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Michael Ansaldi *: THE GERMAN LLEWELLYN(一)

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58 Brooklyn L. Rev. 705, *



Copyright (c) 1992 Brooklyn Law School
Brooklyn Law Review


FALL, 1992


58 Brooklyn L. Rev. 705


LENGTH: 30199 words



Michael Ansaldi *: THE GERMAN LLEWELLYN(一)


BIO:


* Associate Professor of Law, Boston College. A.B. 1975, Columbia; J.D. 1983, Yale; M.A. 1986, Oxford. I would like to thank George Brown, J. Allen Smith and Alfred Chueh-Chin Yen, who generously gave me the benefit of their acute responses to this work, as well as Lawrence George, Robert W. Gordon, Joseph Jacobs and Walter Weyrauch, who read an earlier version of portions of this Article, for their perceptive comments. Stephen Conrad, Michael Grossberg, Andrzej Rapaczynski, and Michael B. W. Sinclair shared their ideas about an earlier version of a portion of this paper presented to a panel on "Common Law Jurisprudence as a Social Science" at a conference of the Social Science History Association. Carlos Petit Calvo of the Universitat Autonoma de Barcelona helped me clear up a long-standing mystery in one of Llewellyn''s German books and for that I am very much in his debt. I also wish to thank the University of Chicago''s Law Library for permission to quote from materials in the Karl Llewellyn Papers, as well as Boston College and Florida State University for their generous support of the research and writing of this Article.


The translations in this Article are those of the author unless otherwise noted. The Brooklyn Law Review has relied on the author for citation style and substance for many of the foreign sources used in this Article. The Review would like to thank Brooklyn Law School student Cynthia Stone for her assistance in proofreading the German-language materials quoted in this Article.


SUMMARY:
... It was most likely Kantorowicz, a member of the law faculty at Freiburg, who arranged for Llewellyn to be invited to visit at the University of Leipzig for a semester. ... It was during his time in Leipzig that he steeped himself in the writings of the German sociologists Max Weber and Eugen Ehrlich, thinkers who would occupy a central place in Llewellyn''s intellectual firmament and whose names and ideas would frequently crop up throughout his subsequent writings. ... All these surely existed and might influence the law staff''s behavior, but they were phenomena of a second order. ... When one always sticks the same arm into a coatsleeve first, or puts the same shoe on first in the morning, is it because considerations of practicality, a legal rule or some social norm so requires? Of course not. ... Legal rules, he thinks, do not by their mere existence guarantee law staff behavior that conforms to their wording. ... To Llewellyn the concept underlying society is neither legal rules nor public law, nor even law-staff activity, but order. ... Note that there is absolutely no normative component to Llewellyn''s concept of "groupways," "folkways," "practices" or "behavior patterns." ... It is precisely such "early notions" that provide the law staff (and legal thinking in general) with the basic ideas to use in thinking about "folkway clusters." ...


HIGHLIGHT: Zwei Seelen wohnen, ach, in meiner Brust.


TEXT:
[*705] INTRODUCTION


Karl Nickerson Llewellyn (1893-1962) is generally considered to rank among the foremost legal scholars America has produced in this century. His place in the pantheon of American jurisprudence seems today, upon the hundredth anniversary of his birth and nearly a third of a century after his death, as secure as such places ever are. 1 Even so, legal academics, law students, [*706] practitioners and scholars from other fields would probably each describe that place somewhat differently, since the accomplishments of his career straddle the usual dividing lines. 2


Nevertheless, one aspect of his work that has remained virtually unknown is the substantial body of German-language material Llewellyn produced at a formative stage of his jurisprudential development. 3 Consequently, this Article seeks to give an account of the Llewellyn Germanica, in particular of the two major, closely connected works Llewellyn wrote in German at a [*707] seminal stage in his career, between 1928 to 1932: Prajudizienrecht und Rechtsprechung in Amerika and Recht, Rechtsleben und Gesellschaft. 4


After first providing background information on the history and genesis of these works, this Article presents an overview of the arguments of greatest jurisprudential significance. This Article demonstrates that the works constitute a thematic whole, presenting a unified statement of the young Llewellyn''s vision of, and hopes for, the nascent Realist movement. At the heart of both books is the enduring ideal of legal certainty. Although he rejects the pseudoscientific Langdellian schema for its attainment, 5 Llewellyn nonetheless continues to identify certainty as a primary value of legality, while offering an unorthodox, social-science assessment of how much there is and where it may be found. In so doing, he outlines an approach quite unlike the corrosive mockery of certainty articulated by his contemporary and sometime partner Jerome Frank. Llewellyn also provides a measured, rather than radical, critique of legal rules. He believes them to play a key, if not always dispositive, role in the highly predictable operation of the case law system, vital elements in the complex interplay of subjective and objective factors in adjudication. Yet using linguistic theory, he is also able to provide a persuasive account of how an ideologically static precedent system can make changes without violating its narrow conception of the judicial function. In Llewellyn''s view, this mixture of change and continuity results less often from conscious and careful balancing than from the social forces at work on the judiciary and in the wider world. Thus, much of Llewellyn''s effort is directed at championing a new, sociological understanding of how law works in the context of its social environment.


The Article then concludes with a brief assessment of the significance of these works and their place in the history of Legal Realism and the Llewellyn canon.

[*708] I. BACKGROUND

A. Llewellyn''s German 6


Because of Llewellyn''s undeniably Germanic first name "Karl," one is tempted to explain the existence of his German works by supposing that he was of German ancestry and thus, presumably, raised in a German-speaking household. But this was not the case: Llewellyn''s father, William, was an immigrant to America from Wales; his mother Janet bore the equally Welsh maiden name of George. 7 To every appearance, the Llewellyn household was monoglot. Young Karl Llewellyn is likely to have made his first acquaintance with German at some point in his primary or secondary education, possibly at Boys High School in Brooklyn, New York where the Llewellyns had moved from Washington State shortly after Karl''s birth.


By age sixteen, however, "such was his intellectual promise . . . [that the Boys High S]chool had nothing to offer [Karl] academically." 8 His parents therefore decided to send him to a German Gymnasium before he started college. 9 Llewellyn spent three years at school in Schwerin/Mecklenburg in northeast Germany, perfecting his knowledge of German as well as learning the local dialect. William Twining, Llewellyn''s biographer, describes him as "bilingual" by the end of this period. 10 Several years later, as an undergraduate on leave from Yale College, Llewellyn returned to Europe where he served briefly as a volunteer [*709] in the German army during the Great War, a feat of derring-do requiring near-native fluency in the language of his fellow combatants. 11 Llewellyn''s German obviously was very good, 12 if not perfect: 13 two knowledgeable scholars, readers of both English and German, stated that they very much preferred Llewellyn''s German prose style to his English. 14

[*710] B. Leipzig I: 1928-29


Upon discharge from the Kaiser''s army, Llewellyn returned to Yale College, from which he was graduated in 1915. He went on to earn his LL.B. from Yale Law School in 1918. Thereafter he remained at Yale, teaching commercial law and partnership and also reading for the J.D. degree, awarded to him in 1920. In that year Llewellyn went to New York City to work in the legal department of National City Bank (a corporate ancestor of today''s Citibank). 15 In 1922 he returned to Yale as an assistant professor, receiving a promotion to associate professor the year following.


After serving on the Yale Law School faculty for a short period, Llewellyn migrated back to New York in 1924. (His first wife Elizabeth Sanford was a graduate student in economics at Columbia University.) At first he continued to teach at Yale, commuting to New Haven, while also teaching at Columbia as a visiting professor. Ultimately, however, he found it necessary to relinquish his position at Yale and in 1925 he was appointed to the faculty of the Columbia Law School. There he devoted himself to teaching and research in the area of commercial law.


Shortly after Llewellyn''s arrival, Columbia commenced its [*711] great internal debate on curricular reform. In this debate Llewellyn joined with Columbia''s other Realists avant le nom, Underhill Moore, Herman Oliphant, Hessel Yntema and William O. Douglas, in seeking to reorganize the law school''s courses along functional lines. 16 But Llewellyn was not entirely of one mind with them: he did not share the simultaneous enthusiasm of Oliphant, Moore and Yntema for turning the law school into a graduate research institute in law and the social sciences, at any rate not to the detriment of its traditional mission of professional training. 17


In 1927, at about the same time as he was busily organizing a petition drive by American law professors on behalf of Italian anarchists Sacco and Vanzetti, 18 Llewellyn met the distinguished German jurist Hermann Kantorowicz, 19 who lectured at Columbia that summer. It was most likely Kantorowicz, a member of the law faculty at Freiburg, who arranged for Llewellyn to be invited to visit at the University of Leipzig for a semester. 20 Llewellyn accepted. Quite apart from the obvious appeal of a return to Germany and the intellectual stimulation promised by Leipzig, seat of the Reichsgericht and home to a distinguished law faculty, the tense atmosphere engendered by the "deanship crisis" at Columbia 21 and the collapse of his first marriage [*712] doubtless made a sojourn away from New York seem rather attractive. 22


Llewellyn''s first visit to Leipzig, during the winter semester of 1928-29, was supported by the Carnegie Foundation 23 and the Social Science Research Council. 24 Llewellyn would later describe himself as having had two basic "jobs" on this first trip: "1) To develop into coherent form a book on Law and the Social Sciences. This was the main job. . . . 2) To teach a one-session-a-week course on American case law." 25 For reasons which will [*713] be discussed below, 26 his first job, the book on law and the social sciences, was not completed on this visit. Ironically, it was his second job -- his teaching -- that first led to publication of a book.


The course Llewellyn taught in Leipzig was designed to be an introduction to the American legal system, with particular attention given to the role of case law. The chosen emphasis was provocatively apt for German law students, given the strongly deprecating attitude then taken by orthodox Civilians toward judicial decisions as sources of law. A second notable feature of the course was that Llewellyn was not to teach it in the standard Continental lecture format, but rather as a Praktikum, a discussion class devoted to the study of particular cases and actual court opinions, which would serve as a basis for firsthand observation of the methodology of Common Law.


The choice of the Praktikum format, however, turned up a major problem. As Llewellyn described it several years later:


[When I taught in Leipzig in 1928-29], it became clear to me that, even though English common law had received occasional discussion in German, and had at times been cited to illustrate the basic nature of adjudication, the American variety had scarcely been dealt with at all. And even with the English variety, German lawyers had never been given enough original materials to form a clear picture of what their common law counterparts were talking about, and certainly not enough to make up their own minds when common lawyers were divided in their opinions. 27

To remedy this situation, Llewellyn either translated or had translated into German a number of English-language opinions for use in his course. 28 These translated cases formed the nucleus [*714] of the German book eventually published as Prajudizienrecht. These cases were supplemented by secondary materials written by Llewellyn and others, and by additional translated opinions not used in the course. 29


Apart from his teaching, which later resulted in the publication of Prajudizienrecht, Llewellyn''s first sojourn in Leipzig was of major significance to his scholarly development for another reason. It was during his time in Leipzig that he steeped himself in the writings of the German sociologists Max Weber and Eugen Ehrlich, thinkers who would occupy a central place in Llewellyn''s intellectual firmament and whose names and ideas would frequently crop up throughout his subsequent writings. 30

C. The Publication of Prajudizienrecht


In Llewellyn''s papers is a contract dated February 20, 1930 between Llewellyn and the Leipzig Faculty of Law. 31 In it the faculty agreed to support the publication of Prajudizienrecht with a subvention to the publisher, 32 in return for which Llewellyn [*715] assigned all rights in the work to the Leipzig faculty. 33 The latter also undertook to enter into a follow-up agreement with a Leipzig publishing concern, Theodor Weicher Verlag. 34 In its agreement with Weicher, the faculty presumably assigned its rights in the work to the publisher since the second page of the book bears Weicher''s notice of copyright. 35 The book did not appear in print until 1933.


Prajudizienrecht was issued at about the same time as Hitler was named German Chancellor. Despite the inauspicious hour of its birth, the book received a number of favorable notices in German law reviews. 36


No English-language version of Prajudizienrecht was ever published during Llewellyn''s lifetime. 37 Even so, Llewellyn''s correspondence [*716] indicates that he mounted an extensive campaign to have the work reviewed in American and English law reviews and social-science periodicals. 38 One of the work''s American reviewers was Lon Fuller. Fuller wrote both a short review of the book 39 and then used it as the focus of his well-known article American Legal Realism, 40 in which he opined that Prajudizienrecht was "the nearest approach" to "a comprehensive work which will both describe and apply the methods of legal realism, which can serve both as an exposition of the approach and as an exemplification of it." 41


Max Rheinstein, one of Llewellyn''s colleagues on the faculty of the University of Chicago -- where Llewellyn taught after leaving Columbia in 1951 -- reported that Llewellyn was hoping to put out a new German edition of Prajudizienrecht in connection with his projected return to Germany in 1962-63, after his retirement from the University of Chicago. 42 He died before the plan could be realized. Contemporary German lawyers appear to make little use of the book. 43

[*717] D. Leipzig II: 1931-32


The period after his return from Germany in 1929 was one of enormous activity and scholarly productivity for Llewellyn. 44 For the next several years he continued to work sporadically on the Sacco and Vanzetti case. 45 In 1929 and 1930 he first delivered the set of lectures to Columbia law students that would become Bramble Bush. 46 In 1930, a year that saw a divorce from his first wife finalized, 47 Llewellyn also published his groundbreaking, thousand-page Cases and Materials on the Law of Sales. 48 Furthermore, in that annus mirabilis 1930, there was a major engagement with the work of another key Realist thinker: Llewellyn read and participated in a symposium 49 on Jerome [*718] Frank''s controversial Law and the Modern Mind, a work that influenced many a passage of Prajudizienrecht. 50


Of equal moment for the history of modern American jurisprudence, 1930 also saw the appearance of Llewellyn''s remarkable, characteristically undisciplined essay A Realistic Jurisprudence -- The Next Step, 51 which provided the eponym for a group of scholars who would become known as Legal Realists. The article was also the opening salvo fired in Llewellyn''s famous exchange with Harvard Law School Dean Roscoe Pound, a battle that echoes in the pages of Prajudizienrecht 52 and one with baleful consequences for subsequent scholarship on realism. 53


Llewellyn returned to Leipzig in 1931 and again took up his work on legal sociology, lecturing 54 on it one hour a week to students from all disciplines. 55 In these lectures he sought to identify with greater precision than in his Next Step article "the subject matter of a science of law" 56 and to offer some "daring hypotheses" 57 about what this science might reveal about the interrelationship between law and society. 58 Apart from his weekly lectures in Leipzig, Llewellyn delivered a number of successful guest lectures at other German universities. 59 He also formed relationships [*719] with a number of German legal scholars that endured long past his stay in Germany. 60


On this second trip Llewellyn remained in Leipzig at least until early August 1932 when he wrote the preface to Prajudizienrecht, then in the final stages of preparation for publication. 61 Hence he was presumably in Germany to witness the crucial elections of July 31, 1932 when the Nazis won 13.7 million votes and 230 seats in the Reichstag, thereby becoming the largest political party and paving the way for Hitler''s appointment as Chancellor early the following year. 62

E. The Publication of Recht, Rechtsleben und Gesellschaft


Llewellyn sought to have his 1931-32 Leipzig lectures on legal sociology, together with some additional materials, published in Germany under the title Recht, Rechtsleben und Gesellschaft. Llewellyn''s contemporaneous notation on the typescript describes the work as "publikationsreif [ready for publication]." 63 [*720] But the economic situation of German academic publishers was so perilous that the manuscript could not be published without a substantial subvention. The Leipzig law faculty, having previously contributed 4000 marks toward the publication of Prajudizienrecht, was no longer in a position to provide an additional grant. Thus, a number of academic presses turned the manuscript down. After failing to have it published in 1932, Llewellyn appears simply to have laid the manuscript aside. It remained unpublished until 1977, fifteen years after Llewellyn''s death, by which time its existence had come to the attention of the Swiss legal sociologist Manfred Rehbinder. 64 It has not yet been translated into English.


Upon his retirement from the University of Chicago in 1962, Llewellyn was planning to return to Germany to lecture on law and sociology in Freiburg and Hamburg. He intended to return to his project of thirty years earlier: to draft a systematic sociology of law. Before he could make that trip, he died on February 13, 1962. 65

II. THE JURISPRUDENCE OF THE Germanica: AN OUTLINE


Eppur'' si muove


Six common concerns animate the intellectual world of Prajudizienrecht and Recht, Rechtsleben und Gesellschaft. The first is a factual question: What is it that judges do? Is it correct to describe it as rule-following? If not, what do judges do? The second question is also factual: Is the operation of the judicial system still predictable if it turns out that judges do not simply follow rules? If they do not simply follow rules, what accounts for that predictability? The third question is technical: How, mechanically, can judges achieve legal change at all given the ideology and systemic constraints of the institution within which they operate? The fourth question is interpretive: Why is it slow change that is being achieved by the judicial system? The fifth question is normative: What should judges be doing? What is the charge to courts? The final question is sociological and it is a [*721] preoccupation that underlies all the others: What is the nature of law''s interaction with society, their reciprocal influences and effects?

A. Prajudizienrecht: The Two Faces of Law


The book that emerged from the 1928-29 visit to Leipzig, Prajudizienrecht und Rechtsprechung in Amerika, represents a compilation and expansion of the materials Llewellyn had developed for his Praktikum. 66 The work begins with a modest suggestion that it is something in the nature of a legal process casebook, filling in a lacuna in the German literature on the Common Law. 67 But there is much more to it than that. Prajudizienrecht is quite obviously also conceived, in part, as an exercise in comparative law:


Much of what follows will be of immediate use to German lawyers only insofar as the contrasts between German and American law make them more sharply aware of the fundamental character of their own legal system. By seeing how another relatively advanced culture can make entirely different arrangements for things they have always supposed to be matters of course -- things that obviously must be this way and not the other -- they also may gain a critical outlook and an expanded capacity for adapting their own system''s traditional institutions to the practical needs of real life as they evolve. On the other hand, much in this book addresses problems that are virtually identical in both systems. Recognizing and solving a problem becomes remarkably easier when it shows up wearing a peculiar foreign costume. 68

Throughout the work, in fact, two recurrent themes are played off against each other in a comparativist counterpoint: Llewellyn''s proselytizing of Civilians on the merits of case law and his badgering of Common Lawyers over how much they have to learn from Civilians about statutes. 69


Underlying Llewellyn''s first claim, that precedent had something to offer Civilians, was his airing of the precedent system''s [*722] strengths and weaknesses, particularly in its American incarnation. Were the Germans ever to be persuaded of the value, indeed the "inevitability," 70 of case law, which he noted was on the rise in German law, despite the best efforts of legal scholars to ignore it or fend it off, 71 it was equally his hope that they would be put on their guard against the shortcomings and defects that had marred it in the United States. 72


Llewellyn''s critique of case law is unsparing. It is matched, however, by an equally vigorous defense of precedent against attacks he thought unjustified, from quarters both foreign and domestic. 73 The primary source of these attacks lay in a fundamental misunderstanding of the system, rooted in the misinformation put out by some of its own adherents, in particular by the advocates of Doktrin and Dogmatik, that is, by orthodox legal theorists of a black-letter or Langdellian stripe. To counter this and to present a true picture of precedent, Llewellyn proposed to take a page from the social sciences and adopt "a fundamentally sociological approach [soziologische Grundeinstellung]," 74 proceeding in the manner of an "anthropologist," 75 whose job is "scientific observation [wissenschaftlich Beobachtend]," 76 description of what has been observed and reproduction of the raw data studied. It is from Llewellyn''s rejoinder to the standard American legal theory of his day that the book derives much of its jurisprudential interest and most of its polemical animus.


Prajudizienrecht is divided into three "Books." 77


1. Book One


Book One, comprising thirty-nine numbered sections, seeks to provide German readers with the basic knowledge necessary to read and understand American (and, to a lesser extent, English) case law. The bulk of Book One consists of bread-and-butter [*723] information about the American court system, the process of "finding the law," basic civil procedure and the law-equity distinction. 78 Llewellyn starts out with a brief discussion of the significance of judge-made (as opposed to codified) law and follows this with a succinct account of the history of Common Law, its ideology and characteristic features. He presents a fairly orthodox presentation of how to read cases and determine what rules of law they stand for, and notes the way these rules are regarded as governing the disposition of subsequent cases.


Anticipating his fuller treatment in Book Two, however, Llewellyn then proceeds to undermine this orthodoxy by sharply circumscribing the real value of verbal formulations of legal rules. First, he notes that the common law rules'' very "malleability" 79 i.e., their typical lack of a fixed phrasing, allows for their unnoticed refashioning. Furthermore, if one does not assume major technical incompetence by the trial bar and judiciary in failing to ascertain an existing correct rule, the very phenomenon of successful appeals indicates that "rules" provide no certain guide to case outcomes. Indeed, virtually all cases on appeal to courts of last resort are legally ambivalent, "doubtful" cases that "could be decided just as easily, legally speaking, for the plaintiff as for the defendant." 80 Finally, Llewellyn even evinces a certain agnosticism about the part, if any, that rules actually play in the decision-making process. In the individual case, the "legally incalculable" human factor, the judge''s personality, may be dispositive. 81 Over the run of cases, social and economic forces may be at work.


2. The Cases and Materials (Book Three)


While Book Two constitutes Llewellyn''s "comprehensive [*724] discussion" of the case-law system, 82 the discussion to some extent presupposes a prior acquaintance with Book Three, the translated cases and materials. Llewellyn apparently expected his German readers (or at least his ideal German readers) to familiarize themselves with Book Three before going on to read Book Two. 83 The "anthropological" 84 material in the former, he believed, would either bear out or refute his portrait of case law in the latter.


Llewellyn''s goal in selecting Book Three''s cases was not to give German readers a representative overview of American substantive law. 85 Rather, his purpose was "to show how the doctrine of precedent actually works, and to provide an insight into the nature of case law adjudication, in fact into judicial decision-making more generally." 86 The cases were accordingly meant to illustrate the realist thesis that "the law is caught up in change, and much more so than is commonly supposed." 87 Some cases would show change effected through the "Janus-faced" case [*725] method, 88 that is,


[t]he accepted way unwelcome precedents are confined (distinguishing), and the equally accepted way welcome precedents are expanded (stating the rule of a case broadly, glossing over the origins of a particular rule in a passage of dictum, etc.). That the work method of our judges has harbored this dichotomy, we have long known. But it has not, I think, heretofore been claimed a) that each half of this dichotomy is just as correct, in legal doctrine, as the other; and b) that a case-law system finds its true essence and sustenance precisely in this "alternative" doctrine. 89

Changes in legal substance, however, could often be found even in cases where the language of the opinion led readers to suppose that no change was taking place, that nothing more was happening than a common or garden application of some existing rule:


Insofar as change and growth are so immediately obvious in so many of the cases presented, my selection may actually give a somewhat distorted picture of normal American decisionmaking. . . . [T]o avoid having the selection needlessly distorted, I have also taken pains to put in a fair number of cases in which the court kept to its "old ways." I have, I grant, tried to show that even in such cases the court''s decision was in fact breaking new ground, that only in form did precedent seem to dictate the decision. 90


Like the good social scientist he was here aspiring to be, Llewellyn was not insensitive to the problem of evidentiary distortion inherent in choosing only corroborating cases to illustrate any particular thesis, a methodological failing for which he sternly took orthodox legal scholarship to task. 91 To counteract the problem, he chose only half the cases for Book Three. The other half, previously unknown to him, were pulled together by one William A. Leider, described as "a New York attorney," but who apparently had been an editor of the Columbia Law Review [*726] working for Llewellyn as a research assistant, 92 "who had no idea what I might ultimately want to say about them." 93


Generally, the cases included in Book Three, as Llewellyn describes them, are


more than fifty American decisions, unabridged or in the form of extended case synopses, which include a statement of the facts, the procedural posture of the question before the court, the reasoning of the opinion and the holding. Seven English cases are given similar treatment. . . . Thirty [of the American decisions] have been taken from the jurisprudence of New York State, seventeen of these from decisions of that State''s highest appellate court over the last few years. 94

Not surprisingly, there is a certain overlap with the cases Llewellyn had included in his roughly contemporaneous Cases and Materials on the Law of Sales. 95 Indeed quite a number of the cases deal with contract or commercial-law matters. Still, they were included not because of their subject matter but because they illustrated something characteristic of case-law adjudication and because Llewellyn was already familiar with them. Accompanying many of the cases are comments, long and short, in which Llewellyn provides a close reading and critique of those portions of an opinion that bear on some key feature of case law. Furthermore, Book Three also contains some primarily informational introductions to a particular line of decisions, 96 as well as a number of excerpts from treatises, law review articles, and the writings of various legal scholars, notably Cardozo (one of the book''s two dedicatees), Holmes and Pound. 97


[*727] 3. Book Two


Book Two consists of sections forty through seventy-four. Llewellyn describes his project in this book as one of developing


first . . . a picture of a specific, historically conditioned precedent system, America''s, with all its peculiarities, shortcomings and virtues -- an anthropological undertaking. But, second, it is important to reveal what general significance this anthropological material may have, what bearing it has not only on how a case law system works and what it holds important, but also on the nature of adjudication more generally, indeed adjudication even in a system of written law, in which the written word maintains that it alone rules over the whole of law. 98


a. Court Portrait


What was the usual "picture" of precedent in America against which Llewellyn''s anthropological picture would be seen? The portrait generally painted in Llewellyn''s day was of an applied science at work. Since the beginning of the modern age, many fields of learning had sought the prestige accruing to mathematics and the hard sciences from the enviable solidity of their results. By the last quarter of the nineteenth century the legal system had evolved a "scientific" model of the way it operated, a logical "science of law" purporting to explain the judicial process on a "deductive" or "syllogistic" model. 99 This science held that the outcome of every legal controversy could be determined by setting up a syllogism. Its major premise would be the applicable preexisting "rule of law" that could be gleaned from earlier cases; the minor premise was the facts of the controversy at issue as analyzed under the fact categories employed by the foregoing rule; and the logically required conclusion drawn [*728] therefrom would supply the "correct" decision of the case. 100


Theoretically, such a "scientific" process ought to have been reproducible, with identical results, by all adepts of legal science, practicing attorneys and sitting judges alike. Thus, competent attorneys representing the interests of opposing parties ought to have been able to spare their clients the time and expense of litigation by jointly running through the same exercise in syllogistic reasoning themselves, thereby scientifically "predicting" the eventual outcome of any lawsuit. In fact, though such a consequence was presumably not often aired, syllogistic theory logically ought to have led to a kind of withering-away of the judicial estate. 101 Nonetheless, where litigation did ensue because of lawyers'' ineptitude, judges'' written opinions served to reconstruct the syllogistic reasoning for the dullards unable to figure it out for themselves.


b. The Warts Restored


Llewellyn spurns this mechanistic explanation of the judicial process for the truly new case. 102 The initial focus of his rejection [*729] is on the deduction''s minor premise, i.e., the statement of the facts of a case analyzed under the categories used in the rule of law (the major premise). In a strikingly Frankean passage, Llewellyn writes:


[A scholar] knows that it is impossible for anyone to have objective knowledge of the facts as they really are. Out of one and the same mass of facts, each of us, based on individual experience, decides what "the"  facts are. What one has learned to regard as important is what one sees, what one most readily notes about a situation. This is what one looks for. This is also what one has a tendency to emphasize, overlooking many other elements in themselves no less important. This is true of anyone''s observation of any fact situation. It is most certainly true when it is a matter of classifying facts for the purposes of description and further use. For lawyers in particular, such classifying is a tacit precondition for handling any legal dispute. A lawyer has no wish to deal with isolated facts, with the Unique. He wants to deal with facts as instances of fact categories. Within the raw factual matter, he seeks out the few "essential" facts, those which are of legal relevance because they fit into a legal fact category, thus providing a handle for "applying" a legal rule. We know this, we accept this, and call it good. But we are apt to slip into the belief that not only is there generally just one possible way to classify the facts, but also that the particular classification made in a specific lawsuit has something necessary, something foreordained about it. 103


The intimation that "facts" are not susceptible to scientific treatment is borne out by the Anglo-American phenomenon of the separate opinion, a major key to Llewellyn''s repudiation of the deductive theory. Among their many virtues, 104 dissents and concurrences often spotlight the refractory complexity and factual richness lying just below the smooth apodictic surface of many a majority opinion:


An observer will first note that the statements of facts in the separate opinion and the main opinion do not precisely coincide; often they are at loggerheads. . . . Without needing a separate opinion to prove it, a scholar might already have suspected that the facts of the case undergo reshaping as the decision is being made, but especially as the opinion is being written.


To the sociologist it is clear . . . that a fact situation admits of [*730] more than one of the constructions espoused; that each way of construing the facts will contain a degree of violence to either the fact situation or the classifying category. For the facts will typically require the making of some "adjustments" to a category which, before the court came to construe these facts, was not quite applicable to them. There is a slight shifting of either the facts or the category, and neither competing interpretation is "right" or "wrong." Rather, the interpretation either does or does not further a particular purpose, the interpreter tacitly choosing from among various possible purposes.


We know too that a raw fact situation cannot be classified without shunting the bulk of the facts off to one side. . . . [I]f, when studying cases, one generally gets to see only a single, officially presented statement of the facts, if one takes this official statement as the basis for one''s knowledge and criticism of the case . . . the "application" of the legal rule will seem deceptively simple. . . . But when one sees a second judge at work, when at a significant point in his opinion facts emerge that were completely glossed over in the majority''s version, we cannot avoid realizing that everything is not quite as simple as it might first have seemed. 105


Then Llewellyn joins battle with the regnant orthodoxy on a second front. A further reason to mistrust the conventional portrait of case law is provided by a line of argument in Book One 106 to which he now returns: the critique of legal rules, the major premises of judicial syllogisms. Earlier on, he had pointed to slippery phraseology, to the phenomena of successful appeals and "doubtful cases" and to our ignorance of the actual way cases are decided, so as to undercut the sweeping claims traditionally made for rules in the judicial process. But now, calling again on separate opinions, he notes that just as the ex ante ambivalence of most Supreme Court cases and the successful prosecution of appeals suggest the inadequacy of a purely rule-based theory of adjudication, separate opinions only serve to confirm that inadequacy, but synchronically, all on a single level of the judicial hierarchy, rather than diachronically, up and down the hierarchical ladder:


Where a dissent is written, the differing analyses would indeed lead to differing outcomes. It is here that one realizes that, if decision making [*731] is viewed as a matter of pure deduction from preexisting, clearly defined rules of law, there is less to be said for the predictability of decisions than one might readily think. Yet even where the separate opinion is in the form of a concurrence, one inevitably reaches the same conclusion. For if the same fact situation can be analyzed by learned judges in a variety of ways, it is only a matter of chance that the analyses eventuate in the same result, if the legal analysis is really the decisive factor in the decision. . . . On this view of things, the separate concurrence assumes a level of significance beyond even a dissent''s. For here we can observe a majority of the panel, despite all their differences over the law, nonetheless reaching the same conclusion from the same fact situation. 107


There now comes a final line of attack. While the collective import of majority opinions, dissents and concurrences is to assert the simultaneous applicability of mutually exclusive rules of law to one and the same fact situation -- a claim scandalous, of course, to a logical "science" -- even where rules are unanimously accepted as controlling, they are likely to be in some wise empirically defective:


Were one to make a special study of the way black-letter scholars state legal rules . . . one would usually find that, even though this process is based on empirical observation, it only selectively reflects prior observation. However conscious or careful they are about doing it, black-letter lawyers cull only a few cases from among the relevant ones decided, plus a few of those discussed in the literature or hypothesized, perhaps first giving a few they thought up themselves. Rarely will they even have all the relevant cases in front of them; and should they have them all, they still regularly omit a number. Indeed, even when they do not have all the cases, they exclude many of the cases looked at. What remains becomes the core, the framework of their legal rule, or what they would maintain is its "correct" content. . . . What they have done is somehow to forget both that their own procedure for framing legal rules has its basis in description [of what courts are doing], and that their rule has simplified what it meant to describe. 108

Because a precedent system is grounded in past court practice, this descriptive inaccuracy of black-letter rules, the vice of overgeneralization, necessarily skews the true normative force of [*732] prior decisions. 109 Not only might a sitting judge disagree with fellow decisionmakers on which of several vying rules correctly applied to the facts of a pending dispute, these precedential competitors might also themselves be, to some extent, summary misstatements of past facts and, hence, of the presently controlling rule of law.


c. Back to the Appearances


What would a true picture of precedent look like? Because he views his project as, in the first instance, one of "anthropological" portraiture, Llewellyn starts out by urging extreme diffidence in the vocal behavior of judges, i.e., in the language of opinions. Citing Bronislaw Malinowski''s recently published Crime and Custom in Savage Society, 110 Llewellyn commends to lawyers the increasing skepticism of ethnographers of "primitive" cultures, who had gone from credulous acceptance of the natives'' own explanations [herrschende Ideologie] of what they were doing, to a disregard of these explanations altogether, and, finally, to an inclusion of these explanations as one element of their interpretations of "native" behavior. 111 Correspondingly, the initial focus of attention in Llewellyn''s study would be the outcomes of cases, what the judges were actually doing, and on attaining as detailed a knowledge as possible of the underlying facts. The opinion, i.e., the way judges described the process of rule-applying by which they allegedly reached a particular result, the recapitulation of the legal reasoning they claim to have followed, would be treated as "native explanation" and assigned only a second-order significance. Hence, an opinion was to be regarded as the "frock coat and black hat of black-letter law," 112 how a decision had to be dressed up before being fit for polite [*733] society. It reflected more a psychological need to rationalize, to provide a retrospective "justification" for "a conclusion already reached on other grounds." 113


When studied with a close eye on the outcomes, on what judges were actually doing, these opinions and their "rules" displayed in reality a doctrinal "elasticity . . . allowing any case precedent, whenever there is some sort of doubt, either to expand or contract, as required by the question before the court." 114 Or, as indicated earlier, their verbal surfaces might conceal real substantive change beneath a deceptive continuity in the precedential formulae invoked. 115 The challenge to legal orthodoxy, the "natives'' explanation" of their actions as rule-following, should be readily apparent. (Indeed, had Llewellyn been a Marxist, he might aptly have employed the concept of superstructure to explain the function of opinions.) Yet if judges were not engaged, or were not primarily engaged, in the following of rules, what exactly were they doing? Indeed, what then should they be doing? What was the charge to the courts?


Despite the conceptual impediments placed in their paths by the deductive theory of their function, Llewellyn clearly thinks that American judges by and large are doing what they should be doing, with greater or lesser self-conscious awareness (depending on the judge) of exactly what that is. 116 What that is essentially seems to be a leisurely adaptation of existing law to evolving social needs: reactive, accommodating and none too hasty legal change married to a decent observance of the protocols of immutability. 117 But what is to account for so sanguine an assessment? How is it that change is possible at all in a system institutionally fixated on the idea of boundenness? And when change comes about withal, how is its scope kept within institutionally tolerable limits? If the judicial process was indeed an arena of legal change, why were the changes so moderate and almost imperceptible? And why were "differences [between panel members] over outcome so relatively infrequent in Anglo-American law? . . . [W]hat is it that makes different [*734] judges -- apparently despite their divergent analyses -- still reach the same result?" 118 Finally, why were the right changes so often made?


d. Mum''s the Word


The beginnings of an answer lie in Llewellyn''s theory of the nature of language and its use in the legal process. Linguists have theorized that, while new words are constantly being created, the basic wordstock of a language, its core vocabulary and fund of recombinant lexemes, is relatively stable, replaced on the order of once every 5000 years. 119 The inability of relatively stable human language to limn with precision newly perceived phenomena and newly felt emotional configurations is a commonplace of scientists and poets. Yet lumbering and inexact as they are, man''s natural languages, hereditary and retrospective, are used perforce to assimilate and convey the data of experience, mixing stability with change in varying measures according to the age.


Law''s relations with language naturally reflect those of the larger society, except that legal language is of course more conservative still. 120 It has an even more tenacious vocabulary, being less hospitable, once past its formative years, to coinage and foreign borrowings, less flexible in diction, less stratified into "literary," "standard written" and "colloquial" variants. 121


Drawing on the work of semanticists C.K. Ogden and I.A. Richards, Llewellyn analyzes the use of legal language in decisionmaking and concludes that, for disputes not squarely on all fours with any precedent, legal language plays a largely obfuscatory role in the account it renders of the judicial process. What it hides is precisely the presence of change. Two typical instances of this are the "immanent" expansion of a word''s meaning and its "hidden" expansion in the doubtful case. It is precisely [*735] because so many words are, by their nature, abstractions from observation of concrete objects and experiences that they often have at once an abstract and a concrete character. In this duality lie the seeds of dissembled legal change, of "immanent" and "hidden" expansion of legal rules.


The following illustrations will help to show what Llewellyn had in mind. Assume a rule reading "anyone who, without authorization from the sheriff, brings a weapon onto the fairgrounds shall be liable for a fine of ten shillings." 122 Further assume that the rule was promulgated in "Albion" -- an Anglophone, Common Law country not unlike medieval England. On Llewellyn''s theory of language, the framers of the rule, when employing the word "weapon," necessarily had to use it as a shorthand compendium for all the specific implements of battle or combat with which they were familiar, viz., those that existing technology had theretofore made available. For the sake of simplicity, let us say these were four: the bow-and-arrow, the sword, the spear and the club.


The simultaneously concrete and abstract character of "weapon" should be readily apparent: when the rule was promulgated, the use of the word inevitably summoned up a mental image of one or more of the above implements. Yet, by virtue of not being the proper name of any of them -- by rejecting the drafting alternative "anyone who . . . brings a bow and arrow, sword, spear or club . . ." -- it indicated that some element of commonality had been intuited and singled out, abstracted from the specifics. 123


[*736] Albion''s rule against weapons was, at first, invoked chiefly against rival bands of sword- and spear-wielding adolescents for whom fairgrounds made an ideal site for their regular Friday-night rumbles. Indeed, these gang activities were the primary impetus for the creation of the rule in the first place. When caught, the youths regularly pled guilty and paid the fine, thus obviating the need for a trial and judicial discussion of the rule.


For Llewellyn, the fining of the Friday-night rumblers would most clearly be a straightforward instance of "application" of a rule: fairground gangfights were the rule''s specific inspiration and "swords" and "spears" were unarguably part of the mental inventory of the drafters as they employed the concept "weapon."


The first reported prosecution of any significance brought under the "fairgrounds weapons" ordinance, Rex v. Hood, involved a young roisterer who was charged not only with bringing a bow-and-arrow onto a fairground, but also with going around and holding it, tensed and ready to shoot, at the throats of assorted mercers and silversmiths displaying their wares, until they finally coughed up the day''s intake of ducats and florins. Before getting caught, Hood had made himself wildly popular with the country folk, using some of the loot to buy chickens for every pot, thereby indulging his own vision of distributive justice and a new world order while having a bit of fun on the side.


At trial Hood denied violating the substantive provisions of the rule at all: once having heard its proclamation by the town crier, Hood testified that he always took great care to carry only his bow onto the fairgrounds, leaving it to his clerical assistant and factotum, one Tuck -- an early Franciscan adherent of liberation theology -- to tote the arrow-holding quiver a few paces behind him, passing him arrows as needed. The judge rejected Hood''s technical argument out of hand, holding in the alternative that Hood had either "constructively" brought a weapon onto the fairgrounds by acting as part of a conspiracy with Friar Tuck to transport weapon parts onto the fairgrounds for subsequent assembly, or that the bow itself could be deemed an "inchoate" weapon, inchoate weapons being, "of course," no less [*737] weapons within the meaning of the rule. 124


While the fining of the rumblers may have been a clearcut "application" of a legal rule, what happened in Hood, by contrast, was almost, but not quite, as simple. A bow, standing alone, can do little physical harm to anyone; it scarcely shares the common feature abstracted from bows-and-arrows, swords, spears and clubs and designated by the term "weapon." Thus, the judge deciding the case was required to make a leap, admittedly slight, from the concept "weapon" to "a part of a weapon, in itself non-noxious, for subsequent assemblage on the fairgrounds into a weapon" to reach the result he did. For Llewellyn, this would not be, strictly speaking, rule application. Rather, it is an instance of the "automatic" or "immanent" expansion of word content, automatic or immanent because virtually any jurist in that society would certainly, unhesitatingly, have made exactly the same expansion as that of the sitting judge. 125 But while even though such a case technically constitutes an instance of "expanding" rather than "applying" a rule of law, Llewellyn recognizes that cases of automatic or immanent expansion are "very similar" to cases of rule-applying. 126


Now when Crusaders started to come back from the wars in the Levant, they brought back with them, as trophies, two-headed axes, reportedly used by their distant enemies in close fighting and hand-to-hand combat. Axes, single-headed, were of course known in Albion, but had only ever been used by the [*738] peasantry, i.e., not by the aristocracy that primarily made up the military caste, and then mostly for homely tasks like chopping firewood. 127 But two-headed axes had previously been unknown in Albion.


While stories of axe-to-sword combat were making the rounds, two more prosecutions were brought under the anti-weapons ordinance. One involved an aristocratic Crusades veteran who was prosecuted for carrying a two-headed axe, bronzed and mounted on an oaken plaque as a trophy, across the fairgrounds on a fairday en route to a noble kinsman''s manor. The other was brought against a peasant who, on a day when the fair was not in session, crossed the fairgrounds with a single-headed axe bound for the forest to chop some firewood, as was his customary right. What lay behind both of these rather odd prosecutions was that the defendants had each done something to earn the enmity of the sheriff, a powerful personage in the county. (The veteran''s fault was having been born into a rival clan; the peasant''s fault was his failure once to tug his forelock with sufficient alacrity.) Hence the sheriff, establishing a long prosecutorial tradition, now sought to use a criminal statute containing colorably open language to get back at people he did not like.


The prosecution of the veteran was dismissed, while that of the peasant was successful. Both situations presented what Llewellyn would later call "trouble-cases" 128 because the exact bearing of the anti-weapons ordinance on the facts of each was unclear, at least at the outset of the litigation. In the veteran''s case, while the court acknowledged that two-headed axes had indubitably been used as weapons in another society, it gave greater weight to the mounting and bronzing of this two-headed axe as a trophy, indicating to the court a clear pacific intent which effectively rendered it "not a weapon," even though the [*739] axe was easily dismountable and the bronzing did not in any way dull its cutting edges. In the peasant''s case, decided that same day, the judge ran through the standard workaday uses of single-headed axes in Albion, noting that combat was not typically among them, but ultimately deemed that consideration overborne by three factors: the mere possibility that a single-headed axe could have injurious consequences comparable to those of the more widely recognized weapons; the fact that single-headed axes had been so used in a small number of reported peasant conflicts; and the lack of any clear indication of pacific intent with regard to the axe''s use. Hence, it found that the single-headed axe "was a weapon" within the meaning of the rule and fined the peasant accordingly. Naturally the class origins of the defendants had nothing whatsoever to do with the respective outcomes.


Firmly believing he had been called on merely to "apply" a law he did not make, the judge''s bewigged head lay easy that night, savoring the clear conscience afforded by the proto-Nuremberg defense that would prove so popular down through the years with most of his black-gowned successors: "I was only obeying orders." So he thought as he finally nodded off, sleeping the sleep of the just.


Whatever their intrinsic merits, the holdings that the two-headed axe "was not" a weapon while the single-headed axe "was" a weapon within the meaning of the fairgrounds weapon ordinance are each instances of "hidden" expansion of a rule in a "doubtful" case. 129 In the peasant''s case there has been an expansion rather than an application of the rule for the same reason as in Hood: single-headed axes were not within the contemplation of the lawgiver when the rule was enacted. Hence, a finding that such an axe "was" a weapon necessarily expanded the rule''s content. The expansion is effectively "hidden" from posterity by the subsumption of a new implement, the single-headed axe, under the old familiar term "weapon":


We regard language as if words were things with fixed content. Precisely because we apply to a new fact situation a well-known and familiar [*740] linguistic symbol, we lose the feeling of newness about the case; it seems long familiar to us. The word hides its changed meaning from the speaker. What political innovation cannot be introduced, provided that it is presented behind the mask of a familiar, acceptable linguistic symbol? Although in the law such innovation usually occurs on a smaller scale, this should not obscure the fact that the process is the same. 130

Words, thus, are basically stereotypes with territorial ambitions.


In the veteran''s case the judge declined to expand the rule. Again, the rule has not merely been "applied" or "interpreted":


If the new case is brought under an old category, the category thereafter is broader than it had been. But if the new case is excluded, the category has acquired a more determinate boundary where earlier its boundary was uncertain and there was still the possibility of its extending to cover this or a similar case. Whichever way the decision goes, the [word-]symbol thus acquires a new content. It refers either to the new along with the old or, more narrowly limited, to the old alone. 131


e. Arts and Crafts: Lawman''s Intuition and the Big Lie


The nature of language and its hospitality to dissembled semantic change explain how, mechanically, change can be accommodated by the institutional propaganda of a system obsessed with stasis. But before ever reaching that stage (the opinion-writing stage), a judge will first have had to mull a proper outcome for the new case, for a dispute that arises in life''s "growth zone," some new problem thrown up by the struggle of social groups and insisting on legal resolution. 132 Faced with this novel concatenation of circumstance, the judge must step into the void and, wittingly or not, choose whether to expand an old rule to cover the new case or refuse to expand it. 133 How does he make the choice, given that the rule itself is agnostic on the issue presented?


Llewellyn identifies two factors that bear on the judge''s excercise [*741] of free choice. The first of these inclines toward conservativism: "the traditional way the law is handled, the operating technique of the trained lawyer as passed down to him . . . practice, not norm; way of acting, not verbal formula." 134 From legal rules that "really do not cover the case" 135 the judge has learned to derive


guidelines . . . which will bring the solution of the new case into harmony with the essence and spirit of existing law. It is precisely this art of solving the new case . . . that ensures the continuity of the judicial decisions of a particular time with prior law. . . . [T]he freest judge''s space for movement continues to grow smaller, and must remain so. The constraints and socialization resulting from his membership in society and from his legal training guarantee the continuity of decisions, the continuity of legal norms, and the predictability of the "freest" decision making. 136


[*742] Furthermore, one cardinal value a judge will certainly have absorbed from the legal environment, if only by osmosis, is the systemic preference for incremental over radical change, for movement a bit at a time along an emerging path of development. 137 These sociological factors obviously help to account for the high degree of predictability that obtains over the general run of cases.


But what of the "always unpredictable" individual case? Cohabitating uneasily in the judicial soul with the genius of conservatism is the irrepressible daemon of subjectivity and its name is intuition 138 or "fact-guided decision." 139 Llewellyn thus telescopes a description of its workings and an explanation of [*743] how it gets camouflaged:


If one observes a new fact situation and is sensitive to its real-life meaning, then there is a sudden and (so to speak) ex post facto change in the meaning of one''s prior life experience in that area, and thus a change of content in the words used to describe and regulate the area. . . . [T]he new illuminates and at the same time changes the old. The "intuition" in this process lies in the judge''s subconsciously using his prior experience and his sensitivity to the meaning of new fact situations. When a judge fails to reinterpret the law soundly, it is almost always because he lacks this sensitivity. He sees the new well enough with his eyes, but fails to see what it means. This lack of sensitivity is almost entirely due to a lack of those experiences that might have permitted him to recognize what the new facts mean. A judge''s intuition extends only as far as his experience and sensitivity. 140

He goes on, in his most radical vein:


If a decision is rendered [intuitively], one sees the following sequence of events: (a) understanding the facts; (b) deciding on the basis of the facts ("the outcome must be this way"); (c) searching for a legal justification; (d) writing an opinion which contains a justification, a construing of rights. In such cases, the construction is purely a means to an already determined end. One collects the rules needed for a justification, twisting and turning them until they seem to yield the result already decided upon. . . . If a judge is "tempted" even once to let facts guide his decision, he will see how unexpectedly fertile legal concepts and ideas are. 141

Indeed, attorneys who develop an understanding of the mindset of the judges with whom they deal, of how intuitive and insightful about social phenomena they are, will have a leg up on those who only believe in legal certainty of the old-fashioned deductive kind. While complete legal certainty is unattainable, those lawyers who recognize intuition as a factor in adjudication and who have a sense of when a particular judge''s intuition, rather than his merely deductive powers, will be brought to bear to resolve a legal question, will be able to achieve a much greater degree of legal predictability than their fellows. 142


But why do the warring passions in a judge''s breast, technique and intuition, not lead to a stand-off, or to victory for one and retreat for the other? How is it that adjudication devolves [*744] neither into rule-captivity nor impressionistic caprice? If this "mixed" system of decisionmaking has not yet spiralled out of control, if the center holds, it is because mediating between "fact-guided decision" and tradition is self-delusion:


Perhaps [conscious awareness of judicial freedom] would be a gross political error. Perhaps legal training could no longer rein in a judge who knows where he stands. Perhaps the continuity in case law decision making as well as the constraints of taking one''s directions from a statute would dissolve if a judge were to lose the belief that he was tied to one spot. Perhaps he must believe he is obeying in order to be a wise commander. . . . We do not wish to make our judges into law-givers on the scale of the legislature: perhaps we best achieve this by denying that judges actually have what is in fact the indispensable power to create law for specific cases -- thereby inducing them, as far as possible, to exercise this power blindly, because unconsciously. 143


Coming from anyone else, this might sound like the basis for an exceptionally cynical judgment. But all these factors working in tandem lead Llewellyn rather to the optimistic assessment that, on the contrary, the judicial system is basically working quite well. Most judges proceed gingerly, taking baby steps within the area roped off by rules and guidelines. The great judges -- the Holmeses, the Mansfields, the Cardozos, the Scruttons -- are more insightful than their run-of-the-mill brethren, able to take bolder, more far-reaching strides that promote the sound development of the law and to monitor the pace of legal change, making certain that one social group is not unduly harmed or benefitted. 144 And when one of the Bench''s lesser lights gets a cockamamie idea or when even great Homer nods, the system has a self-cleansing mechanism:


To see an author''s name right at the beginning of an opinion is both meaningful and extremely helpful[.] A certain judge''s opinions may be dubious, his dicta dismissed, his experiments regarded with the greatest skepticism, his utterances construed narrowly. Another judge''s opinions may be acute and insightful, his dicta more valuable than many people''s decisions, his intuition prophetic, his formulation of rules well considered and confident. A leading judge thereby achieves greater esteem and, above all, far-reaching influence. The notation of who the author was has repeatedly been decisive for the law''s formation [*745] in other states or in later times. This naturally is not without its dangers. "It seems to be the prerogative of a lofty mind not only to enlighten by its wisdom, but to enslave by its authority." But even the very greatest cannot ultimately prevail with their errors, while their names give their happy insights the strength to secure the public good. 145


Llewellyn concludes Prajudizienrecht with the following passage, pointing the way to the concerns of the work that was shortly to follow:


Admittedly [Prajudizienrecht''s] exclusive focus on appellate court decisions and legal rules plays into the lawyer''s peculiar prejudice that these decisions are precisely what matters, in and of themselves, regardless of the effects they may have on the society from which they spring. But perhaps it is precisely here that hope lies. Once we get to thinking about what these legal rules really are, what their meaning really is, what the nature even of supreme court decision making is, then we must already be drawing closer to Life and finding in ourselves the urge to obtain more firsthand knowledge about the whole purpose of law, its utility to society in general. But once our legal fraternity feels this urge within it, the smaller problems -- like questions about the nature and growth of precedent -- will be solved through a new wealth of illuminating facts. 146

B. Recht, Rechtsleben und Gesellschaft: World Within World


The argument of Prajudizienrecht was largely negative, seeking to demonstrate the inadequacy of the deductive theory of decisionmaking and to demolish the logical pseudo-science of law. It was also a somewhat inward-looking book, concerned mainly with the internal dynamics of case law. By contrast, Recht, Rechtsleben und Gesellschaft is a work far broader in scope. If the earlier book attempted to persuade lawyers that sociology had much to say about the law, Llewellyn''s second Leipzig book made the complementary but more sweeping claim: a study of law had much to tell sociologists about society.


1. Scienza Nuova


Llewellyn''s aim in these lectures on law and society is to inaugurate a true science of law, a "natural" or "social" science [*746] along modern empirical principles. 147 He is quick to recognize, however, that the sociology of law could not yet yield much of anything definite, as it was "a downright unexplored field" [ein geradezu unerforschtes Gebiet]. 148 The lack of basic research, with a limited (if growing) number of exceptions, meant that there was no body of established facts to work with. Indeed, even with such acknowledged giants in the field as Max Weber and Eugen Ehrlich, one was dealing not with factual authorities but only with the insights of thinkers of genius. Hence, Llewellyn sees himself as a kind of Moses on the marches of Canaan, providing only "a glimpse of the Promised Land," 149 aspiring merely to "open up" 150 the field of legal sociology, to offer it a possible program. He wished to speculate about what a fully developed sociology of law might one day have to offer, tentatively proposing a few daring hypotheses and "fantasies" [Phantasiegebilde] 151 about the way legal sociology might eventually organize its observations of the "life of the law" in the context of the larger society.


In presenting his program for legal sociology, Llewellyn first provides a schematic genealogy of the sciences in general and insists on a number of key distinctions. Every branch of knowledge, he maintains, starts out not as a science [Wissenschaft] 152 but as a practically useful real world skill [praktische Lebenskunst], 153 a livelihood, a group of interrelated actions [Hand-lungs-gefuge] 154 that comes into being because people have had some job to do. "The Law" encompasses a number of such skills: judging, advocacy, counselling and the like. These practical skills focus on the short term, on getting a job done.


From these occupations there slowly arises a "philosophy" of a sort, one that often owes its origins either to the reflective musings of ne''er-do-wells or malcontents on the significance of their occupation, or to an incipient system of instruction in practical skills. Such reflections generally lead to attempts to [*747] draw together everything theretofore learned about a particular branch of knowledge, to a "science" in the old-fashioned sense of the term, a somewhat organized collection and classification of prior knowledge, but one that jumbles knowledge with beliefs, with value judgments and prejudices, a "quasi-science." This philosophy coexists with, but does not supplant, the skills by which people earn their living. 155


Some branches of knowledge, including law, also come to develop what probably can best be described as "doctrine" [Dogmatik]. 156 The precondition for the development of doctrine is some recognized authoritative document, a holy book -- a set of scriptures, the Church Fathers, the German Civil Code of 1896 -- containing fixed, mandatory language that prescribes rules for living and that brooks no dissent. The function of doctrine is to use these words to devise "correct" solutions for real-life cases. In law doctrine has the obvious value of instructing the all-too-human judge to let the law (not the judge) decide, so as to ensure that like cases are treated alike, a universal desideratum. Yet be it legal doctrine, theology or casuistry, all have one thing in common: not only do they purport to be the "proper" norms to follow, they also represent themselves as the norms that are actually being followed. Normative statements tend to glide over into empirical statements, an impermissible expansion of doctrine beyond its proper limits. 157


While law certainly needs doctrine, doctrine, over time, has a way of hogging the spotlight. When legal doctrine makes the unsupported assertion that its norms are the ones actually being followed, it arrogates to itself the role proper to yet another species of "law," one existing alongside the art, the philosophy and the doctrine: a "science" of law in the modern sense of a descriptive or empirical science [Seinswissenschaft, Erfahrungswissenschaft], 158 the task of which is the slow and painstaking accumulation of facts, a science that, additionally, must forswear value judgments so as not to distort the accuracy of its observations. To Llewellyn, the development of this scientific attitude is perhaps the highest accomplishment of the modern age, one that [*748] has led to enduring progress in all fields where it has been introduced. 159


The enthusiasm of his panegyric notwithstanding, Llewellyn is hardly a naive cheerleader for the scientific ideal. For he also displays a sophisticated understanding of modern science''s epistemological problems. He recognizes, for example, that even a descriptive science is not exactly value-free. Its values are rather of a different sort: a responsibility only to facts; a skepticism about assumptions; a refusal to accept anyone''s authority without proof; a need for results verifiable by others. He also freely admits that the way in which science poses a question and the particular conceptual abstractions the scientist uses to divide up his perceptions of raw existence will naturally determine both what is observed and how the observer sees it, i.e., the problem that a modern philosopher of science has described as the "theory-laden" character of scientific observations. But at least this sort of science strives to be consciously aware of its own limitations, thus allowing for correctives to such distortions. 160


With all its shortcomings, this is the model of science Llewellyn embraces for the sociology of law. This is, however, precisely the sort of science that has, for the most part, 161 been conspicuously lacking in the law:


I would maintain that in this topsy-turvy world the central problem of all of law has to do with this still almost completely neglected descriptive [*749] science, with this "legal sociology," this natural science of living law [Naturwissenschaft des Rechtlebens]. What we need to study, what we must know, is not how a legal rule reads, nor how a philosophically correct rule would read, but what the legal rule means. Not in its "intended sense," and not in the clouds, the heaven of legal concepts, but in human experience. What happens in life with it? What does a law mean to ordinary people? If ever it was enough, today it surely is not enough to set up an "ideal" norm and, whenever anything is found wanting in its "interpretation," to attribute it, with a shrug, to human weakness. In Life, Law means what Law delivers [Im Leben edeutet Recht, was Recht leistet]; no more, no less. 162

Llewellyn of course knew that legal sociology was not "the law." 163 He states, as he generally did in such contexts, 164 that he has no wish to supplant any of the other approaches to law, including the doctrinal, with his sociological approach. "It is not that words are unimportant, but that actions have been neglected." 165 Given their history of prior neglect, he believes he must now overemphasize them even at the cost of creating a caricature, a depiction that at least is very easy to understand. 166


Yet the focus of the impending scientific inquiry into "what law meant in real life" and into "what law delivered" still needed considerable sharpening. Which slice of life was to be considered? How, in fact, would "law" be defined for purposes of sociological study? Llewellyn rejects as unusable the Historical School''s 167 and Eugen Ehrlich''s 168 virtual identification of law [*750] with custom: were one to focus on "customary" behavior, this would leave nothing left to distinguish a sociology of law, of distinctively legal behavior, from sociology tout court. 169 Instead, he considers the approach of Max Weber, who, viewing law as a separate subsystem [Sondersystem] within society, focused his attention on the activity of a separate "law staff" [Rechtsstab], i.e., legal officialdom, the law''s enforcement personnel in the widest sense of the phrase. He quotes with approval Weber''s definition of law: "A [social] ordering should be called . . . law if it is externally guaranteed by the chance of (physical or psychological) compulsion through the activities of a staff of men who expressly focus on such matters directed at producing its observance or punishing its violation." 170 But Llewellyn''s reaction to this definition was not uncritical; he had a number of reservations. 171 He thought, for example, that the "staff" under consideration [*751] should be limited only to the law staff set up by the State 172 and the relevant activities only those directed toward dispute resolution or aimed at "channeling" people''s behavior in a particular direction. 173


But thus qualified, Llewellyn essentially adopted Weber''s discrete focus on the activities of the law staff 174 as his own definition of "law" for purposes of legal sociology, that is, "law in action" 175 or "law in fact." 176 This was decidedly not a definition of narrow interest only to specialists in the sociology of law; it was this very same "law-in-fact," rather than law-in-books, that was of greatest moment to practicing attorneys. Furthermore, the definition highlighted the opposition between law as "observable behavior," Llewellyn and Weber''s usage, and law as "intended meaning," "rule," "ideal," "normative concept" and "explanation by the court," the latter all typical elements of traditional definitions of law. 177 All these surely existed and might influence the law staff''s behavior, but they were phenomena of a second order.


Thus defined, it further became clear that a descriptive science of "law-in-action" is not, and cannot be, an abstract intellectual [*752] discipline [Geisteswissenschaft]. Rather, it is and must be a social science. 178


2. Have We Been Regular?


Llewellyn now poses a question that he had earlier broached in Prajudizienrecht: can any sort of "regularity" 179 -- typically viewed as a hallmark of a legal system, in contradistinction to arbitrariness -- be found in the law staff''s actions? If regularity can be found, how can its presence be accounted for?


One infallible test that Llewellyn believed would demonstrate the presence of such regularity is if a trained lawyer, aware of the facts and circumstances of a case, is better able to predict its outcome than an otherwise equally capable layman. Clearly the answer is yes. Note that this does not mean the lawyer will be able to predict the court''s asserted basis for the outcome, the "rule of law" on which it rests its decision, but only that, compared to a layman, a lawyer will be more likely to divine the ultimate upshot. But it is equally clear that this regularity comes coupled with some quantum of irregularity. Even a good lawyer cannot make predictions with 100 percent accuracy, and two good lawyers frequently disagree in their predictions. Thus, there is indeed regularity in the system, but much less than legal textbooks would have us believe. The precise amount of regularity cannot be studied as a general proposition, but only area by area and fact situation by fact situation. 180

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