Stages of American Jurisprudence I
Prof. Bill Long 10/25/05
From Langdell to Pound
The purpose of this and the next essay is to provide an overview of significant themes and movements/individuals in American jurisprudential thinking from about 1870-1954. The two termini of the investigation are Langdell's being named Dean of HLS and the Supreme Court's decision in Brown v. Board of Education. I am incoroporating into these essays several comments about Feldman's suggestive treatment of the post-WWII years in American Legal Thought (115-123).
Since my thesis is that "modern" America begins after the Civil War, it is appropriate to begin with Langdell.* Langdell saw the
[*A more complete history would examine several themes concerning the origins of the US Constitution as well as jurisprudential themes in the immediate post-Civil War years. See my essays on the 14th Amendment for a brief description of some of the issues.]
study and teaching of law as the mastery of a system of doctrine. In fact there were relatively few principles in each area of private law (such as the law of contracts), and these principles should be derived not from reading the professorial summaries of cases in treatises but through intense attention to the cases themselves. By patiently studying cases one would learn the doctrines, be able to put them in a systematic form and therefore have the "doctrines of contract law." Second, Langdell saw law as a scientific discipline, which meant that it had to develop its own professional language, journals, methods and materials. The law library was to the law student what the laboratory was to the scientist. It contained not simply the repository of past cases, which Holmes called the "sibylline leaves" of the past, but the raw data from which systems were to be developed. Dorothy Ross tells us that the professional ideal in American life was just beginning to develop in this period; by stressing the autonomous nature of law and of law as science, Langdell wanted to emphasize law's unique professional status. In his own words, law was a "science," and not a "handicraft."
Third, Landell's negative characterization as a rigid formalist or a practitioner of conceptual jurisprudence came from the Legal Realists who wanted to debunk what he was trying to accomplish or, more to the point, stress that it was out-of-date. Two comments in criticism of the Legal Realists characterization are in order, however. First, the world had become much more complex in the 50 or so years between Langdell and the Realists, and the concerns of 1870 were simply not the concerns of the post-WWI generation. One might criticize the consensus historians of the 1950s, for example, who posited that America was really a sort of harmonious society with ever-growing consensus among its diverse people, but the better thing to do is to realize that they were products of their time. So, the Realist criticism of Langdell falls flat, in my estimation. I don't even use the word "formalist" to describe Langdell. He was a system-builder. Second, the recent revisionist historical work on Langdell (we read Kimball's article) shows that even the Realists' characterization of Langdell as a rigid and unapproachable teacher may only have been accurate for the tail end of Langdell's career and explained by his near blindness or other factors.
Thus far Langdell, a system-builder, the initiator of the case method (read actual cases to extract doctrine), the one who wanted to elevate the study of law to a science.
Holmes and Pound
Holmes and Pound both lived 94 years, though they were born a generation apart (1841-Holmes; 1870-Pound). Their generational difference meant that certain issues only adumbrated by Holmes were more fully developed in Pound. Holmes is the more creative and brilliant stylist but both were massively learned men who had much to say about the nature of law in America. Holmes is memorable for his epigrammatic style and his creative way of looking at tort and contract law as well as legal history. His insight in 1897 that the future of law belong to the statistician and economist has been amply demonstrated in our day. His notion that the objective view of defining torts or understanding a contract should prevail over a subjective one has won the day. His argument that questions of "social advantage," rather than pure logic, determines or shapes the growth of law, is an insight that wasn't really picked up on until the 1960s. Thus, Holmes is himself almost an "oracular" figure, even though his approach to some specifics of the historical development of law are no longer much followed today.
Pound is, if possible, an even more significant figure than Holmes in the history of American jurisprudence. Already in the early 1890s he was thinking through a new approach to jurisprudence, one that would be more "organic" than "systematic." Then, in the decade of the 1890s, he devoted himself to the mastery of German jurisprudential thinking of the 19th century and concluded, beginning about 1905, that what America needed was a "sociological jurisprudence" to replace the "conceptual jurisprudence" of much of German (and American) thought. This "sociological jurisprudence" would marry law and the social sciences and would ask the question of how law actually worked in society. Pound was both an extremely able jurisprudential thinker as well as an advocate of law reform. His forceful essays (I assigned "Mechanical Jurisprudence" from 1908) served as biting critiques of the way law was practiced in America. It would not be too much of a stretch in my mind to call Pound the "father" of the following movements in American law over the next 30 or so years: (1) Legal Realism itself--the movement in the 1920s and 1930s; (2) the development of the Federal Rules of Civil Procedure in the 1920s and 1930s; and (3) the idea behind the American Law Institute and the concept of the Restatements of the Law. Finally, in a chapter of Pound's life that isn't often recognized, he had a major role in the late 1930s, as President of the ABA, in testifying against the centralization of power in the executive branch of the government through expansion of administrative agencies. His voice contributed to the vigorous debate resulting in the enactment of the Administrative Procedure Act of 1946.
The next essay continues the story.
Copyright © 2004-2007 William R. Long