Postmodern Legal Movements

Law and Jurisprudence At Century's End

Gary Minda

• Publisher: NYU Press
• Year: 1996
• ISBN:
  9780814761014
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

What do Catharine MacKinnon, the legacy of Brown v. Board of Education, and Lani Guinier have in common? All have, in recent years, become flashpoints for different approaches to legal reform. In the last quarter century, the study and practice of law have been profoundly influenced by a number of powerful new movements; academics and activists alike are rethinking the interaction between law and society, focusing more on the tangible effects of law on human lives than on its procedural elements.

In this wide-ranging and comprehensive volume, Gary Minda surveys the current state of legal scholarship and activism, providing an indispensable guide to the evolution of law in America.

Part One
Modern Jurisprudence, 1871–1980

1. Origins of Modern Jurisprudence

Modern American jurisprudential studies began when the dean of Harvard University Law School, Christopher Columbus Langdell, published the first modern law school casebook, SELECTION OF CASES ON THE LAW OF CONTRACTS, in 1871. Langdell’s casebook ushered in the modern era because it offered a new methodology and pedagogy for law study that was nothing more than an expression of faith in the scientific method. He declared in the preface to his Contracts casebook: “It is indispensable to establish at least two things, first that law is a science; secondly that all the available materials of that science are contained in the printed books.”¹ In keeping with the spirit of Enlightenment, Langdell had faith in the powers of science and reason to uncover universal truths.² The late Grant Gilmore,³ a distinguished twentieth-century contracts and commercial scholar, called Langdell a “symbol” of “the Age of Faith.”⁴ Another way to describe this is to see Langdell as an architect of what Thomas Grey called the “classical orthodox system” of American legal thought.⁵

The refinement of Langdell’s classical orthodox system was premised on the view that law is a complete, formal, and conceptually ordered system that satisfies the legal norms of objectivity and consistency. Completeness meant that this system was capable of providing uniquely correct solutions or “right answers” for every case brought for adjudication.⁶ Formality meant that the system was capable of dictating logically correct answers through the application of abstract principles derived from cases.⁷ The system was conceptually ordered to the extent that its substantive bottom-level rules were coherently derived from a small number of relatively abstract principles and concepts, creating a holistic system.⁸ While it is generally thought that Langdell’s classical orthodox system was the antithesis of modern legal thought, in actuality it helped establish the argumentative logic of a form of legal modernism known as conceptualism.

Conceptualism (“law as logic”) is what Karl Llewellyn called the “Grand Style” in American legal thought—a form of logic that classifies legal phenomena on the basis of a few fundamental abstract principles and concepts developed from the distinct methods of legal reasoning.⁹ Legal conceptualists like Langdell used logic to go from legal premises to legal conclusion: basic legal concepts and definitions (premises) were assumed to be self-evident such that a logical correct choice of premises was thought possible. Logic was used to go from the premises to the legal conclusion.¹⁰ Conceptualism was “the project of structuring law into a system of classification made up of relatively abstract principles and categories.”¹¹ Modern conceptual jurisprudence harkens back to the Langdellian idea that law is a value-free science. Conceptual legal thought includes logical positivism, technical doctrinalism, and court-centered theories of adjudication such as legal process theory and neutral principles of adjudication.

Langdellian conceptualism can be discovered in the way Langdell wrote about law. In his writing, the law is a transcendental object or transcendental subject unaffected by social and economic context.¹² When Langdell wrote of law, he wrote like a precocious antihumanist. He wrote in the third person a lot. For example, “A debtor becomes personally bound to his creditor for the payment of debt.”¹³ The debtor and the creditor are unnamed individuals who are the legal abstractions of Langdell’s analysis of commercial law. Langdell, the propounder of the law, never let the reader know that it was he, rather than the “law,” who created the discourse and conducted the analysis.¹⁴ Langdell’s analysis of the debtor’s liability was conceptual because it represented law as an “intrinsic, essential object” independent of context. In contemporary jurisprudence, this way of talking and thinking about law is known as the “formal style” of conceptual legal thought. Conceptualists who are formalists believe that law should be justified on the basis of uncontroversial rules and self-evident doctrinal premises insulated from external moral and ethical concerns.¹⁵

Legal conceptualists who followed Langdell’s orthodoxy assumed either that law was a transcendental object possessing universal properties unaffected by analyzing subjects, or that law was itself a transcendental subject capable of rendering authoritative pronouncements.¹⁶ Conceptualists thus projected a particular interpretive stance developed for a highly abstract and fictitious mode of analysis. The law of contracts, for example, has been treated as a body of fixed objects, of rules, principles, or policies that could be discovered by someone; or, contract law itself has been assumed capable of rendering its own pronouncements without the assistance of any legal actor. A contract for the sale of groceries was like all other contracts, because all contracts worthy of legal enforcement were required to satisfy certain universal rules established by an objective theory of contract law.¹⁷ The law could declare that “A contracts with B” because the universal pronouncements of contract law defined the rules governing the sale of groceries as well as contracts for employment. In this way, Langdellian rhetoric portrayed law as either a transcendental object or transcendental subject, but in either case the role of the analyzing subject was eclipsed.¹⁸

Modern legal scholars, judges, and lawyers continue to exclude themselves from the process of interpretation in order to preserve their belief in the autonomous object/subject—the Law. Today, modern legal conceptualists believe that law is an “imminently intelligible enterprise” which “elaborates itself from within.”¹⁹ Judges who make decisions and attempt to understand the system are assumed to be only relatively autonomous in the sense that they control their own thoughts and actions, but their freedom to act is thought to be limited by the legal texts they interpret, and by the reasoning process they apply in the process of interpretation and decision making. The texts and reasoning of the law define the identity of the modern legal thinker as a relatively autonomous self.²⁰ Legal subjects continue to believe, as Langdell did, that they are capable of bringing order and reason to the objective world of law.²¹

The supposed objectivity of law is today justified by boundary definitions that distinguish the rational process of the law from the domains of politics and popular culture of interpreting subjects. The boundary between law and society has become a familiar way for lawyers to maintain their belief that law can be discovered conceptually in the object-forms of rules, principles, and doctrines. Langdellians believed that the object-forms of the law were immune from the ever-changing nature of society. Society might change, but they thought that the universal principles of law would endure forever. Modern-day legal conceptualists reject the idea of an artificially fixed line between law and society, but continue to believe that law and its methods can be objectively administered by disciplinary rules of the legal community.²² Conceptual jurisprudence thus describes a whole series of jurisprudential theories devised by legal scholars to develop a less political and more objective understanding of law and culture.

If law could be like a science, then legal studies could aspire to be a serious discipline in the university. The reduction of law to concepts systematized by Langdell’s case method of instruction rendered legal apprenticeship obsolete as a means for professional law training, since it was no longer necessary to study law as a practice; all that one needed to learn the law was a classroom, casebooks, and a teacher trained in the Socratic method of instruction.²³ The modern American law school, modeled after Langdell’s Harvard Law School, could subsequently claim membership in the university community, with equal, if not greater stature and status.²⁴ Law professors could aspire to join university professors in the common quest for the discovery of truth. These developments permitted law to be studied as a “normal science.”

Langdell gave American legal studies a new faith in the powers of law to dispel the darkness of the ancient common law, with its confusing and incoherent terminology and theories. Gilmore said that “if Langdell had not existed, we would have had to invent him.”²⁵ Indeed, modern legal thought would not have been possible without Langdell, or someone like him. Langdell’s great idea that “law is a science” was consistent with the modernists’ belief that reason and science could and should rationalize and control the dark mysteries of the ancient law. For American lawyers at the dawn of the twentieth century, the spirit of Enlightenment could be found in the Langdellian faith in the omnipotence and liberating potential of reason and science to penetrate the essential truths of legal relations.²⁶

The course of modern American jurisprudence was influenced by another great legal modernist, Oliver Wendell Holmes.²⁷ As Grant Gilmore put it: “If Langdell gave the new jurisprudence its methodology, Holmes, more than anyone else, gave it its content.”²⁸ Indeed, the modern era in jurisprudence did not bloom full-flower until Holmes gave a series of lectures at the Lowell Institute in Boston in November and December of 1880. These lectures were the basis for Holmes’s great book, THE COMMON LAW, published in 1881,²⁹ and marked the beginning of the modern era in jurisprudential studies: they set the basic themes of American law in a distinctively pragmatic direction.

In the opening passage of THE COMMON LAW, Holmes enunciated what contemporary legal thinkers have identified as “central, pragmatic tenets” of American law.³⁰ His view of law was pragmatic because it situated law in the world of “felt necessities” of intuition, prejudice, tradition, and social context. He declared: “The life of law is not logic but experience.”³¹ In conceiving “law as experience,” Holmes expressed the pragmatic version of the philosophy associated with John Dewey, William James, and Charles Sanders Peirce, who rejected the foundationalist tradition in Western philosophy in favor of the thesis that knowledge and human thought are situated within the social and habitual practices or “forms of life” of culture.³² For Holmes, “law [was] constituted of [human] practices—contextual, situated, rooted in custom and shared expectations.”³³

In evaluating law within situated social practices, Holmes argued in favor of a pragmatic approach to law, which viewed law as a means for achieving desired social ends of people. His view was that “continuity with the past is no duty but only a necessity”;³⁴ for him “adjudication should and must be result-oriented, fundamental [and] legislative.”³⁵ Influenced by American pragmatist philosophers of his day,³⁶ Holmes renunciated faith in the ability of a rationalist epistemology to distinguish truth from falsehood and instead favored a practical, functional understanding of truth and knowledge. He shared the pragmatists’ belief that facts and values were derived from experience, and that knowledge about the world was possible only through experimentation.³⁷ For Holmes, truth was a function of social power, and law expressed that power.³⁸ “Thus, while Holmes felt that law ought to be a science, it was a science of experience, facts, and induction.”³⁹ Like Langdell, Holmes believed that law was a “science” of categorization and deduction. But Holmes’s jurisprudence, unlike Langdell’s, was a science of categorization and deductions based on antiformalistic ideas of pragmatic thought as well as logical reason.

Although Holmes was critical of Langdell’s emphasis on formal logic, he was also a conceptualist.⁴⁰ Holmes criticized Langdell for giving too much importance to the power of syllogism and logic.⁴¹ He believed that any generalized theory of law would have to take human social conditions into account and respond to them. For Holmes, the conceptual order of the legal system was merely a “practical aid in teaching and understanding law.”⁴² As Thomas Grey recently explained: “Unlike Langdell, Holmes did not believe doctrinal conceptualization could produce a deductive system that would make legal reasoning formal and scientific.”⁴³

Holmes revolted against Langdell’s idea that law and legal decision making were governed by rules alone. In place of Langdellian formalism, Holmes argued in favor of a pragmatic and instrumental approach, which subordinated logic to the “felt” experience of human history. Holmesian jurisprudence subsequently set the stage for the modern style of jurisprudence known as normative legal thought.⁴⁴ In modern times, normative legal thought has become associated with “conclusion-oriented” instrumental policy analysis.⁴⁵ It establishes the normative structure of legal policy in the law; what Pierre Schlag called “rhetorical levers” used by official authorities to instrumentally summon and coerce individuals and institutions.⁴⁶ Normative legal thought describes “the prime cultural pieces by which lawyers manipul...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Preface
• Introduction
• Part One: Modern Jurisprudence, 1871-1980
• Part Two: Jurisprudential Movements of the 1980s
• Part Three: Postmodern Jurisprudence, 1990s and Beyond
• Conclusion: Jurisprudence at Century’s End
• Notes
• Index