wolterstorff, a philosopher in¬‚uenced by Dooyeweerd, calls
these fundamental motives “control beliefs,” which function alongside data and
“data-background beliefs” in theoretical thought:

[O]ne remains cloaked in belief “ aware of some strands, unaware of most. . . .
For one thing, there will always be a large set of [data-background] beliefs such
that one™s holding them is a condition of one™s accepting as data that which one
does. . . .
[I]t is even more important to bring to attention a second component in the
cloak of beliefs . . . while weighing a theory. Everyone . . . has certain [control]
beliefs as to what constitutes an acceptable sort of theory on the matter under
consideration. . . . Because we hold them we are led to reject certain sorts of theo-
ries . . . control beliefs also lead us to devise theories. . . . We want theories . . . that
comport as well as possible with those beliefs. (Wolterstorff 1976: 62“4)

In a more sophisticated formulation, Hendrik Hart, a philosophical heir and
friendly critic of Dooyeweerd, highlights the challenge “to look for the extrathe-
oretical factors needed to complete theory. Over twenty years before. . . . Polanyi™s
Personal Knowledge [1958] . . . , Dooyeweerd forcefully advanced the conviction
that knowledge . . . is personal . . . , [which] reinforces the concept of the relativity
of the rational aspect of human experience. Dooyeweerd never subscribed to the
view which treats our conceptional faculties as autonomous, isolated and substan-
tivized.” Hence Dooyeweerd™s exhaustive critique of “the pretended autonomy of
reason”; because of the relativity of rational knowing, reason is not the “measure
of the truth about . . . the world” (Hart 1985: 151).
Having acknowledged his own religious starting point, Dooyeweerd went on
to construct a normative theory of law that is both part of the natural law tradi-
tion and highly critical of many natural law conceptions. For purposes of com-
parison to Llewellyn, however, Dooyeweerd™s critical method parallels the realist
effort to reveal the “heavily operative” factors (Llewellyn 1931: 1237) “ apart from
legal doctrine, itself indeterminate “ that produce court decisions. Like Llewellyn,
Dooyeweerd felt that philosophy mattered, and that a philosophical orientation is
inevitable. As a practice, Dooyeweerd (1953“8: 4) de¬ned philosophy as theoretical
re¬‚ection directed toward “cosmic” coherence, but Dooyeweerd also acknowledged
the cultural power of philosophical orientations even when they are unconscious
24 David S. Caudill

and unacknowledged. His theory of Western ground-motives is a theory of
implicit philosophy or philosophy-in-action, which Llewellyn (1934: 206) de¬ned
as the “premises, albeit inarticulate and in fact unthought, which made coher-
ence out of a multiplicity of single ways of doing.” Philosophies, for Llewellyn,
become “established in the habits and attitudes” of social groups. Such analyses
have numerous parallels in contemporary theory, from the ideology critique of
neo-Marxian social theory and the postmodern critique of Enlightenment founda-
tionalism (both of which inspired many critical legal scholars), to poststructuralist
literary theory™s sense of language as a social force, and to the history, philosophy,
and sociology of science: “Michael Polanyi™s theory of the scientist™s indwelling
in his framework of commitment, J¨ rgen Habermas™s theory of the role of the
u
human interest in science, Gerard Radnitzsky™s theory of steering ¬elds internal to
science, and Thomas Kuhn™s theory of the role of paradigms are all pre¬gured in
the way Dooyeweerd worked out his theory” (Hart 1985: 145). Interest in the “role
of extraconceptual factors in theoretical inquiry” and the “connections between
theory and the ultimate commitments of those who theorize” is as evident today
as it was in the work of Llewellyn and Dooyeweerd (Hart 1985: 150).
Just as Llewellyn identi¬ed the natural law hangover in Pound™s recourse to
social values, van Eikema Hommes (1979: 292) saw in the sociological approach
to law a “social-normative prognosis [that presupposes the norms of social life] and
is meaningless without them. In other words a prognosis of probable legal conduct,
as well as the true expectations of the legal subjects presuppose legal norms and
their real normative validity. If these norms were lacking the expectations would
be baseless and the prognosis unfounded.” And even as some realists tried to
“eliminate the normative character of law and [attempt] to reduce law to the
actual conduct . . . of judges,” Hommes argues (1979: 312), legal norms “happen
to occupy and essential and undeniable position in legal life” “ they cannot be
reduced to facts. Recourse to social well-being, the ideal of justice, human needs,
or normative generalizations “ each of them a highly contested conception “ only
serves to revive the natural law impulse identi¬ed by Llewellyn in the history of
American legal philosophy.
And yet Llewellyn wants to avoid, in his realist methodology, the contamination
of value judgments, and the term natural law obviously has a pejorative connotation
throughout his brief essay on legal philosophy. Llewellyn admires Justice Holmes
(1964: 82), who said that “jurists who believe in natural law seem to me to be in
that na¨ve state of mind that accepts what has been familiar and accepted by them
±
and their neighbors as something that must be accepted by all men everywhere.”
I understand that natural law adherents might claim a universal validity for their
deep-seated preferences, while realists concede the social and historical relativity
of their deep-seated preferences, but both sets of preferences function in the same
manner. I even understand that a realist might be more self-critical than a naive
natural lawyer and therefore call upon social science, concrete data, and empirical
studies to back up policy decisions while remaining alert to rhetorical strategies in
legal discourse. But in Dooyeweerdian terms, self-critical re¬‚ection will reveal that
our knowledge “is not simply a direct and neutral given of observation, but . . . is
in part a subjective cultural product of our subjective selves with all our underlying
On Realism™s Own “Hangover” of Natural Law Philosophy 25

philosophical assumptions” (Hart 1985: 147). Llewellyn™s warning, to those who
scorn philosophy, that they cannot escape the necessity of living “in terms of some
of them,” applies to Llewellyn and the realists, and to all of us.
The sense in which Dooyeweerd is a realist is that self-evident truths, reason,
the essential nature of government, the ideal of justice, social values, principles
of soundness, and so forth, are belief structures “ to view them as foundational
is an uncritical prejudice. Dooyeweerd, and implicitly Llewellyn, level the playing
¬eld by suggesting that every theorist should re¬‚ect upon and become aware of
his or her assumptions. Unlike Holmes (1964: 81), who said that “deep-seated
preferences can not be argued about,” Dooyeweerd thought that his transcenden-
tal critique could “pave the way for a real contact of thought among the various
philosophical trends.” He recommended a “merciless war against the masking
of supra-theoretical prejudices as theoretical axioms” (Dooyeweerd 1953“8: 70),
and he claimed no monopoly on truth for his own inquiry: “As a philosophy it
does not in any way demand a privileged position for itself; on the contrary,
it seeks to create a real basis for philosophical dialogue among the different
movements . . . in terms of their own respective deepest spiritual backgrounds”
(Dooyeweerd 1996: 4). Dooyeweerd therefore saw a lot of room for dialogue and
argument about deep-seated preferences “ identifying assumptions, challenging
their status, inquiring about their sources, and defending their results as good for
everyone.
To the likely distress of actual natural law philosophers, Llewellyn™s (and my own)
use of the term natural law to refer to any determinable value judgment or pref-
erence, including reason in the armchair, is probably unfortunate. In Llewellyn™s
defense, he does describe these phenomena as “echoes” of, as approaches “along
the line of,” and as “hangovers” of the philosophy of natural law (Llewellyn 1934:
209, 211). Natural law is just a catchphrase for a decadent tendency to pretend that
personal preferences are somehow in accord with higher reason or immutable prin-
ciples. Dooyeweerd would have referred to the uncritical dogma of the autonomy
of reason, reserving the term natural law for his own style of jurisprudence (Dooye-
weerd 1996: 19“25). But Dooyeweerd would also have referred to all jurisprudential
movements as “religious,” in the sense of their inevitable faith in pretheoretical
assumptions, and he was of course not being pejorative.
The targets of Llewellyn™s critical essay, and Dooyeweerd™s critique of theoretical
thought, are sometimes the same. Both emphasize concrete data, and Dooyeweerd
argued that all disciplines must prove their worth in their fact-¬lled ¬elds (Hommes
even wanted to call Dooyeweerd™s approach “transcendental-empirical”). Both are
suspicious of reason as an allegedly universal source of guidance, because both see
its relativistic foundation in a philosophical orientation. Llewellyn thought that
such an orientation should be replaced by another orientation “ one that would
insist on concrete data, that would see words as mere tools, that would be grounded
in social needs and validated by results. That new orientation, Dooyeweerd would
point out, cannot avoid pretheoretical commitments. Every philosophical orienta-
tion involves claims that it is natural, that it describes the way things are and should
be. In that sense, every philosophical orientation is religious, based on faith, such
that a natural law hangover is inevitable.
26 David S. Caudill


WORKS CITED

Dooyeweerd, Herman. “Calvinism and Natural Law.” Trans. A. Wolters. In Essays in Legal,
Social and Political Philosophy. Eds. John Witte Jr. and Alan Cameron. Lewiston, NY:
Edwin Mellen Press, 1996.
. Christian Philosophy and the Meaning of History. Trans. J. Vriend. Lewiston, NY:
Edwin Mellen Press, 1996.
. De wijsbegeerte der wetsidee. 3 vols. Amsterdam: H. J. Paris, 1935“6.
. A New Critique of Theoretical Thought. 4 vols. Philadelphia: Presbyterian and
Reformed Publishing, 1953“8.
Fischer, William W., III, Martin J. Horwitz, and Thomas A. Reed, eds. American Legal
Realism. Oxford: Oxford Univ. Press, 1993.
Hart, Hendrik. “Dooyeweerd™s Gegenstand Theory of Theory.” In The Legacy of Herman
Dooyeweerd: Re¬‚ection on Critical Philosophy in the Christian Tradition. Ed. C. T. McIntire.
Lanham, MD: Univ. Press of America, 1985, 143“66.
Holmes, O. “Natural Law.” In The Holmes Reader. Dobbs Ferry, NY: Oceana Publications,
1964, 81“4.
Hommes, H. J. van Eikema. Major Trends in the History of Legal Philosophy. Amsterdam:
North-Holland Publishing, 1979.
Leiter, Brian. “American Legal Realism.” In The Blackwell Guide to the Philosophy of Law
and Legal Theory. Eds. Martin P. Golding and William A. Edmundson. Oxford: Blackwell
Publishing, 2005, 50“66.
Litowitz, Douglas E. Postmodern Philosophy and Law. Lawrence, KS: Univ. Press of Kansas,
1997.
Llewellyn, K. N. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
. “Some Realism about Realism “ Responding to Dean Pound.” Harv. L. Rev. 44.8
(1931): 1222“56.
Wolterstorff, Nicholas. Reason within the Bounds of Religion. Grand Rapids, MI: William B.
Eerdman™s Publishing, 1976.
4 On the Instrumental View of Law in American
Legal Culture
brian z. tamanaha


Karl Llewellyn™s “On Philosophy in American Law” was not a philosophical essay
but rather a chronological survey of the impact of philosophical ideas about law
in American legal culture since the founding. Llewellyn (1934: 206) made this
clear at the outset of his essay: “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 with
the philosophers themselves, with whom indeed my acquaintance 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.” It is important to consider the impact of
philosophical ideas in this sense, Llewellyn wrote, because “once a philosophy has
been established in the habits and attitudes of any person, it has effects” (Llewellyn
1934: 206).
An underlying theme of Llewellyn™s survey is that philosophical ideas have time
and again been enlisted in law to serve the powers that be. His sketch can be
conveyed in a few strokes. Matters started off well enough at the founding and
for several subsequent generations, Llewellyn suggests, during which judging was
infused with ideas about natural law and right reason. This was a period of dynamic
change in the country and economy, and judges (in a “Grand Style”) used these
ideas to adapt the inherited English common law to rapidly changing needs and
circumstances, or invoked them to discard what could not be adapted successfully.
The situation changed in the second half of the nineteenth century. What business
captains required most from law were certainty, the protection of property, and the
enforcement of contracts; questions about morality were relegated to secondary
importance. Positivism, the idea that law is law, served this stage well. “Thus urge
was for a solid something on which to build, of course, with the aforesaid exception
for extensions made necessary by business needs” (Llewellyn 1934: 209) Histor-
ical jurisprudence and natural law ideas were enlisted along with positivism to
sanctify whatever legal doctrine was revealed to be the right one (i.e., favorable to
business). But a new threat emerged for business interests at the close of the nine-
teenth century, when popular movements, including labor, controlled legislatures
and began using the legislative power to enact laws in their interests. Positivism
| 27 |
28 Brian Z. Tamanaha

(law is law) was no longer useful to the moneyed class under these circumstances,
and it gave way to a new stage of interpretations by courts of the due process and
equal protection clauses in natural law“type laissez-faire terms to strike legislation
that was antithetical to business.
There matters stood, until Oliver Wendell Holmes Jr. entered the scene with his
“cynical realism.” Llewellyn characterized Holmes™s approach as a sort of unphilo-
sophical philosophy that can “be summed up as ˜Look and see precisely what is
there; and reckon with that and nothing else.™” Holmes™s main approach was to
strike “down the barriers others would by new creation set up before the leg-
islature. Natural law cannot maintain its substance to a cynical eye” (Llewellyn
1934: 210). The turn of the century witnessed the revolt of labor and farmers and
small businesses, the rise of progressivism, and the emergence of philosophical
pragmatism (James and Dewey), and of new approaches in sociology (Ross) and
economics (Veblen) that rejected laissez-faire thought. In law, Llewellyn observed,
this new age was represented by Brandeis, Pound, Hohfeld, and Bingham. Pound™s
sociological jurisprudence was critical of the prevailing exclusive focus on law and
insisted that law should be evaluated with respect to whether it serves social needs.
Not until the mid-1920s, however, did this way of thinking about law begin to
gain acceptance (re¬‚ected in Cardozo™s views), albeit recalcitrantly. Public and pri-
vate law, which had lagged in their development under the in¬‚uence of formalism,
were failing to meet the needs of society. Progress in the new effort to measure law
by its effects was hampered by scant “knowledge both of what law was and of what
its effects might be” (Llewellyn 1934: 121).
Llewellyn thus arrived in his survey at the present, circa 1934: “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, and 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.” This realistic view
“as yet found little echo among judges.” Natural law and legal positivism were still
in¬‚uential. Nonetheless, Llewellyn was optimistic about the future prospects for
realism because he felt this approach more closely matched the actions and views
of “the better bar” (Llewellyn 1934: 212).
That is where Llewellyn™s essay on the role of philosophical ideas in American
law left off. He believed that he stood at the cusp of a transitional moment, and
he projected that the new realist ways of thinking about law, still in gestation,
would ultimately win out. This was anything but certain at the time he made this
prediction. Within ¬ve years of the publication of the article, the realist movement
was in full retreat, a victim of the throes of World War II (Purcell 1973). But time
has vindicated Llewellyn™s prediction. Today, it is often said, “We are all realists
now.” Law is seen a means to an end, and the primary focus of legal analysis is on
whether law is effective in achieving ends.
Yet this transformation has not brought the bene¬ts that Llewellyn thought
would accrue from an instrumental view of law. Along with the bene¬ts of the
On the Instrumental View of Law in American Legal Culture 29

instrumental approach came damaging consequences that he and other promoters
failed to anticipate “ consequences that we struggle with today.
The remainder of this essay will pick up where Llewellyn™s essay left off, quickly
elucidating the spread of an instrumental view of law within American legal culture.
There are doubts about whether the instrumental view of law that Holmes, Pound,
and the realists promoted quali¬es as full-blown legal philosophy in a sense that
rivals natural law and legal positivism (Moore 1984), although some theorists
have made this claim (Summers 1982). There is no doubt, however, that this
instrumental understanding permeates law and is “established in the habits and
attitudes” of legal actors and nonlegal actors, with real consequences for law and
society.
The core dynamic underlying the situation will be stated at the outset. The
notion that law is an instrument was urged by its proponents in an integrated two-
part proposition: Law is an instrument to serve the social good. The crucial twist is
that, in the course of the twentieth century, the ¬rst half of this proposition swept
the legal culture, while the second half became increasingly untenable (Tamanaha
2006). People came to believe that the notion of the common good is a ¬ction;
or that there are different and irreconcilable goods attached to different groups in
society; or that even if there is a common good, we have no way to discover or
agree upon what it is. Under these circumstances, individuals and groups within
society endeavor to seize or co-opt the law in every way possible; to ¬ll in, interpret,
manipulate, and utilize the law to serve their own ends; and to utilize the law as a

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