November 2--Legal Process/Hart
Professor William R. Long
The Anglo-American Legal Tradition, 1940-1960
In these final five or six classes I will introduce individuals and movements in 20th-21st century jurisprudence. Terminiology and obscurity can, I think, tend to overwhelm at this point. I take it as my task to try to point out some interesting features along the way, with special attention to how we might try to periodize or conceptualize jurisprudential movements within the larger flow of American history. That is, I am committed to the proposition that legal developments are a reflection (sometimes a dim one) of intellectual and social developments in the larger culture. In this and the next essay, after an initial review, I will summarize some salient points from Feldman's book and then introduce HLA Hart, whom we will study on the Internet for part of the class period.
We spent last week trying to understand legal realism, one of the most significant indigenous movements in American jurisprudence. For the realists, law was an empirical scientific disipline, but they used "science" in a way different from Langdell in 1870. Science for the realists meant social science or the fruit of empirical research whereas for Langdell it meant a system of doctrine that derived from first principles (the "very few" principles of contract law, for example). In addition, the second generation realists, such as Frank, were interested in the process of judging and the nature of judicial reasoning. For Frank and others judging was dependent on legal principles, to be sure, but, even more, on knowing the biases and prejudices of a judge. Thus, while Pound would argue that what we needed in 1908 was a "sociological jurisprudence" to replace a "jurisprudence of conceptions," Frank argued that what lawyers needed was the equivalent of an advanced degree in psychology.
I also introduced the work of the ALI, whose Restatements of the Law began appearing in the late 1920s. [If at this point you are wondering why I spend so much time on history, read and think about Billphorism 13. You might also consider whether you agree with Billphorism 12.] The ALI and second generation legal realism were both reactions to a percevied reality of the time--the inconsistent and unclear state of the law. This unclarity resulted both from the fact that state legislatures (as well as Congress) really had not figured out the basics of statute-drafting, thus resulting in unclear, overbroad, and vague statutes and from inconsistent judicial results in 48 state jurisdictions as well as the several federal judicial districts. A maze of conflicting and uncertain precedent confronted judges. The ALI was a sort of elitist movement in law that would "clarify" for judges the nature of what the law was and what the "better" result should be.
Though the philosophy of Frank seems very different from that of the ALI, second generation realists, such as Benjamin Cardozo, could also be very active in the ALI. Both the ALI and the realists wanted the law to function better, to be more reflective of actual social/business realities and to leave behind forever the "formalism" or "conceptualism" of the "Langdellian" or "Lochnerian" era.
Legal Process Emerges
Feldman gets stronger as the book progresses. In the section assigned for today, he speaks of third stage modernist jurisprudence, referring to legal process, and fourth stage modernist crisis jurisprudence. I think his categories are helpful and I will use them here and in the next mini-essay.
Feldman posits a crisis for legal realism not unlike that faced by Langellian "formalism" at the hands of the legal realists. More specifically, however, the crisis consisted of the realization that all the empirical knowledge one could assemble didn't amount to much unless it was anchored to some kind of foundational reality, which legal realism didn't provide. When this awareness was coupled with the cultural relativism which was in vogue in the 1920s-1940s (fueled also by the first generation of anthropological field work, which showed the variant ways that people constructed their mental and social realities), law was in real need for a modern philosophical grounding. It could not retreat to natural law; Landgell and his systematic approach was unappealing to most; legal realism had promise but it only really promised lots of individual pieces of data. What was needed was an overarching theory of law.
In addition, law as well as the rest of the culture was faced with the dual threats of socialism on the left and fascism on the right. These ideologies were controlling the destinies of millions, and they seemed to be the ideologies on the march, literally, in the 1930s.
Dewey and the Triumph of Democratic Process
In this connection I think Feldman is correct in emphasizing the signal contribution of John Dewey to shaping an American philosophy that would have legal instantiation in the 1940s and 1950s. When dealing witih complex terminology which is bandied about by people, try to see the terms as really simple things that respond to certain social realities that the person using the terminology might not mention or even be aware of. Also, you should be prepared for the notion that the more "abstract" your terminology, the greater the chance that no one is communicating with anyone. So, what is the "simple" message of Dewey? As Feldman points out, the central message of Dewey on democracy was that democracy is strong and ought to be embraced because it honors democratic process and it emerges from social consensus.
The next essay will try to explicate these, as well as introduce HLA Hart.
Copyright © 2004-2007 William R. Long