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WILLIAM TWINING:TALK ABOUT REALISM(二)

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60 N.Y.U.L. Rev. 329, *
Copyright ?1985 New York University Law Review.
New York University Law Review
JUNE, 1985
60 N.Y.U.L. Rev. 329
LENGTH: 23599 words
WILLIAM TWINING:TALK ABOUT REALISM(二)


Sociolegal Studies


In a well-known article published in Law and Society Review in 1976, Campbell and Wiles set out to interpret recent developments in the study of law in society in Britain. 150 They constructed a picture of two different intellectual orientations competing for resources and intellectual prestige under the banners "sociolegal studies" and "sociology of law." "Sociolegal studies" were narrowly empirical, reformist, liberal-democratic, and untheoretical, taking the legal order for granted and concentrating on formulating policies and recommendations for reform from within. On the other hand, supporters of "sociology of law" tended to be antipositivistic, critical (in several senses), and interested in developing broader macrotheoretical perspectives on law that would be exogenous to the system. Such contrasts between empiricist social engineering approaches and critical macrotheoretical perspectives are, of course, familiar. Campbell and Wiles perceptively identified a pattern of differences among those who were seeking to develop specifically sociological approaches to law, but as an interpretation of developments in law and social science in Britain generally, this dichotomy was seriously misleading.


Campbell and Wiles admitted that their pictures of the two sides in the alleged debate were caricatures. 151 But such disarming admissions do not generate total immunity from criticism. It is difficult, but not impossible, to criticize an ideal type. The model of sociology of law presented in The Study of Law in Society seems to be derived from an [*379] important development in many British sociology departments in the 1960''s: a switch to emphasizing macrotheroretical perspectives in reaction to the kind of narrowly focused, particularistic empiricism that tended to dominate research in sociology and criminology at that time. It is also historically correct that the new emphasis on grand theory in sociology was taken up by some people interested in the sociology of law as well as by the exponents of the new criminology.


The provenance of "sociolegal studies," was quite different. This ugly term reflects its bureaucratic origin. It was coined for a government-backed funding agency, the Social Science Research Council (SSRC), to cover the area in which it would give grants for interdisciplinary work in law and the social sciences. 152 The Council''s remit was to deal with all of the social sciences, including economics, economic and social history, human geography, linguistics, management and industrial relations, planning, political science (including political theory), psychology, social anthropology, social administration, and statistics. In short, the "socio-" in "sociolegal" referred to all social sciences, and there was nothing in the remit or the policies of the original Committee on Social Sciences and the Law to give any special priority either to sociology or to any particular kind of research. About half of SSRC''s budget on sociolegal studies was allocated to one institution, the Centre for Socio-Legal Studies at Wolfson College, Oxford; its brief was to develop sociolegal research in areas other than criminology. The most striking characteristic of this Centre has been its emphasis on multi disciplinary teamwork, in which sociologists as such have played a relatively minor role. 153 This is partly because two of the most prominent sociologists at the Centre -- J. Maxwell Atkinson and Anita Pomerantz -- have been specialists in conversation analysis, a field that barely fits either of the Campbell-Wiles models. 154 Anyone sensitive to the ethnography of knowledge will recognize the implausibility of a claim that developments in relations between law and such diverse intellectual cultures as departments of anthropology, economics, industrial relations, social history, psychology, and urban [*380] planning could readily fit a single model of reformist empiricism. To contrast sociology of law with sociolegal studies is to commit the category mistake of contrasting attempts to develop macrotheoretical perspectives in one social science with a bureaucratic umbrella-term covering the relations between law and a dozen disciplines. This led Campbell and Wiles to obscure the rich and rather uncoordinated pluralism of what passes for sociolegal studies in the United Kingdom. 155


If this criticism of Campbell and Wiles''s analysis sounds harsh, you may attribute this to the frustration of one who feels that a good case is being spoiled by poor advocacy. For underlying their presentation are some concerns that I share: concern with the poverty of our stock of grand style social theorizing; with the threat that too high a proportion of limited funds for research will be devoted to short-term, officially approved inquiries into narrowly defined problems; even that emphasis on broadening the study of law from within could delay the development of genuine interdisciplinary and multidisciplinary studies. But a persuasive argument incorporating these concerns and interests has to be based, among other things, on a recognition of the complexity of academic law (and of its institutional base, the law school) and the diversity of the other disciplines with which we aspire to build relationships. To deny this pluralism and complexity is naive unrealism.


CONCLUSION


This lecture has concentrated on two main themes: a personal assessment of the contemporary significance of American Legal Realism, and some comments on the difficulties and dangers of making generalizations about any ground of thinkers, texts, or intellectual trends. On the latter theme I have hinted at the outlines of a horse sense approach to intellectual history and textual criticism in jurisprudence. I have done little more than suggest a few robust maxims for avoiding some of the bad habits that still impoverish and obfuscate much juristic discourse. The most important maxims are really rather elementary. Approach any juristic text or group of texts on three levels: the historical, the analytical, and the applied. Do not confuse or conflate the historical and analytical levels of juristic discourse. Do not invoke past thinkers unnecessarily when addressing issues at the analytical level. Whenever [*381] possible anchor discussion of past thinkers in one or more specific texts; classifying ideas and thinkers is notoriously difficult. If you must classify, ask: What is the purpose of this classification? Also ask: Is your -ism really necessary? Is that -ism defined precisely at the analytical level? When criticizin, choose worthwhile targets to attack, and err on the side of generosity in interpreting opponents. Such elementary precepts are by and large enough to undermine the most common bad habits. One does not need a sophisticated critical apparatus, nor need one join some faction within literary criticism, in order to avoid slovenly scholarship and false polemics.


To sum up my personal views on the contemporary significance of American Legal Realism is a less straightforward task. Let me restrict myself to five main points:


First, the Realist Movement is of enormous historical significance and interest, in the United States and beyond, in terms of both particular achievements and a general but extremely elusive kind of "influence." The Realist legacy is still relevant in interpreting many aspects of contemporary legal thought throughout the common law world, but its importance in this respect is sometimes exaggerated. Concern with practical realities in jurisprudence has never been an American monopoly.


Second, Realism and individual Realists are still frequently misrepresented, partly through overgeneralization, but more significantly through comment on and criticism of their alleged answers to questions that were remote from or peripheral to their concerns.


Third, insofar as one can reconstruct an ideal type of a Realist theory of law from ideas and assumptions that fit the general views of leading Realists, the result is neither particularly original nor distinctive. I disagree with Robert Summers''s judgment that pragmatic instrumentalism, as he interprets it, deserves to rank as a fourth great tradition in Western legal theory alongside analytical positivism, natural law, and historical jurisprudence. The most important contributions of Realists to legal theory were of a different kind: they were by and large particular contributions by different individuals that addressed questions other than the classic questions of legal philosophy. Few, if any, of the Realists were accomplished philosophers, and insofar as they shared similar philosophical assumptions these are generally neither original nor interesting.


Fourth, we have outgrown most of the Realist texts. For example, contemporary interdisciplinary work in law and sociology or psychology or economics or anthropology or political theory or linguistics or social history has generally advanced beyond the pioneering attempts of Realists to perform the conduit function of reintegrating law and the social [*382] sciences, a task that in any case has to be tackled afresh in every generation. Similarly, contemporary juristic debates on such topics as judicial discretion, legal reasoning, and legal interpretation make the pre-World War II debates seem rather unsophisticated.


For these reasons I think that relatively few particular Realist texts deserve to be treated as timeless classics. Among these I would include Holmes''s "The Path of the Law," Llewellyn''s "The Normative, the Legal and the Law-Jobs," his historical articles on sales and, with reservations, his "Theory of Legal ''Science,''" perhaps Felix Cohen''s "Transcendental Nonsense and the Functional Approach," and, if it counts as a Realist text, the analytical parts of Wigmore''s Science of Judicial Proof. The Cheyenne Way, although showing its age, is sufficiently rich in fundamental insight to continue deserve attention. That is a personal Great Pieces list for what it is worth. It seems to me that The Bramble Bush, Courts on Trial, and Woe Unto You Lawyers are still fun to read, but on the whole are best treated as period pieces.


Fifth, to say that we have outgrown most Realist texts does not imply that the realist enterprise is complete nor that the Realist Movement ever really fulfilled its promise. That is very far from the case and is much too simple both as history and as an assessment of our present situation. One can look at this at three different levels.


1. Efforts to broaden the study of law from within, to maintain and develop systematic links with other disciplines, and to keep law teaching and legal research in touch with the actual experiences of "real" people who encounter the law (that is, everyone) are perennial aspirations. One of the jobs of jurisprudence is to further these efforts at a general level. It would be a bold person who would claim that any of these aspirations has been satisfactorily realized on a broad front at any time in history in your country or mine. Even if one could point to past successes, this does not get one very far. Dwelling nostalgically on past victories is not the best way of fighting present battles. Many contemporary references to Realism seem to me to be little more than nostalgic. To paraphrase Holmes, one role of intellectual history is to free oneself from the incubus of dead debates.


2. There are many particular ideas, arguments, and suggestive apercus advanced by individual Realists that have yet to be followed through satisfactorily. These include Llewellyn''s notion of "legal technology" (including a systematic theory of the crafts of law and a skills analysis of lawyers'' operations); Frank''s plea to take fact-handling more seriously; 156 possibly Underhill Moore''s most sophisticated thoughts on [*383] empirical method; 157 and Llewellyn''s emphasis on the similarities of law to other human activities and phenomena, in contrast with dwelling on its unique or differentiating characteristics. This is illustrated by the notion of Law-Government as an institution and the related themes that legal skills are in large part basic human skills, that legal problem-solving is a particular form of ordinary problem-solving, and that legal experience is and should be very close to general human experience. This is a selection from my personal list of particular items that represent the unfulfilled promise of Legal Realism.


3. Finally, there is the elusive "spirit of realism" -- what Stevens called "an amorphous state of mind." 158 Some of this can be reduced to specific precepts such as: in order to understand law the study of rules alone is not enough; clarify standpoints; see it fresh, see it as it works; think in terms of total pictures and total processes.


I do not believe that such precepts can sensibly be used to provide the basis for a general theory of law or of a general approach to its study. On the other hand, any approach or theory that ignores or is inconsistent with them is likely to be vulnerable to charges that it fails some elementary tests of adequacy. If being a realist means trying to see law as a practical human activity, trying to use one''s horse sense and, yes, trying to be realistic about it, I have no hesitation about nailing my flag to that mast.


But, it may be objected, what has that to do with theory? Surely any reasonably sensitive and intelligent law teacher could have perceived and responded to the situation regarding the camel in the zoo without needing a lot of theoretical baggage? I disagree. Interpreting the situation, and the problems of teaching and studying law in the specific legal, political, and educational context of the Sudan in the late 1950''s involved a wide range of theoretical tasks, as I have interpreted theory in this lecture. Similar jobs for jurists arise in all jurisdictions. One does not need to be committed to a crassly utilitarian view of theory to set a value on looking critically at the assumptions of the prevailing modes of discourse of one''s immediate environment. In that context and in many others where the nature of academic law has been in issue I have found the legacy of American Legal Realism, and especially of Karl Llewellyn, to be particularly helpful on both the critical and constructive sides. The reason is simple: Realism addressed questions central to these practical [*384] concerns directly and at an appropriate level of generality. On the whole, jurists who addressed the classical questions of legal philosophy in the Anglo-American tradition have tended to be less immediately helpful in these respects. At the very least Realism helped to bridge the divide between abstract philosophizing and "macro-" social theory, and day-to-day practical concerns of participants in particular situations. On this horse sense view of legal theorizing, as a diverse activity that addresses many questions at many levels, it is surely almost always the case that we have too little theory in the law rather than too much. Maybe that is an appropriate note to end a/this/my/some talk about R/realism.


FOOTNOTES:



n1 The text, with its footnotes, is intended to serve as a gloss on my book, Karl Llewellyn and the Realist Movement (1973) [hereinafter KLRM]. This has been reissued in 1985 with a new postscript, but without substantial revision.


Although I have retained the informal style of the original lecture in the text, I have taken the opportunity to include several substantial footnotes dealing with notable developments in interpretations of Realism since 1973. The lecture, however, represents a shift of perspective rather than any substantial changes of mind. It may be useful to indicate here what I consider to be the most significant developments in the study of Realism, in my own views, and in the general intellectual climate since 1970-1971.


There has been a substantial amount of research and commentary on American Legal Realism during this period. By and large this scholarship exhibits a greater sophistication and conern for accurate detail than did much of the earlier literature (although, as is indicted in the text, caricatures and overgeneralized interpretations still abound). A number of detailed studies have added considerably to our knowledge of the lives and work of individual Realists and their contemporaries. Outstanding is the historical research, still in progress, of J.H. Schlegel on Realism and empirical social science. Professor Schlegel''s work already has done much to illuminate the "scientific" wing of Realism. See Schlegel, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buffalo L. Rev. 459 (1979); Schlegel, American Legal Realism and Empirical Social Science. The Singular Case of Underhill Moore, 29 Buffalo L. Rev. 195 (1980) [hereinafter Schlegel, Underhill Moore]. Valuable detailed biographies and critical studies have already appeared in the past 15 years on Brandeis, Douglas, Frank, Frankfurter, Fuller, Pound, and Wigmore among others.


At a more general level I have found the following works particularly helpful in interpeting the context of the Realist movement: L. Friedman, A History of American Law (1973); G. Gilmore, The Ages of American Law (1977) (although I disagree with some aspects of Gilmore''s interpretation); E. A. Purcell, The Crisis of Democratic Theory (1973); R. Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983). Two important recent works are discussed in detail below: Robert S. Summers''s Instrumentalism and American Legal Theory (1982) and Bruce Ackerman''s Reconstructing American Law (1984). Other useful commentaries include A. Hunt, The Sociological Movement in Law (1978); G. White, The American Judicial Tradition (1976); and the interesting series of articles by Simon Verdun-Jones: The Jurisprudence of Jerome N. Frank, 7 Sydney L. Rev. 180 (1974); The Jurisprudence of Karl Llewellyn, 1 Dalhousie L.J. 441 (1974) [hereinafter Verdun-Jones, Jurisprudence of Karl Llewellyn]; Jurisprudence Washed in Cynical Acid: Thurman Arnold and the Psychological Bases of Scientific Jurisprudence, 3 Dalhousie L.J. 470 (1976); Cook, Oliphant and Yntema: The Scientific Wing of American Legal Realism, 5 Dalhousie L.J. 3 (1979) [hereinafter Verdun-Jones, Scientific Wing]. It is for others to judge how far these and the other works cited in this lecture complement, undermine, or supersede the relevant parts of KLRM. On the whole I have yet to be persuaded to change my mind on any major points.


I agree with the strictures, if such they were, that I could have said more about attempts to develop social to develop social scientific approaches in law schools, about the general intellectual and political climate of American thought in the period 1870-1940, and about whether Realist ideas were justifiably perceived as a threat to the Rule of Law, especially during the New Deal. By way of confession and avoidance, I would point out that KLRM was a book about Karl Llewellyn, set in the context of the story of the rise of the Realist Movement, rather than a book about Realism as a whole. Indeed, like this lecture, KLRM could be interpreted as a reaction against tendencies to overgeneralize about Realism. I acknowledged that I was not competent to do justice to Llewellyn''s German writings and his contributions to commercial law. KLRM, supra, at xii.


In retrospect, I think it would have been fruitful to have explored in greater detail Llewellyn''s relationship (at an analytical level) with functionalist thought and its critics and with Max Weber. In recent years, I have examined and written, perhaps at inordinate length, on problems of broadening the study of law from within, on the systematic study of highly transferable legal "skills" such as rule-handling and analysis of evidence, and on a number of other themes that owe much to Llewellyn. But, on the whole, as I indicate in the 1985 postscript of KLRM, I am prepared to stand by what I wrote.


Insofar as this lecture says anything new, this is due less to recent writings about Realism by others or changes of mind on my part than to changes and developments in the intellectual milieu of the Anglo-American law school. As I indicate in the preface to the new edition of KLRM, when that work was being written intellectual biography was seen as an eccentric indulgence for an academic lawyer. Jurisprudence in the United States was muted, and, at least in England, Realism was thought to be discredited. Neither Marxism nor economic analysis of law had many adherents in the law schools in either country. Terms such as "critical legal studies," "sociolegal," "contextual," "structuralism," and "phenomenology" all have gained currency in the law school world since then. The same period has seen major contributions to Legal Theory, broadly conceived, from Dworkin, Finnis, Fuller, MacCormick, Nozick, Rawls, Raz, Summers, Unger and many others, It has been a particularly rich period for the history and theory of contracts. Legal history has blossomed and diversified, and there have been interesting developments in legal anthropology. Particularly pleasing has been the revival of a contextual approach to the history of political thought by Skinner and others. The net effect of these and other developments is to create a different intellectual climate for interpreting and assessing the continuing significance of the Realist legacy. Hence the need for a fresh look.


n2 In this lecture "Realism" and "Realist" refer to people, events, activities, or ideas that are attributable, at least in principle, to some specific historical context or text(s), such as the American Realist Movement as a historical phenomenon or some ideas shared by some or all of its members. The terms "realism" and "realist" are used only where the reference is divorced from any specific historical context: for example, exploration of the value of "realism" as a juristic concept. The distinction is problematic: indeed, the difficulty of constructing a satisfactory convention illustrates rather clearly some of the difficulties surrounding the relationship between the historical and analytical levels of secondary juristic discourse. I cannot claim to have solved the problem. When in doubt, I have adopted a presumption in favor of historical specificity. Accordingly, capital "Rs" predominate.


n3 This theme is developed in Twining, Some Jobs for Jurisprudence, 1974 Brit. J.L. & Soc''y 149 [hereinafter Twining, Some Jobs] and Twining, Evidence and Legal Theory, 47 Mod. L. Rev. 261 (1984) [hereinafter Twining, Evidence].


n4 See, e.g., KLRM, supra note 1, at 210-15.


n5 J. Bentham, An Introduction to the Principles of Morals and Legislation (1789).


n6 J. Stone, Legal System and Lawyers'' Reasonings 16 (1964).


n7 See Twining, Evidence, supra note, 3, at 265-67.


n8 J. Rawls, A Theory of Justice (1972).


n9 W. Morison, John Austin (1982).


n10 Some of these fallacies are indicated in Twining, The Great Juristic Bazaar, 14 J. Soc''y Pub. Tchrs. L. (n.s.) 185 (1978); KLRM, supra note 1, at 70-83, 147-51.


n11 I hope this makes clear that I do not subscribe to the view, seemingly attributed to me by Wilfred Rumble, that no kind of generalization (about Realists or other jurists), however careful and qualified, is possible. Rumble, The Legal Positivism of John Austin and the Realist Movement in American Jurisprudence, 66 Cornell L. Rev. 986, 988 n.12 (1981). My main targets are historical generalizations that are inaccurate or misleading and analytical statements masquerading as historical generalizations.


n12 Some analogies between interpretation of literary and legal texts are at least suggestive. See, e.g., Symposium: Law and Literature, 60 Tex. L. Rev. 373 (1982); J. White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (1984). However, I generally find literature more illuminating than literary criticism. Cf. Miers, Legal Theory and Statutory Interpretation, in Legal Theory and Common Law (W. Twining ed. 1986).


n13 One particularly interesting recent development has taken place in political theory. I refer to the work of scholars such as Quentin Skinner, Richard Tuck, and Stefan Collini in England and J.G.A. Pocock in the United States. These scholars aspire to develop a genuinely historical history of political theory. In pursuing this aim they have not been committed to any rigid methodological doctrine. Skinner and others have produced a number of splendid works that at the very least provide models for historians of legal theory. See, e.g., S. Collini, D. Winch & J. Burrow, That Noble Science of Politics: A Study in Nineteenth-Century Intellectual History (1983); J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1974); Q. Skinner, The Foundations of Modern Political Thought (1978); Q. Skinner, Machiavelli (1981). These new intellectual historians have reacted against bad habits in their own received tradition, particularly intensive analysis of classic texts out of context; overconcentration on particular texts to the neglect of broader historical treatment of ideologies and ideas; the equation of history with the search for origins; and "writing history backward," i.e., imputing the concepts, issues, and concerns of one period to people who thought and wrote in a quite different intellectual environment.


Though the recent scholarship and history of political thought contain some healthy warnings and suggestive models, the world of legal theory is not identical with that of our neighbors in politics. One key difference lies in the relationship between theorizing and action. Departments of Politics are less intimately involved than are law faculties in such worldly affairs as vocational training, consultancy, and active practice. If we had a developed ethnography of knowledge it would surely confirm the hypothesis that the culture of academic law is more participant-oriented than that or political science. Jurisprudence is etymologically and historically, in theory as well as in practice, more intimately connected with prudentia -- craft, skill, and know-how -- than is political theory, Niccolo Machiavelli notwithstanding.


n14 On misposed questions in jurisprudence see Hart, Definition and Theory in Jurisprudence, 70 L.Q. Rev. 37 (1954).


n15 See J. Bentham, supra note 5.


n16 KLRM, supra note 1, at 270-340; Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 Stan. L. Rev. 621 (1975).


n17 P. Singer, Animal Liberation (1975).


n18 See, e.g., Hegel''s Political Philosophy (W. Kaufman ed. 1970).


n19 See text accompanying notes 65-76.


n20 See, e.g., Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 601-02 (1958); cf. Summers, The New Analytical Jurists, 41 N.Y.U. L. Rev. 861, 889 (1966).


n21 Roberto Unger disarmingly acknowledges that his account of Liberal Theory is the analysis of a fiction: "[T]here is no one thinker who accepts the liberal theory, in the form in which I present it." R. Unger, Knowledge and Politics 8 (1975). Rather he is describing and criticizing the "deep structure" of liberal thought. Just as "ideal types" can be devices for describing the social world, so "deep structures" may legitimately be used in discussing ideas. At the level of analysis it is quite reasonable to construct hypothetical answers to questions and then consider them critically -- for the validity or truth of a theory is, as a matter of logic, independent of its authorship or of the motives or other conditions that gave rise to it. There are advantages for readers in the simplicity and brevity of this kind of ahistorical approach. There are also advantages for authors: they need not read texts nor concern themselves with accuracy, fairness, or nuances of interpretation nor with elusive questions about "influence" or the relationship between ideas and actions.


Unger plays fair by giving a reasonably precise elucidation of his ideal type of "liberalism" and by making explicit disclaimers about historical examples; not all recent writers who discuss "liberalism" have been so clear or so sophisticated. In the introductory "kit" to Critical Legal Studies, for instance, after a long extract from Felix Cohen, there appears the following passage:


Once it is realized that the barrier between law and politics depends on the reification of every purpose, every bit of politics, then the barrier disappears. To see it is to destroy it. To introduce a middle term we would not only have to change our notions of law but would also have to completely reshape the liberal picture of the social world. This insight is the source of one of the most fruitful lines of scholarship, both in terms of the projects it suggests and in terms of the perspective it gives on main-stream legal theory.
Critical Legal Studies: A Young Person''s Guide 6 (J. Boyle ed. 1983) (unpublished manuscript) (emphasis added) [hereinafter Critical Legal Studies]. These sentences seem to contain several reifications. Usually these reifications are used for such targets as classical legal thought, liberal legalism, realism, and pluralism. One might deconstruct this passage by saying: "Once it is realized that the barriers between critical legal studies and its standard targets depend on the reification and consequent distortion and oversimplication of both CLS and of every one of its alleged targets, the barriers disappear."


n22 The law-jobs theory was a central element of Llewellyn''s legal thought. It is grounded in the proposition that human groups have certain needs that must be met for the group to survive or pursue common goals. These needs are a source of actual or potential conflict. As conflict poses a threat to group survival, the prevention and resolution of conflict are essential for group survival and effectiveness. E.g., K. Llewellyn & E. Hoebel, The Cheyenne Way 273-309 (1941); Llewellyn, The Normative, the Legal and the Law-Jobs: The Problem of Juristic Method, 49 Yale L.J. 1355 (1940) [hereinafter Llewellyn, Law-Jobs]; Llewellyn, Law and the Social Sciences -- Especially Sociology, 62 Harv. L. Rev. 1286 (1949) [hereinafter Llewellyn, Law and the Social Sciences]. See also KLRM, supra note 1, at 175-84.


n23 R. Summers, supra note 1.


n24 Summers''s Instrumentalism and American Legal Theory is the most important work relating to Realism published in the past 10 years. It is scholarly, clear, and contains much that is illuminating. I disagree with Summers on a number of points of detail, but find much of what he has to say on specifics unexceptionable. Here I wish to concentrate mainly on his conception of his enterprise.


Summers''s primary objective is to reconstruct a general theory of law from the work of leading American jurists in the period 1890-1940 and to present this as "a meaningful and distinctive type of theory about law and its use." Summers, supra note 1, at 37. He concludes that this theory, which underlies the work of Holmes, Dewey, and Pound, as well as leading Realists such as Llewellyn, Frank, and Cook, represents a distinct American tradition alongside analytical positivism, natural law philosophy, and historical jurisprudence. Its distinctiveness lies in the facts that "this fourth tradition frontally addresses the instrumental and pragmatic facets of law," id. at 19, but unlike the other three traditions "the best is yet to be," id. at 281. In other words, the program of pragmatic instrumentalism represents a largely unfulfilled promise.


Summers has a clear and sophisticated conception of the nature of his project. He is concerned with the "general directions of thought" and the similarities of the thinkers he considers rather than with their unique specific contributions. Id. at 13. He acknowledges that "for many purposes the differences are more important than the similarities," and that some of the pragmatic instrumentalists'' most important contributions were specific rather than general. Id. Unlike some commentators, he has read most of the classic texts carefully and discusses individual thinkers in detail, if selectively; but he is emphatic that the book "is not primarily a historical study." Id. at 12 (emphasis in original).


Summers''s "reconstruction" is closer to the texts and less explicitly ahistorical than Unger''s interpretation of the deep structure of Liberalism. For both authors the approach seems to be prompted by two concerns: first, to give a clear and uncluttered account of a general theory; and second, to distance themselves from the theory as stated in order to be able to accept and reject it selectively. Unger is straining for a form of "protoliberalism"; Summers, influenced by Hart and Fuller as well as the pragmatic instrumentalists, is reaching for a theory that will "take the best in each of the four great traditions." Id. at 14.


The advantage of Summers''s concession to history is that his account of pragmatic instrumentalism is richer `s\vl VE`s\vl Ver''s account of liberalism. The weakness of Summers''s work is that it is in certain respects misleading if taken as history because he has provided an answer to the question: "[I]f the following [eight] theorists had had a developed general theory of law, what would it have looked like?" His answer is, it seems to me, a combination of a utilitarian theory of value, a positivistic view of law as a means of furthering utilitarian ends, a concern with detailed empirical investigation of the operation of the law in action (especially, but not exclusively, in relation to its effects), and a particular concern with the systematic study of means, with legal technology worthy of attention in itself.


Let us leave aside the question whether the reconstruction can be interpreted as an Americanized, updated version of Bentham''s program -- which, if this is the case, would rather undermine the claim that it deserves to be seen as a distinctive fourth tradition. Rather, let us look at the consequences of trying to turn American pragmatic foxes into abstract theoretical hedgehogs. See id. at 13. The main weakness is that this can only be done by very largely ignoring the specific concerns of the individuals involved and their distinctive contributions, most of which were related to these concerns. It also means that, by and large, the most sophisticated versions of their ideas tend to be ignored or treated as deviations or glosses, and that statements that make sense at a fairly low level of generality (such as Holmes''s and Frank''s ideas about prediction) are elevated to a higher level of abstraction and are treated as if they are general theories of law. Thus Summers presents us with a chapter devoted to an exposition and critique of the prediction theory of law and "predictivism" as a theory of legal validity. See id. at 116-35. There is room for disagreement whether Holmes ever intended his famous statements about prediction and prophecy to have the status of a general theory of law. But today it is surely misguided to concentrate on reheating criticism of this most vulnerable interpretation of rash statements rather than exploring the implications of the lower order truism that predicting certain kinds of events and decisions is one of the main tasks of various participants in legal processes.


Defining law in terms of prediction is so thoroughly discredited as to be hardly worth further discussion: examining the nature, difficulties, and significance of prediction in a middle order theory of "lawyering" is still a relatively neglected theoretical task. Summers''s approach results in a failure to discuss Frank''s fact-skepticism (at either the level of philosophy or middle order theory), and Llewellyn''s law-jobs theory (which surely must form at least part of his general theory of law); Summers only marginally deals with Cook''s and Moore''s notions of "science."


The debate between Summers and Michael Moore about some of these issues in Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 Cornell L. Rev. 988 (1984) and Summers, On Identifying and Reconstructing a General Legal Theory -- Some Thoughts Prompted by Professor Moore''s Critique, 69 Cornell L. Rev. 1014 (1984), came to my attention too late for extended comment here.


n25 B. Ackerman, supra note 1, at 18-19 (1984).


n26 H.L.A. Hart, The Concept of Law 121-50 (1961).


n27 Dickinson, Legal Rules: Their Function in the Process of Decision, 79 U. Pa. L. Rev. 833 (1931) [hereinafter Dickinson, Function]; Dickinson, Legal Rules: Their Application and Elaboration, 79 U. Pa. L. Rev. 1052 (1931) [hereinafter Dickinson, Application].


n28 On the difficulty of setting up precise criteria, see Rumble, supra note 11, at 987-88. Our only point of difference is that if one wishes to make any nontrivial generalizations about Realists it is particularly dangerous to follow Llewellyn''s list of 20 Realists, who were selected for their diversity. See KLRM, supra note 1, at 73-77.


n29 The year 1870 marks Langdell''s appointment to Harvard and the start of his reforms, against which there was an almost immediate reaction. Frank died in 1958, Llewellyn in 1962.


n30 On the historical reasons for treating Gray as a forerunner rather than as a member of the Realist Movement, see KLRM, supra note 1, at 20-22. For a different view, see N. MacCormick, A Political Frontier of Jurisprudence: John Chipman Gray on the State, 66 Cornell L. Rev. 973 (1981).


n31 If it is clear who exactly is being referred to, little hangs on classification as a "Realist." See KLRM, supra note 1, at 73-83. Wigmore is mentioned here because his Principles of Judicial Proof represents a pioneering attempt to rethink a field of law in broader and more realistic terms than had been traditional. See W. Twining, Theories of Evidence: Bentham and Wigmore (1985).


In conversation in 1980 or 1981, the late Soia Mentschikoff suggested to me that the 1928 Columbia crisis over the appointment of a new law school dean could, without much distortion, be interpreted as an attempt to "colonize" an eastern law school by people who had been affected by the intellectual milieu of the University of Chicago. The four leading scientists -- Cook, Moore, Oliphant, and Marshall -- had all been associated with the University of Chicago. Some of their key ideas were recognizably part of the Chicago ethos of the time: a community of scholars, the application of scientific method to the social sciences (a theme associated especially with the political scientists Bentley, Merriam, and later Lasswell), and the linking of law with economics and business studies. It could also be pointed out that the reaction against colonization of the Chicago Law School by Harvard (in the person of Joseph Beale, see Ellsworth, Law on the Midway 68-77 (1977)), had taken a different turn from the Yale-Columbia developments. It would be beyond the scope of the present paper to explore these differences in detail, but the following tentative hypotheses may be ventured:


1. The Chicago brand of realism was less practitioner-oriented than the Yale-Columbia brands.


2. At Chicago there was emphasis on law-government (especially in the person of Ernst Freund, see E. Freund, Standards of American Legislation (1917) (F. Allen ed. 1965); K. Llewellyn, Jurisprudence: Realism in Theory and Practice 378-79 (1962)) and on social reform; Yale was closer to the private law orientation of Harvard, but wanted to improve on it; Columbia was somewhere in between. This is reflected in different degrees of emphasis on fact-research as a basis for social reform (Chicago), and a more realistic understanding of what factors were influencing judges in deciding appellate cases (Yale).


3. Systematic empirical research into legal process and serious interdisciplinary cooperation between lawyers and sociologists are a relatively late gloss, without deep roots in any of these three law schools, at least before the late 1920''s -- except that the "scientism" of the Chicago school of politics may have had some influence.


n32 Llewellyn and Frank are the two figures most prominently associated with "Realism." Cook was selected because he both represents the "scientific wing" and was associated with Yale, Columbia, and Johns Hopkins at important moments in the history of the Realist Movement. Summers also selects these three for special attention. R. Summers, supra note 1, at 36-37.


n33 For specific examples of false or misleading generalizations, some of which are still current, see KLRM, supra note 1, at 30-31.


n34 R. Summers, supra note 1, at 11-14, 268-81.


n35 Summers presents a penetrating critique of "robust predictivism" as a theory of legal validity. R. Summers, supra note 1, at 116-35. His argument seems to be analytically sound, but historically dubious: was Holmes concerned with legal validity when he spoke of predictions and prophecies? See KLRM, supra note 1, passim; Twining, The Bad Man Revisited, 58 Cornell L. Rev. 275, 284-63 (1973).


n36 See Llewellyn, Law-Jobs, supra note 22; KLRM, supra note 1, at 175-84 (discussing The Cheyenne Way and Law in Our Society); Twining, Law and Anthropology: A Case Study in Inter-disciplinary Collaboration, 7 L. & Soc''y Rev. 561, 569-72 (1973) (discussing the differences between Llewellyn and Hoebel on definitions of law).


n37 For my views on Frank, see Twining, Some Scepticism About Some Scepticisms I, 11 J.L. & Soc''y 137, 159-61 (1984) [hereinafter Twining, Some Scepticism I]; Biographical Dictionary of the Common Law 190-93 (A.W.B. Simpson ed. 1984).


n38 Twining, Some Scepticism I, supra note 37, at 157-61.


n39 For Llewellyn''s views on factfinding, see e.g., K. Llewellyn, supra note 31, at 431-50; K. Llewellyn, The Common Law Tradition 18, 359-60 (1960) [hereinafter K. Llewellyn, Common Law Tradition]; K. Llewellyn, Sacco and Vanzetti v. The Commonwealth: An Indictment of the Workings of Our Judicial Institutions (1928-35) Karl Llewellyn Papers, Chicago (unfinished, unpublished manuscript).


n40 See W. Cook, Cases and Materials on Equity (3d ed. 1940); W. Cook, My Philosophy of Law 49, 66 (A. Kocoureck ed. 1941) (citing Cook, Scientific Method and the Law, 13 A.B.A.J. 303 (1927)) [hereinafter W. Cook, My Philosophy of Law]; W. Cook, The Logical and Legal Bases of the Conflict of Laws (1942) [hereinafter W. Cook, Conflict of Laws]; Cook, Book Review, 31 Colum. L. Rev. 725 (1931) (reviewing M. Cohen, Reason and Nature (1931)); see also KLRM, supra note 1, at 35-42; Verdun-Jones, Scientific Wing, supra note 1. For his views on scientific method Cook drew heavily on an article by Charles W. Morris in 1 International Encyclopedia of Unified Science (1920) and, rather simplistically, on Dewey''s writings.


n41 A more careful assessment of Cook must await the completion of Professor Schlegel''s research. See note 1 supra.


n42 See, e.g., J. Frank, Courts on Trial 190-221, 330-45 (1949).


n43 See, e.g., Schubert, The Future of Public Law, 34 Geo. Wash. L. Rev. 593, 601 (1966).


n44 See KLRM, supra note 1, at 188-96. Llewellyn''s article The Theory of Legal "Science," 20 N.C.L. Rev. 1 (1941), still repays careful reading.


n45 See, e.g., Llewellyn, On What Makes Legal Research Worthwhile, 8 J. Legal Educ. 399 (1956).


n46 See, e.g., Verdun-Jones, Jurisprudence of Karl Llewellyn, supra note 1.


n47 Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1 (1934); Llewellyn, Law and the Social Sciences, supra note 22. See also KLRM, supra note 1, at 176-77; Hamilton, "Institution," in 8 Encyclopedia Soc. Sci. 84 (1932). In his later writings Llewellyn adopted the notion of "law-government" (or "law-and-government") as the organizing concept of the law-jobs theory, because law and government are primarily concerned with the same basic "job of producing and maintaining the groupness of a group." K. Llewellyn, supra note 31, at 357, discussed in KLRM, supra note 1, at 179-80.


n48 See Twining, Evidence, supra note 3, at 261, 264-65.


n49 See, e.g., K. Llewellyn, supra note 31, at 3-6; Llewellyn, Law-Jobs, supra note 22. Llewellyn''s concern with empathetic understanding of the internal point of view of officials and other participants arguably has close affinities with Weber''s Verstehen, but he never developed this very far. Note, however, his posthumously published work Recht, Rechtsleben und Gesellschaft (M. Rehbinder ed. 1977) (outlining Llewellyn''s debt to Weber and his differences with Ehrlich); see also KLRM, supra note 1, at 418 n.90.


n50 Professor Schlegel has suggested to me that this exaggerates the differences between leading Realists and does not allow for a tacit division of labor between individuals who were pursuing very similar goals. A "group portrait" that substituted the "greatest uncommon denominator" for the lowest common denominator would bring out the effectiveness of their critique of formalism and the impressive range of the sum total of their "constructive" achievements (private communication, Feb., 1985). The difference between us is one of emphasis. In this paper, I have been concerned to pinpoint the difficulties of generalizing about Realism; a brief sketch for such a group portrait can be found in KLRM, supra note 1, at 375-87. We are in agreement that the overall contribution of Realists on the "constructive" side was important -- hence the rejection of the "negative" image. See notes 122-26 and accompanying text infra.


n51 Nevertheless, both Llewellyn and Frank wrote extensively about Natural Law and Justice. See, e.g., J. Frank, supra note 42, at 346-73; 346 n.1; K. Llewellyn, supra note 31, at 111-58; KLRM, supra note 1, passim.


n52 See, e.g., Heffernan, Two Stages of Karl Llewellyn''s Thought, 11 Int''l J. Soc. L. 134 (1983).


n53 Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble Dream, 11 Ga. L. Rev. 969 (1977).


n54 See, e.g., Tushnet, Post-Realist Legal Scholarship, 15 J. Soc''y Pub. Tchrs. L. (n.s.) 20, 21 (1980):


Imperfectly and with varying degrees of clarity, the realists developed a critique of classical legal analysis that led almost inexorably, and in general quite contrary to their own intentions, to what I have called legal nihilism . . . . The realist critique of rules was simple and deep. It held that law, which purported to be a set of rules that determined either behaviour, or more narrowly, outcomes in litigated cases, was in fact completely indeterminate.
See also Critical Legal Studies, supra note 21, at 3-5; Mensch, The History of Mainstream Legal Thought, in The Politics of Law 18 (D. Kairys ed. 1982). It is fair to say that Mensch, Kennedy and others are careful to qualify their generalizations about Realism and to emphasize the implications of "the Realist critique."


n55 B. Ackerman, supra note 1. Ackerman sets his argument in the context of an activist state that seems to be approximately equivalent to a mixed economy. His thesis is that "after fifty years of arguing out the particular meanings of bits and pieces of activist law, lawyers can begin to see larger patterns in the professional effort to make sense of our existing legal situation." Id. at 2. He discerns the birth of a form of legal discourse, Legal Constructivism, that is "premised on a distinctive set of attitudes toward fact and value." Id. at 3. Ackerman''s new "language of power" incorporats a nonutilitarian approach to problems of distributive justice, along the lines advocated by Rawls and Dworkin, as well as an overt use of methods of economic analysis (represented by the welfare economics of Amartya Sen and Kenneth Arrow, rather than the more brutal version of economic analysis associated with Judge Richard Posner).


Developing his argument both as an interpretation of current trends and as a commendation of Constructivism, Ackerman reinterprets the historical significance of Legal Realism:


During the 1930s, the Realists presented themselves, and were generally perceived, as the profession''s enfants terribles -- debunking cherished legal myths with devastating effect. This undeniable aspect of Realism, however, should not blind us to the paradoxical character of its ultimate contribution to legal discourse. With a half-century''s hindsight Realism has come to seem profoundly conservative, not radically iconoclastic. Rather than transforming traditional legal discourse, the Realism critique allowed the profession to survive the New Deal without reconstructing its basic conceptual equipment. Rather than encouraging lawyers to confront the distinctive challenges posed by the rise of an activist state, Realists permitted the profession to evade them in good conscience.
Id. at 4-5.


The realists encouraged a discourse that was intensely particularistic in dealing with facts and intuitive, rather than rational, in dealing with values. In contrast, the kind of legal analysis appropriate to a modern liberal activist state requires, in part, a broader and more systematic analysis of factual situations (as exemplified by economic analysis of products liability or landlord-tenant relations) and a systematic rational analysis of value choices on the basis of principle. In this view, going beyond Llewellyn''s "situation sense" involves depicting the social context of the facts of a particular dispute as part of the statement of the facts in a less intuitive and particularistic way. See id. at 93.


Ackerman''s notion of "constructivism" as a new "paradigm" for argument about questions about law (and, perhaps, more generally for academic legal analysis) deserves serious consideration as an intriguing attempt to synthesize deontological argument with economic analysis. Whether it is an appropriate model for such discourse in all or most kinds of cases is clearly debatable. My concern here is with Ackerman''s bold and rather freewheeling interpretation of "Realism." There clearly is a strong core of truth in the claim that there were particularistic and intuitionist strains in Realist approaches to legal argument and judicial decisions on questions of law. It may be pedantic to point out that the emphasis on narrower categories was a reaction to a legacy of abstract categries in private law (such as "title" in sales, and "master and servant" in torts) and that generalizing was also part of Llewellyn''s program -- for example, his development of the categories of secured transactions and unconscionability in the Uniform Commercial Code. It may also be pedantic to point out that what Ackerman refers to as "the situation sense in which the Realists took so much pride," id. at 93 (emphasis added), first given prominence in 1960 in The Common Law Tradition, created almost universal puzzlement among sympathizers and critics alike and is based on the idea of the notion of a type of situation. That is, stating the particular facts in general terms, with "the fireside equities" phased out. Llewellyn claimed that the Grand Style, of which situation sense forms a part, is more rational than the Formal Style; it is not based on individual intuition, but on an appeal to shared perceptions and values. The main difference between Ackerman''s model of constructivism and Llewellyn''s Grand Style is that the former appeals to more intellectually rigorous and abstracts modes of analysis of a particular kind that is essentially contested. On this interpretation, constructivism is an intellectualization and formalization of some loose precepts rather than a substitute for "a shallow Realism that has outlived its time." Id. at 110.


There are, however, more fundamental differences. Ackerman''s account of constructivism as a model for legal discourse in general rather than for argument about disputed questions of law leaves out some of Llewellyn''s and Frank''s central concerns: the institutional realities of the law in action; total processes rather than atypical stages of processes in atypical cases; the interaction between the general and the particular; a firm awareness of the limits of rationality and the irreducible personal element in law; and, in the case of Frank, problems of ascertaining the truth about particular past events rather than the more generalized kind of factfinding as a basis for policy and lawmaking that concerns Ackerman.


n56 See, e.g., T. Benditt, Law as Rule and Principle 1-21 (1978); R. Dworkin, Taking Rights Seriously 3-7 (1977).


n57 J. Frank, supra note 42, at 62-79; J. Frank, Law and the Modern Mind vi-xxvii (1949).


n58 See, e.g., J. Frank, supra note 42, at 165-85; see also Twining, Some Scepticism I, supra note 37, at 158-61.


n59 See W. Cook, My Philosophy of Law, supra note 40.


n60 Much of the early work of the Johns Hopkins Institute, of which Cook was the first director, was devoted to judicial statistics. See KLRM, supra note 1, at 60-67, 403-04 & n.20.


n61 This runs counter to the tendency of many American jurists to place adjudication at the center of Jurisprudence. Contemporary adherents of this view include Ronald Dworkin, who acknowledges, however, that a general theory of law, in its normative aspects, "must have a theory of legislation, of adjudication and of compliance." R. Dworkin, supra note 56, at vii; cf. Moore, supra note 24, at 1013. The notion that judicial decisions cast a long shadow but are not necessarily the fulcrum of all legal processes is discussed in Twining, Some Scepticism About Some Scepticisms II, 11 J. Law & Soc''y 285, 298-300 (1984). Cf. Summers, supra note 1, at 1027-29 (effectively criticizing Moore''s "concentration on adjudication at the core of legal theory").


n62 K. Llewellyn, Common Law Tradition, supra note 39. Compare Heffernan, supra note 52, with KLRM, supra note 1, at 426 & n.12.


n63 See R. Dworkin, supra note 56, at 3-4.


n64 Tushnet, supra note 54, at 21; Critical Legal Studies, supra note 21, at 4.


n65 See KLRM, supra note 1, at 80-81, 409-11 for references. Cf. J. Paul, The Legal Realism of Jerome N. Frank 129-42 (1959), which has a useful discussion of Frank''s critics. A classic example of this view is Mechem, The Jurisprudence of Despair, 21 Iowa L. Rev. 669 (1936). Thurman Arnold seems to have taken this negative view restrospctively when he described Realism as "a good medicine for a sick and troubled society . . . [but] despite its liberating virtues . . . not a sustaining food for a stable civilization." Arnold, Judge Jerome Frank, 24 U. Chi. L. Rev. 633, 634 (1957).


For contrary views see, e.g., R. Summers, supra note 1, passim; W. Twining, The Karl Llewellyn Papers 5-6 (1968); KLRM, supra note 1, at 80-81; Note, Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669, 1674-76 (1982). See also Schlegel, Underhill Moore, supra note 1, at 196.


n66 See Tushnet, supra note 54; Critical Legal Studies, supra note 21.


n67 See generally, KLRM, supra note 1 passim; Twining, Some Scepticism I, supra note 37, at 142-43.


n68 The Bramble Bush (1931) was probably the most common source of the view that the early Llewellyn was a "negative" critic. On why this is a misinterpretation see KLRM, supra note 1, at 140-52. Llewellyn could, however, be a harsh critic. See Nelson, Standards of Criticism, 60 Tex. L. Rev. 447, 457-61 (1982) (discussing Llewellyn''s treatment of Richard Morris''s Studies in the History of American Law (1930) in Llewellyn, Book Review, 31 Colum. L. Rev. 729 (1931)).


n69 See K. Llewellyn, Jurisprudence, supra note 31, at 53 n.35, 103; KLRM, supra note 1, at 37-38, 40.


n70 See E. Cahn, Confronting Injustice 269 (1967); Cahn, Jerome Frank''s Fact-Skepticism and our Future, 66 Yale L.J. 824, 828 (1957).


n71 See Twining, Some Scepticism I, supra note 37, at 157-61.


n72 See, e.g., J. Frank, supra note 42, passim (on Llewellyn); id. at 316-25 (on Cook); K. Llewellyn, supra note 31, at 101-10, passim (same); K. Llewellyn, Common Law Tradition, supra note 39, at 104 n.135, 220 n.214 (on Frank); Llewellyn, supra note 45, at 400-01 (on Cook); Lecture by Karl Llewellyn 16-18 (May 9, 1955) (unpublished manuscript); K. Llewellyn, Law in Our Society 8, 34 (unpublished teaching materials 1958) [hereinafter Llewellyn, Law in Our Society]. I have not located any substantial discussion by Cook of the work of Llewellyn or Frank. This is not entirely surprising in that he belonged to an earlier generation and was concentrating on rather different issues in his later years.


n73 See Llewellyn, supra note 45, at 399-401.


n74 In his preface to The Logical and Legal Bases of the Conflict of Laws, Cook claims that his attack on the theories of Story, Dicey, Beale, and the Restatement was a "constructive" effort analogous to clearing a garden of weeds. W. Cook, Conflict of Laws, supra note 40, at ix (1942). His main thrust was directed toward over-broad rules; he argued for flexible guidelines based on narrower categories. Cf. Llewellyn, supra note 31, at 56-57 (No. 7 of Llewellyn''s common points of departure); KLRM, supra note 1, at 97-98.


n75 For generally balanced assessments of Frank''s achievements, see J. Paul, supra note 65; W. Volkomer, The Passionate Liberal: The Political and Legal Ideas of Jerome Frank (1970).


n76 See KLRM, supra note 1, at 375-87.


n77 For similar views of the constructive achievements of the Realists, see, e.g., R. Summers, supra note 1, at 278-81; Schlegel, Underhill Moore, supra note 1, at 195-99.


n78 This was the self-image of both Frank and Llewellyn, encapsulated in Frank''s claim that they were "constructive skeptics." See J. Frank, Law and the Modern Mind vii (1949 ed.).


n79 See text accompanying notes 108-10 infra.


n80 I advanced this thesis in KLRM and need not repeat it here. See KLRM, supra note 1, at 70-83. I reformulated this view with respect to the United Kingdom in Twining, Law and Social Science: The Method of Detail, New Soc''y 758, 759-61 (1974).


n81 Few commentators discuss Realism solely in these terms. The best account of the political background of the Realist Movement is E. A. Purcell, supra note 1. See also L. Friedman, supra note 1, at 567-94; R. Summers, supra note 1.


n82 Pound, The Call for a Realist Jurisprudence, 44 Harv. L. Rev. 697 (1931). The background to Pound''s hostility to Realism is explored in D. Wigdor, Roscoe Pound 207-32, 249-81 (1974).


n83 See, e.g., Dickinson, Function, supra note 27; Applications, supra note 27. A more positive work is Dickinson''s excellent Administrative Justice and the Supremacy of Law (1927), which preceded the debate between Llewellyn and Pound. See id. at 32-39, 105-56.


n84 See, e.g., Fuller, American Legal Realism, 82 U. Pa. L. Rev. 82 (1934); see generally R. Summers, Lon Fuller 17-41 (1984).


n85 Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). See also KLRM, supra note 1, at 456 n.247.


n86 R. Dworkin, supra note 56.


n87 I was invited to explore the connections between the Realist Movement and Critical Legal Studies (CLS). This is clearly too large a subject for this occasion, even if one confines oneself to the juristic significance of the latter. I was tempted at least to comment on claims that members of CLS are true Daughters of the American Realist Revolution, but on examination, this also turned out to be a far more complex matter than it seemed at first sight. There are, however, a few themes in this paper that may have a bearing on such claims. I have already alluded to CLS tendencies to reification, the parochialism and isolationist tendencies of much American jurisprudence, and the relative deprivation of CLS scholars that results from the lack of a homogeneous orthodoxy, analogous to the myth of the slot-machine theory or the dominant legend of Langdellism, for them to react against. Let me here drop a few hints concerning historical parallels, perceived or claimed "influences," textual affinities, and similar tendencies toward self-interpretation and introspection.
1. Historical "Parallels"


Despite some obvious similarities (American scholar-teachers of law expressing in iconoclastic terms their dissatisfactions with prevailing orthodoxies), there are too many differences in the contexts (including the political and general intellectual climates, as well as developments in law schools, legal education, and other relevant disciplines), in the patterns of development (Realism''s development was slow and spasmodic, whereas CLS''s has been rapid and more coordinated), and in important triggering events to suggest much promise in the dubious enterprise of looking for historical parallels. One also wonders whether Realism and CLS are both "movements" in the same sense (CLS appears to be much more institutionalized, coordinated, clublike, and activist) and whether the complex differences in the degree and nature of their "movements," political motivation and commitment do not make the contrasts more interesting than the parallels, insofar as generalization is meaningful in either direction.
2. Realist "Influences"


Critical Legal Studies, supra note 21, includes an amusing "Identikit Paragraph from any CLS article" that adopts the central tenets of Realism as the starting point for CLS. This caricature of CLS does seem to fit quite a few CLS texts. It characterizes Realism as emphasizing the "vacuousness, circularity and medieval silliness of legal reasoning and . . . the role of policy rather than rules in judicial decisions." Such an interpretation is close to the "nightmare" image of Realism as nihilistic rule-skepticism and is at best exaggerated and highly selective. This revival of what one had hoped was discredited as a historical and textual interpretation of most writings of core Realists is mildly irritating. Whether such claims are intended to or in fact do serve as self-legitimating devices, as G. Edward White suggests, see White, The Inevitability of Critical Legal Studies, 36 Stan. L. Rev. 649, 650-51 (1984), or whether they are best treated as examples of nostalgia or sloppy scholarship is open to debate. One nevertheless wonders whether they may not serve to obfuscate the nature of various CLS enterprises for the participants, even if they do not fool many outsiders. It may, however, be worth noting one possible historical lesson of the Realist story: the enterprises of those Realists (such as Llewellyn and Frank) who consistently aspired to be accepted as "real lawyers" (insiders) were far more influential in fact than the efforts of those who aspired only to be committed scholars and thereby condemned themselves to be outsiders ("`s\vl VE`s\vl Vd think that, given the economic base and social functions of nearly all law schools, if most efforts to transform them into serious centers of scholarship have failed, then surely the prospects for making them bases for genuinely radical political thought or action are rather slight.
3. Textual Affinities


One theme of this lecture has been that, at the analytical level, generalizations about Realist texts are dangerous not only because they tend to be inaccurate but also because much of the unfulfilled promise of Legal Realism is to be found in particular, often unique, contributions of individuals. The moral is, as always, to start with particular texts and to be skeptical of interpretations of general intellectual trends.


Based on a comparison of Realist and CLS texts, my strong impression is that there are remarkably few affinities or correspondences between familiar Realist texts and the more impressive contributions of such individual CLS scholars as Roberto Unger, Duncan Kennedy (The Structure of Blackstone''s Commentaries, 28 Buffalo L. Rev. 205 (1979)), Morton Horwitz (The Transformation of American Law, 1780-1860 (1977)), or Robert Gordon (Historicism in Legal Scholarship, 90 Yale L.J. 1017 (1981) (despite his acknowledged debt to Willard Hurst)). This disparity can be taken as a compliment to the CLS scholars'' originality, but the enterprises are also different. Di`s\vl VE`s\vl Vevelop a major social theory, apply techniques borrowed from literary criticism and linguistics to the interpretation of legal texts, or spawn a genuinely critical mode of legal historiography? Conversel, are we ever likely to get "critical" analogues to the Uniform Commercial Code, The Cheyenne Way, the Johns Hopkins Institute or even Frank''s Courts on Trial? My conclusion is that neither the major achievements nor the examples of unfulfilled promise of Realist writings and ideas have very much to offer to CLS enterprises.
4. Self-Interpretation and Introspection


I have suggested that the leading internal interpreters of Realism, Llewellyn and Frank, tended to obfuscate the nature of their enterprises by glossing over significant differences and disagreements (Llewellyn), by introducing spurious distinctions (Frank''s dichotomy between rule-skeptics and fact-skeptics), and by loose talk ("Realism is not a philosophy, but a technology."). K. Llewellyn, Common Law Tradition, supra note 39, at 509-10 (emphasis omitted). Some of the CLS interpreters from within (for example, Kennedy and Gordon) have been refreshingly open about internal differences and disagreements. Recent developments suggest a possible trend toward yet another convergence with literary criticism: a kilo of commentary for every gram of original work.


n88 This is best treated as a hypothesis requiring further research and analysis of the political background, if any, of the relevant writings of, among others, Holmes, Gray, Bingham, Corbin, Cook, Hohfeld, Oliphant, and the young Llewellyn. For a perceptive critique of my failure to deal adequately with the broader historical context of the Realist controversy, see Purcell, Book Review, 19 Am. J. Legal Hist. 240 (1975) (review of KLRM).


n89 Clearly political interpretations fit the writings of men like Arnold, Berle, Douglas, Frank, and Rodell during the period after about 1925. But the Progressive Movement and the concerns of the New Deal are widely regarded as starting much earlier.


n90 See W. Volkomer, supra note 75.


n91 On Llewellyn''s political views, see KLRM, supra note 1, at 87-93, 124-25, 418-19, 479-84.


n92 But see Cook, The Privileges of Labor Unions in the Struggle for Life, 27 Yale L.J. 779 (1918); Cook, Book Review, New Republic, Aug. 30, 1922, at 22; Cook, The American Law Institute, New Republic, Mar. 21, 1923, at 87. I am grateful to Professor Schlegel for these references.


n93 For interpretations and implications of this experience, see W. Twining, Academic Law and Legal Development (1976) and W. Twining, The Camel in The Zoo (Dec. 1981) (unpublished lecture delivered at University of Khartoum).


n94 R. Stevens, supra note 1, at 134.


n95 For some reasons why "Legal Realism" may be misleading as a label even for core Realists, see R. Summers, supra note 1, at 36-37.


n96 See KLRM, supra note 1, at 522 & n.7.


n97 N. MacCormick, Address at W. G. Hart Workshop on Legal Theory (July 1984) (cited with permission). An introspective critical legal scholar might be expected to chant:


"Mirror, mirror on the wall,


Am I really critical?"


n98 E.g., Hart, supra note 20; Summers, supra note 20.


n99 On whether The Brethren deserves to be treated as a product of Realism, see Twining, Book Review, 44 Mod. L. Rev. 739 (1981) (reviewing B. Woodward & S. Armstrong, The Brethren (1979)). Cf. G. Anastaplo, Comment, Legal Realism, the New Journalism, and The Brethren, 1983 Duke L.J. 1045. Other candidates for recognition as prototypical realists include Biron in Love''s Labour''s Lost, Brother William in Umberto Eco''s The Name of the Rose, and Louis Agassiz as described in G. Highet, The Art of Teaching 241-45 (1950).


n100 See Twining, Some Scepticisms I, supra note 37, passim.


n101 See R. Summers, supra note 1, at 20-37.


n102 The phrase "broadening the study of law from within" was for a time associated with the ethos of the Warwick Law School and its first chairman, Professor Geoffrey Wilson. See Folsom & Roberts, The Warwick Story: Being Led Down the Contextual Path of The Law, 30 J. Legal Educ. 166 (1979); Twining, Some Jobs, supra note 3, at 167-70.


n103 See, e.g., G. Fletcher, Rethinking Criminal Law (1978); H. Gross, A Theory of Criminal Justice (1979); MacNeil, The Many Futures of Contracts, 47 S. Cal. L. Rev. 691 (1974); Twining, Evidence, supra note 3. See also Legal Theory and Common Law (W. Twining ed.) (forthcoming 1986).


n104 This topic is explored at greater length in KLRM, supra note 1, at 70-83, 517-23.


n105 30 Colum. L. Rev. 431 (1930).


n106 44 Harv. L. Rev. 697 (1931).


n107 44 Harv. L. Rev. 1222 (1931).


n108 See KLRM, supra note 1, at 56-83.


n109 See J. Frank, supra note 42, at 74. Frank listed Leon Green, Max Radin, Thurman Arnold, William O. Douglas, and, tentatively, E. M. Morgan as fact-skeptics. It is debatable whether any of these, except Leon Green, completely fit Frank''s account of "fact-skepticism," which is a statement of his own views. Rumble confines his useful discussion of fact-skepticism almost entirely to Frank and his disciple, Edmond Cahn. W. Rumble, American Legal Realism 38, 107-36 (1968).


n110 K. Llewellyn, Common Law Tradition, supra note 39, at 509-10.


n111 44 Harv. L. Rev. at 1235-38.


n112 On Llewellyn''s early attempts to develop a general sociology of law see KLRM, supra note 1, at 170-71. Especially significant in this respect are his "Mechanisms of Group Control" (unpublished paper on file at the University of Chicago Law School) started in 1927, and Recht, Rechtsleben und Gesellschaft, written mainly in 1932 and published in 1977.


n113 K. Llewellyn, Common Law Tradition, supra note 39, at 508-21.


n114 K. Llewellyn, Law in Our Society, supra note 72, reprinted, in part, in KLRM, supra note 1, at 497-516; see also KLRM, supra note 1, at 170-202.


n115 K. Llewellyn, Babel versus Teamwork: Jurisprudence since 1900 (1942-43) (unpublished manuscript), cited in KLRM, supra note 1, at 519.


n116 For various versions of this idea, see KLRM, supra note 1, at 517-23.


n117 K. Llewellyn, supra note 31, at 55-56.


n118 KLRM, supra note 1, at 123-26, 185-88; Casebeer, Escape From Realism: Fact and Value in Karl Llewellyn, 1977 Duke L.J. 671.


n119 Letter from Karl Llewellyn to Graham Hughes (May 10, 1954), quoted in KLRM, supra note 1, at 522.


n120 See K. Llewellyn, supra note 31, at 3; see also KLRM, supra note 1, at 148-50.


n121 See K. Llewellyn, Law in Our Society, supra note 72, reprinted, in part, in KLRM, supra note 1, at 505-12; K. Llewellyn, Common Law Tradition, supra note 39, at 509-10.


n122 See, e.g., Schubert, supra note 43.


n123 Llewellyn''s ideas on the crafts of law, job analysis and the teaching of professional skills directly influenced the work of a number of people. See, e.g., T. Anderson & W. Twining, Analysis of Evidence (preliminary circulation draft 1984); C. Kelso, A Programmed Introduction to the Study of Law (1965); S. Mentschikoff & I. Stotzky, The Theory and Craft of American Law (1981); W. Twining & D. Miers, How To Do Things With Rules (2d ed. 1982); W. Twining, Taking Skills Seriously (forthcoming 1986); Rutter, A Jurisprudence of Lawyers'' Operations, 13 J. Legal Educ. 301 (1961). However, despite very extensive activity and literature in this area, especially in the United States, many of the implications of Llewellyn''s theory of legal technology (of which the idea of law-crafts is only a part) remain largely unexploited.


n124 See, e.g., K. Llewellyn, Common Law Tradition, supra note 39, at 510.


n125 See W. Twining, supra note 65, at 15-16 (1968).


n126 For Llewellyn, John Dewey was both the model realist and a symbol of the unfulfilled promise of Legal Realism. Llewellyn had reservations about several of Dewey''s ideas: he was ambivalent toward Dewey''s theory of value, somewhat indifferent to his logic, and critical of what was done by his followers in the name of "progressive education." What was to be admired was Dewey''s cast of mind and "method."


In a 1959 lecture, Llewellyn said: "Since Thomas Jefferson or Benjamin Franklin there has been nobody with the sweet, childlike, open eye to see things fresh that Dewey had." Lecture by Karl Llewellyn (Mar. 31, 1959) (unpublished), quoted in KLRM, supra note 1, at 423. Earlier, Llewellyn had written: "[Dewey''s] method of dealing with problems is still and always will be the great and needed method: Take a fresh look, look to see what is there, and what it is about, and re-pose your issues in those terms." K. Llewellyn, John Dewey and Our Law (1949) (unpublished manuscript).


Although these statements anticipate the spirit and even some of the words of Llewellyn''s last attempts to distill what he meant by "realism," he also expressed disappointment about Dewey''s contributions to jurisprudence. In his writings and his seminar with Edwin Patterson at Columbia, Dewey tended to concentrate on abstract philosophical questions -- on logical method in the law, on fundamental questions of ethics, and on Austin''s theory of sovereignty -- rather than bringing his "childlike vision" to bear on actual legal processes and the law in action. Rather as Jeremy Bentham aspired to become the Martin Luther of jurisprudence, Karl Llewellyn''s private ambition was to be seen as its John Dewey.


In an undated manuscript fragment, Llewellyn wrote:


John Dewey''s philosophy is not a "complete" philosophy. It does not contain much to rest on. Dewey did not rest on it, he gives [no] invitation or excuse for others to rest on it. Its essential aspects are indeed compatible with any ultimates and with any faith by which the working out of what to do next is left to individual effort and responsibility; [but they are compatible with no ultimate or faith]. Dewey does not challenge the institution of authority, and he does not challenge the value of tradition; he has been much too wise to do either. What he does is to insist that authority and tradition go dry and wither unless they are from day to day in every generation fed with the sap of man''s eternal struggle to make man''s institutions meet man''s present and emergent needs. The wisdom of the fathers was wisdom to the fathers because it was vibrant with life-experience of the fathers; and to the children it can be similar wisdom only as it becomes equally vibrant with the life-experience of the children. The verbal expression of old wisdom must not lose its tone, it must ring clear to living experience, or the warped or cracked bell of words must be recast to make its fine metal give true tongue again. This, to Dewey, is man''s duty, man''s necessity, man''s glory.
Cf. K. Llewellyn, John Dewey and Our Law, supra.


Perhaps all this reveals more about Llewellyn than about Dewey. For the leading American Realist to criticize the only genuine philosopher in the movement for concentrating on philosophical questions could be taken as further evidence of the intellectual poverty of the American Realist contribution to jurisprudence. Alternatively it could be cited as a morality tale in support of the view that all worthwhile legal theorizing needs to grow out of intimate knowledge of the particularities of the law -- a view very much in tune with the spirit of pragmatism.


n127 K. Llewellyn, Law in Our Society, supra note 72, reprinted, in part, in KLRM, supra note 1, at 503.


n128 K. Llewellyn, Common Law Tradition, supra note 39, at 222-23; see KLRM, supra note 1, at 447 n.51.


n129 T. Eagleton, Literary Theory: An Introduction 108 (1983). This passage appears in a sympathetic, but not uncritical, account of structuralism. What is being attacked under the rubric of "common sense" in this context are (a) empiricist epistemologies that hold that all knowledge is derived from firsthand "experience," and (b) widely held beliefs that belong to "the stock of knowledge" in a given society at a given time. Llewellyn and Cook were probably type (a) empiricists, but it is doubtful whether Frank was. It is even more doubtful whether any Realist was committed to uncritical acceptance of beliefs of type (b). However, there is a considerable body of literature in the theory of evidence about the inevitable role played by "common sense generalizations" and "general experience" as a basis for making inferences from evidence in coming to judgments about disputed questions of fact. More sophisticated accounts recognize that a society''s "stock of knowledge" changes over time, is not always based on a general cognitive consensus, and is likely to be made up of a mixture of scientific generalizations, beliefs based on first hand experience, speculative hypotheses, prejudices, myths, and oldwives'' tales. One theme in the literature of the theory of evidence, from Bentham to L. Jonathan Cohen, is the unavoidability of basing many judgments on the existing "stock of knowledge," however fallible it may be. See W. Twining, Theories of Evidence: Bentham and Wigmore (1985).


Many evidence theorists emphasize that common sense generalizations often represent "the best knowledge that we have got." This links up interestingly with Llewellyn''s theme that "knowledge does not have to be scientific to be useful and important." The evidence theorists emphasize the inevitability of basing many practical decisions on "common sense"; Llewellyn argues against confining empirical research to questions which will be susceptible to "scientific" answers, many of which may not be very helpful to practical decisionmaking. Neither of those approaches is fundamentally incompatible with "the message of contingency." Mensch, supra note 54. For a plea for common sense empiricism that goes much further than either Llewellyn or Frank would have done, see W. Morison, supra note 9, 178-205.


n130 K. Llewellyn, Law in Our Society, supra note 72, reprinted, in part, in KLRM, supra note 1, at 497. See also N. Westcott, David Harum (1898) ("the story of the shrewdest and the most crotchety banker who ever tended horses or brought young lovers together").


Of course, this does not take one very far. For, on its own, the notion of "horse sense realism" is open to the criticism that it assumes rather than explores what is involved in understanding reality or being realistic. Neither Llewellyn nor any other core "Realist" intended the term to be interpreted in a philosophical sense, as a form of epistemological theory to be contrasted, for example, with nominalism. But Llewellyn''s explications of the term still seem to beg some of the central questions of interpretive sociology: What is social reality? How is it constructed? By whom? What is involved in describing, interpreting, or explaining it? The horse sense of the most experienced and brilliant horse dealer does not equip him to make contributions to either veterinary science or the sociology of horse dealing. Llewellyn was one of the first to attempt to translate Max Weber into English; this fact, together with The Cheyenne Way and his other writings about the law-jobs, should be enough to exempt him from charges of total illiteracy about the puzzles of interpretive sociology. Those writings represent his attempts to go beyond the elementary precepts of horse sense realism. Perhaps his espousal of a horse sense approach to Jurisprudence for the hundred thousand should be interpreted as coming down to three precepts: build on the best experience available; use it as a check; and recognize that it is often the nearest that we can approximate to understanding or knowledge at this stage in the development of our discipline.


n131 Llewellyn, supra note 44, at 22; see KLRM, supra note 1, at 188-93. This last precept is part of a strategy for advancing a discipline. It is not a rejection of systematic and rigorous research in advancing knowledge. Similarly, I hope that my espousal in this lecture of a horse sense approach to reading juristic texts will not be taken as an outright rejection of analogies from literary criticism and theology.


n132 Goldstein, Research into the Administration of Criminal Law: A Report from the United States, 6 Brit. J. Criminology 27, 37 (1966).


n133 For more extensive accounts, see generally Twining, The Benson Report and Legal Education: A Personal View, in Law in the Balance 186 (P. A. Thomas ed. 1982); Twining, supra note 80; Twining, Some Jobs, supra note 3. For contrasting interpretations, see, e.g., Z. Bankowski & G. Mungham, Images of Law (1976), and the useful series of articles on relationships between law and other disciplines in the British Journal of Law and Society (now Journal of Law and Society) (1981 --  ).


n134 See Committee of Heads of University Law Schools, Law as an Academic Discipline (1984), reprinted in Summer 1984 Soc. Publ. Tchs. L. Newsletter and Commonwealth Legal Educ. Assoc. Newsletter No. 39 (Oct. 1984).


n135 See Twining, supra note 80.


n136 The first attempt to substitute "a contextual approach" for "realism" appears in Twining, Two Works of Karl Llewellyn, 30 Mod. L. Rev. 514, 530 (1967). The document quoted in the passage is R. Stevens & W. Twining, Law in Context: A Tentative Rationale 1 (1967) (unpublished manuscript) (on file at New York University Law Review); cf. P. Atiyah, Accidents, Compensation and the Law xi-xii (1st ed. 1970) (the first book in the "Law in Context" series). See also Folsom & Roberts, supra note 102.


n137 I have not always managed to avoid using such terms as "contextualist" and "contextualism." See, e.g., W. Twining & D. Miers, supra note 123, at xix, 113.


n138 This is, of course, by no means exhaustive of what may be involved in studying a word or phrase "in context." In jurisprudence, unlike law, the question "who is my neighbor?" receives an almost unrestricted reply.


n139 Compare this to Bentham on circumstantial evidence:


Circumstantial evidence is that deduced from the existence of a fact, or a group of facts, which, being directly applicable to the principal fact, lead to the conclusion that the latter exists. This conclusion is an operation of judgment. The distinction between fact and circumstance regards only a given case. Every fact may be called a circumstance in relation to another. That it thundered or hailed on the day a murder was committed, is an event extremely independent of the principal fact, but it may be a circumstance worthy of being remarked, and may lead to evidence. Circumstances, then, are facts placed round some other fact; each fact may be considered as a centre, and all others as ranged round it.
J. Bentham, A Treatise on Judicial Evidence 143 (M. Dumont ed. London 1825) (emphasis in original).


n140 R. Stevens & W. Twining, supra note 136.


n141 These criticisms are selected and reconstructed from a number of papers presented at the first U.K. Conference on Critical Legal Scholarship, held at The University of Kent at Canterbury in April, 1981. Especially interesting in this respect are Cotterrell, Notes on the Progress and Prospects of "Contextualism" in Legal Education (1981) and Thompson, Law and the Social Sciences -- The Demise of Legal Autonomy (1981). It is not possible to do justice to their arguments here.


n142 Cotterrell, supra note 141.


n143 See Cotterrell, supra note 141; Thompson, supra note 141.


n144 See Twining, Evidence, supra note 3, at 267-69.


n145 See generally W. Twining & D. Miers, supra note 123; Twining, supra note 61, at 296-300.


n146 The passages most obviously supporting this interpretation can be found in his accounts of the law-jobs theory, especially those emphasizing "The Entirety." See, e.g., authorities cited in note 22 supra.


n147 See H. Lasswell & A. Kaplan, Power and Society 81 (1950).


n148 For further details, see Folsom & Roberts, supra note 102, at 182.


n149 Similarly, Patrick Atiyah broke with tradition by starting his analysis of the common law action for negligence by presenting a total picture of all accidents in our society and of the different compensation systems for accidents that had emerged haphazardly at different times. He then analyzedand criticized the common law remedies by comparing and contrasting them with those other compensation systems. His presentation of this traditional topic in Torts in the context of a total picture of compensation for accidents has revolutionized academic thinking on the subject in England. See P. Atiyah, supra note 136.


I advise first-year law students to interpret their immediate situation in the context of two total pictures: first, a picture of the total process of their own education from cradle to grave (and especially the five-year periods preceding and succeeding their undergraduate law degree) and second, a picture of the variety of courses that are offered in law schools in Britain and elsewhere. The first context helps them to get some sense of what are reasonable expectations for a first-year course and for a three-year degree in the context of a ten- to twenty-year time span; the second provides them with some basis for interpreting and evaluating a particular program of legal education in the broader context of the varied and confusing system of legal education and training that we have in England and Wales. I have found this perspective to be valuable in dealing with such varied subjects as statutory interpretation, intellectual history, confessions, eyewitness identification, and legal literature and information.


n150 Campbell & Wiles, The Sutdy of Law in Society in Britain, 10 Law & Soc''y Rev. 547 (1976). For a recent general review, see Harris, The Development of Sociolegal Studies in the United Kingdom, 3 Legal Stud. 315 (1983).


n151 Campbell & Wiles, supra note 150, at 559. Professor Campbell has modified his views since the publication of the article. See, Campbell, Research Into Legal Services, in Law in the Balance 217, 232, 239 n.17 (P. Thomas ed. 1982) (especially in respect of the "gap" between law and society). The Study of Law in Society, is, however, widely cited in the United States.


n152 The establishment of both the Centre for Socio-Legal Studies at Wolfson College, Oxford and the original Committee on Social Sciences and the Law was announced officially in 1972. Soc. Sci. Research Council Newsletter No. 14 (1972). The original intention was that the Committee would "complement the work" of the Centre for Socio-Legal Studies. In 1982 the Committee was reconstituted as a subcommittee of the Government and Law Committee, but the subcommittee was abolished in December 1984. In 1983 the Social Science Research Council was renamed the Economic and Social Science Research Council.


n153 On the achievements and problems of the Centre for Socio-Legal Studies, see its Annual Reports; see also Harris, supra note 150.


n154 For general accounts, see Atkinson, Our Masters'' Voices: The Dynamics of Oratory (1984); Atkinson, Ethnomethodological Approaches to Socio-Legal Studies, in Sociological Approaches to Law (A. Podgorecki & C. Whelan ed. 1981).


n155 See Harris, supra note 150. For criticisms of the analogous tendency of critical legal scholars to draw too sharp a line between macro- (sociological) and micro- (empirical) approaches to law, concentrating mainly on sociology, see Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); cf. Nelken, The "Gap Problem" in The Sociology of Law: A Theoretical Review, 1 Windsor Y.B. of Access to Just. 35 (1981); Nelken, Law in Action or Living Law? Back to the Beginning in Sociology of Law, 4 Legal Stud. 157 (1984).


n156 See Twining, Taking Facts Seriously, 34 J. Legal Educ. 22 (1984).


n157 See Schlegel, Underhill Moore, supra note 1.


n158 R. Stevens, supra note 1, at 134. Cf. J. White, supra note 12, at 287-88 (1983):


Much of what is wrong about modern critical discourse seems to me its assumption, probably borrowed from a social science, that one''s basic positions can be stated, in a single sentence or two, as a set of propositions that one supports, which can then be subjected to argument defense and attack.
      

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