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Michael Ansaldi *: THE GERMAN LLEWELLYN(三)

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Michael Ansaldi *: THE GERMAN LLEWELLYN(三)


?.2 The expenses of printing will be borne by the Faculty.
Llewellyn Papers, University of Chicago.


n34 This publishing company no longer exists, having permanently disappeared from the relevant book listings some time during World War II. This is doubtless not unconnected to the fact that "Weicher" is a Jewish surname.


n35 The copyright was registered in the United States on January 9, 1933, but was never renewed or assigned. Ex rel. Paul Gewirtz, Professor of Law, Yale University.


n36 "German jurisprudence is very much in the esteemed author''s debt for considerably expanding its horizons in this work, the finest product of contemporary American scholarship." H. Wustendorfer [Professor of Law, U. of Hamburg], Book Review, 7 ZEITSCHRIFT FUR AUSLANDISCHES UND INTERNATIONALES PRIVATRECHT 739, 742 (1933). H. v. Mangoldt [Lecturer in Law, Univ. of Konigsberg], Book Review, 27 ARCHIV FUR RECHT UND WISSENSCHAFTSPHILOSOPHIE 304, 305 (1934):


The author has really been splendidly successful in bringing the features of this American system of precedent closer to German lawyers. . . . I regard the first part of this book, in which the author gives a connected, extremely interesting presentation of the American case law system, as that to which German readers will pay greatest attention.


n37 The author''s translation of Books One and Two, or Part One of the entire work, was published in 1989. See supra note 3. Professor John Dawson of Harvard Law School had translated ten sections of Book Two, which were privately printed in 1951 for use in a law school course he taught.


As far as can be ascertained, Llewellyn wrote the original text of PRAJUDIZIENRECHT in German. This conclusion is buttressed by several considerations. First, Llewellyn was basically fluent in German. See supra notes 9-14 and accompanying text. Second, the Llewellyn papers at the University of Chicago contain no trace of an English original of the text, only a few scattered English-language notes outlining the work''s subject matter. Third, in his introduction to the book, Llewellyn thanks two people for their "painstaking linguistic working-over" [sorgfaltige sprachliche Durcharbeitung] of the text, a phrasing that suggests the editing of a text already written in German rather than a translation into German of an English original [Ubersetzung]. PRAJUDIZIENRECHT, supra note 3, at viii. In that same introduction, Llewellyn speaks of "translation" exclusively in the context of the cases and materials, Book 3, but never in the context of those portions of the book he himself wrote. Finally and most importantly, in a handwritten note on a 1939 letter sent to Llewellyn to inquire whether an English translation of PRAJUDIZIENRECHT existed, Llewellyn wrote: "No. But much of the point of view of some of the theory is developed in June ''38 - Nov ''38 Yale L.J. And more in Mar. - April ''39 Harv. L. Rev. Sorry -- KNL." This letter is in the Llewellyn papers. (The articles to which Llewellyn is referring are respectively: The Rule of Law in Our Case-Law of Contract, 47 YALE L.J. 1243 (1938); On Our Case-Law of Contract: Offer and Acceptance, Part I, 48 YALE L.J. 1 (1938) and Part II, 48 YALE L.J. 779 (1939); Across Sales on Horseback, 52 HARV. L. REV. 725 (1939); and The First Struggle to Unhorse Sales, 52 HARV. L. REV. 873 (1939). It is difficult to believe that if an English text existed, Llewellyn would not have sought to have it published, particularly in light of how anxious he was for the book to be reviewed by American and English law reviews and social science periodicals. See infra note 38.


n38 The Llewellyn Papers contain copies of letters by Llewellyn to numerous law reviews and social-science periodicals requesting that the book be reviewed.


n39 Fuller, supra note 14, at 551.


n40 Lon Fuller, American Legal Realism, 82 U. PA. L. REV. 429 (1934).


n41 Id. at 430.


n42 Rheinstein, supra note 1, at 604.


n43 Ex. rel. Matthias Reimann, Professor of Law, University of Michigan, Ann Arbor. One possible reason for this may be the improvement in German lawyers'' English language skills since Llewellyn''s day, such that original materials, by which Llewellyn set such great store, are now accessible to a far greater number of Germany lawyers. The contents of Prajudizienrecht will be discussed in Part II.


n44 To the works mentioned in the main text might be added Llewellyn''s fantasmagorical What Price Contract? -- An Essay in Perspective, 31 COLUM. L. REV. 704 (1931), which grew out of a commission he received to write the "Contracts" article for the ENCYCLOPEDIA OF THE SOCIAL SCIENCES. The editor of the Encyclopedia was unsatisfied enough with Llewellyn''s essay, which he charitably dubbed "impressionistic" --wildly undisciplined would be nearer the mark -- that he sought to enlist Roscoe Pound''s help in getting the article into a shape more suitable for an encyclopedia. See Prequel, supra note 18, at 1327-33. The failure of the Llewellyn-Pound collaboration on the "Contracts" article has been highlighted by Professor Hull as one of the significant factors in the background of the Llewellyn-Pound debate. Id.


n45 Prequel, supra note 18, at 1324 & n.109; TWINING, supra note 1, at 346.


n46 KARL LLEWELLYN, BRAMBLE BUSH vii (Oceana Pub. 1960) (1930) [hereinafter BRAMBLE BUSH].


n47 Rehbinder, Editor''s Introduction, supra note 11, at 11.


n48 KARL LLEWELLYN, CASES AND MATERIALS ON THE LAW OF SALES (1930) [hereinafter SALES CASEBOOK]. Twining describes it as "a work of profound scholarship and originality . . . generally recognized as a landmark in the history of the American casebook." TWINING, supra note 1, at 131. Kalman, while noting the book''s "strong impact" and "striking features," notes that, in at least one respect, it failed to deliver on one of Llewellyn''s (and Realism''s) promises:


In retrospect, it appears that candor was the major difference between the realists'' and the traditionalists'' approach to the social sciences during the 1930''s. The conceptualists did not pretend that they were integrating law with the social sciences; the realists did. Although Llewellyn indicated in the introduction to Cases and Materials on the Law of Sales that he had drawn on modern psychology, experimental logic, social psychology, anthropology, and sociology, most of his annotations discussed business practices without using material from any of the social sciences to explain their significance.
KALMAN, supra note 16, at 79, 92.


n49 The symposium, in which the other participants were Mortimer Adler and Walter Wheeler Cook, appears in the Columbia Law Review. Legal Certainty, 31 COLUM. L. REV. 82-115 (1932).


n50 See infra text accompanying note 103 & 254-56.


n51 Next Step, supra note 21, at 431.


n52 [T]here is a battle raging in the United States between the purely deductive theory and the position espoused here, which, it seems to me, is truer to life. I am in the middle of this battle and can free myself from it only with difficulty. . . . [E]ven when writing in a foreign language, [a foreigner] may remain stuck in the quarrels of his homeland; for that, however, he craves indulgence, and especially understanding.
CLSA, supra note 3, at xxxvii.


n53 For the details of the Llewellyn-Pound debate, see infra text accompanying notes 231-48.


n54 Llewellyn describes the origin of the book as a Kolleg [course of lectures] as opposed to a Praktikum. RRG, supra note 3, at 19.


n55 Rehbinder, Editor''s Introduction, supra note 11, at 9.


n56 Sharp Letter, supra note 24, at 1.


n57 RRG, supra note 3, at 20.


n58 Even when lecturing in German, of course, Llewellyn remained Llewellyn: not content with neologism in English, he coined two words in German, Trecht and Handle, reportedly being disappointed when the former did not catch on. Rehbinder, Editor''s Introduction, supra note 11, at 8. Rehbinder does not mention the reception given to Handle, but it is hard to imagine it was any more favorable. On the meaning of these coinages, see infra notes 176 & 199.


n59 The universities at which he delivered these guest lectures included Frankfurt, Heidelberg, Bonn, Freiburg, Berlin, Breslau, Kiel and Jena. Frankfurt even offered him a position on its faculty. Rehbinder, Editor''s Introduction, supra note 11, at 12. One of Rehbinder''s informants, Ernst E. Hirsch, recalled the "lively impression" Llewellyn had made during a guest lecture in Frankfurt in 1931. Id. at 8. At a program of the Comparative Law Section of the Association of American Law Schools'' Conference on January 6, 1987 Professor Stefan Riesenfeld of the University of California-Berkeley spoke of his own encounter with Llewellyn from this period.


n60 The great commercial lawyer and comparativist Ernst Rabel invited Llewellyn to Berlin and obtained his agreement to be an adviser to the International Institute for the Unification of Law ("UNIDROIT") on its project of unifying international sales law. Rehbinder, supra note 11, at 12. Llewellyn attended a meeting connected to the project in Rome in 1932, which he found "interesting. laborious. unpractical." TWINING, supra note 1, at 108. Before this project could ever reach completion, Llewellyn became involved with the effort to unify American domestic sales law, resulting in article two of the Uniform Commercial Code. The international project, interrupted by World War II, only reached fruition in 1980 with the United Nations Convention on Contracts for the International Sale of Goods, also known as the Vienna Convention, which became law in the United States on January 1, 1988. U.N. Doc. A/CONF. 97/18/Annex 1 (1980) reprinted in 52 Fed. Reg. 6264 (1987) (U.N. certified English text).


Other scholars whom Llewellyn met or with whom he deepened his acquaintance during this period included Nussbaum, Kantorowicz, Koschaker, Jahrreis, Mitteis, the criminologist Exner and the sociologist Freyer. Rehbinder, Editor''s Introduction, supra note 11, at 12. Among the most affecting items I encountered in the Llewellyn papers was a series of letters from Arthur Nussbaum, a German Jew, written after Hitler came to power, seeking Llewellyn''s help in getting out of Germany. He first escaped to Holland and later, with Llewellyn''s help, obtained a position on the Columbia faculty.


n61 CLSA, supra note 3, at xxxvii.


n62 See MARY FULBROOK, A CONCISE HISTORY OF GERMANY 176 (1990).


n63 Rehbinder, Editor''s Introduction, supra note 11, at 9.


n64 For the circumstances of Rehbinder''s involvement with the manuscript, see id. at 8-9.


n65 Recht, Rechtsleben und Gesellschaft will be discussed in conjunction with Prajudizienrecht in Part II.


n66 See supra notes 27-28 and accompanying text.


n67 See supra notes 26-28 and accompanying text.


n68 CLSA, supra note 3, at 1.


n69 See, e.g., id. ?62, at 73. Llewellyn was naturally arguing neither for case law as a replacement for codification, nor vice-versa, but only for the merits of each methodology as embodying a set of supplementary techniques extremely beneficial to the sound development of legal systems that were each increasingly becoming mixed in character.


n70 Id. ?40, at 48-49.


n71 Id. ?40, at 48-50.


n72 Llewellyn''s catalogue of shortcomings can be found in CLSA. Id ?40, at 47 n.2.


n73 See Id. ?73.


n74 Id. ?63, at 90.


n75 Id. ?74, at 113; cf. id. at xxxv ("an anthropological presentation").


n76 Id. at xxxv.


n77 PRAJUDIZIENRECHT was apparently sold in two separate parts, Part One (consisting of Books One and Two) and Part Two (consisting of Book Three).


n78 Book One is presumably based on, if not identical to, a 51-page pamphlet Llewellyn apparently gave his Leipzig students in 1928-29. See WILLIAM TWINING, THE KARL LLEWELLYN PAPERS 48 (1968) (giving as item number 17 in the bibliography of Llewellyn''s published works: "Einfuhrung in das amerikanische Prajudizienrechtswesen [Introduction to the American Precedent System] (for use at Leipzig University), Altenburg, Thuringen, Oskar Bonde (1928), 51 pp."). Book One is approximately the same size, taking up 46 pages in PRAJUDIZIENRECHT. Furthermore, at the end of his Preface to the latter, Llewellyn indicates that Book One was completed in 1928. CLSA, supra note 3, at xxxvii.


n79 Id. ?4, at 3.


n80 Id. ?8, at 8.


n81 Id. ?8b, at 11.


n82 Id. ?40, at 47.


n83 See Llewellyn''s "rallying cry" at the end of Book One, "ON TO THE CONCRETE MATERIALS! [HERAN AN DEN KONKRETEN STOFF!]," CLSA, supra note 3, ?39, at 46, and PRAJUDIZIENRECHT, supra note 3, at 46; and his language at the very beginning of Book Two: "Now that readers have before them a number of specific decisions I can refer to and now that they can test and check my assertions against them. . . .", CLSA, supra note 3, ?40, at 47; see id. ?40, at 48 n.2. ("The conclusions drawn really need to flow from Part II''s cases and materials themselves once one has seriously set about working through them.").


The published translation does not reproduce these cases, but provides a list of the cases referenced, together with citations, for American readers interested in pursuing them further. See infra text accompanying notes 91-97 (discussing Llewellyn''s selection of cases). Llewellyn obviously thought that Books One and Two were capable of standing on their own, inasmuch as he acceded to their publication separate from, and in greater quantities than, Book Three (the cases and materials).


n84 With regard to the "anthropological" character of the work, Llewellyn had stated in the Introduction:


As befits an anthropological presentation . . . I hope that the [cases and] materials themselves will enable the reader to make independent criticisms of my conclusions, and, where needed, even refute me with my own evidence. For the primary aim of this work is to observe, and to describe what it observes; it seeks to present American case law at the appellate-court level as it is, the dispiriting along with the inspiring.
CLSA, supra note 3, at xxxv. Significantly, Llewellyn''s first citation in Book 2 is to BRONISLAW MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY (1926). CLSA, supra note 3, ?40, at 47 n.2.


n85 Id. at 1.


n86 Id. at xxxiii (original emphasis omitted).


n87 Id. at xxxiv.


n88 Id. ?40, at 49 n.4.


n89 Id. ?39, at 46 (omitting internal cross-references). Compare BRAMBLE BUSH, supra note 46, at 74.


n90 CLSA, supra note 3, at xxxiv-xxxv. Still Llewellyn thought that his principles of selection for the cases -- the fact that they "embody something of formal significance to our case law system, or illustrate a recurrent topic (how statutes are treated) or a recurrent process (how an outmoded rule gets preserved or expanded, whether to base a decision on a broader legal ''institution'' instead of a narrow legal rule, etc.)" -- were "neutral or varied enough to come close to a ''natural'' selection of cases." Id. at xxxv.


n91 See id. ?63, at 90-91.


n92 See Karl Llewellyn, Jurisprudence Lecture, May 6, 1953, at 2 (Llewellyn Papers, University of Chicago). I am grateful to Professor Natalie Hull of Rutgers-Camden for drawing my attention to this lecture.


n93 CLSA, supra note 3, at xxxv.


n94 Id. at xxxiii. New York cases were emphasized in order "to show how a single court in a single state invokes a variety of formal doctrines while in practice reaching the same outcomes." Id.


n95 SALES CASEBOOK, supra note 48.


n96 See, e.g., PRAJUDIZIENRECHT (Part 2), supra note 3, at 117-18 & 280-83 ("The substantive law of the seal" and "Bona fide purchase for value at Law"). Llewellyn used materials appearing in his casebook on the law of sales, see SALES CASEBOOK, supra note 48, at 340-43, as his introduction to a group of cases on consumer protection. PRAJUDIZIENRECHT (Part 2), supra note 3, at 156-62.


n97 There are also three appendices to the work. In Appendix I, "Frequency test on the day-to-day work of a number of appellate courts," PRAJUDIZIENRECHT (Part 2), supra note 3, at 343-46, Llewellyn analyzes the work product of the appellate courts published in volume 155 of the Northeastern Reporter, providing statistics on the number of reversals and affirmances, dissenting votes and opinions, and separate concurrences. In Appendix II, "On the Zeiler-Blomeyer-Gerland Precedent Bill," id. at 347-50, Llewellyn expresses a generally positive reaction to draft legislation that proposed to allow individual panels of the German Supreme Court, whenever they so chose, to issue formally binding rules of law in their particular areas of expertise. Finally, in Appendix III, "Some recent literature on the precedent system," id. at 351, Llewellyn included a short bibliography of English-language materials. An English translation of Appendix II appears in CLSA, supra note 3, at 115-18.


n98 CLSA, supra note 3, ?40, at 47-48 (footnote omitted).


n99 See generally Thomas C. Grey, Langdell''s Orthodoxy, 45 U. PITT. L. REV. 1 (1983).


n100 Besides the allure of "scientific" status, another appeal of a rule-based theory of adjudication was that it provided a mitigation, of sorts, of the questionable legitimacy under democratic theory of a partly unelected and largely non-accountable judiciary. If judges were bound to follow rules, they therefore were at least not wielding arbitrary power, a minimum requisite for a state based on law. One could, with a bit of squinting, see a kind of diachronic democracy at work in the way legal rules evolved over time, the dialogue between modern judges and their predecessors carried on in the various lines of cases, embracing the democratic process values of argument and persuasion and often yielding as its rules a kind of majoritarian consensus, "the weight of authority."


n101 The statement in the text is somewhat hyperbolic. Even under syllogistic theory, there would still be a need for courts of first instance to exercise a fact-finding function when disputants disagreed on what had happened. Still, the demotion is not inconsiderable: from lawgivers to detectives. Furthermore, for dim-witted attorneys recourse to the judicial process would continue as before.


n102 Llewellyn concedes that a deductive description of what actually takes place in the decision-making process may well be appropriate for a class of controversies that he appears to regard as numerically insignificant: those with facts that are truly "on all fours" with those of a prior case in every significant respect. This class of cases is numerically insignificant because Llewellyn defines "on all fours" quite narrowly. To him, it implies not just the same material facts but also the presence of an unchanged social setting against the background of which the facts of each occurred. When such cases are brought to court, Llewellyn is prepared to grant that deduction and syllogism are accurate accounts of the judicial process. Still, in such situations, the case is only brought to court because of the incompetence of the attorneys in failing to recognize the truly "applicable" rule that covers and should have led to an out-of-court settlement of the dispute. See CLSA, supra note 3, ?42, at 56 n.11 & ?54, at 75.


n103 Id. ?42, at 53. Cf. JEROME FRANK, LAW AND THE MODERN MIND 114-15 & 144-45 (Coward-McCann, Inc. 1949) (1930).


n104 See Fuller, supra note 14, at 551-52 (singling out Llewellyn''s treatment of separate opinions for special praise).


n105 CLSA, supra note 3, ?42, at 52-54. In his second Leipzig book, Llewellyn complains that the lack of the institution of separate opinions in Continental European legal systems makes it difficult to gauge the exact influence of legal rules. RRG, supra note 3, at 60.


n106 See supra text accompanying notes 78-81.


n107 CLSA, supra note 3, ?42, at 55 (footnotes omitted).


n108 Id. ?63, at 90-91. The magisterial division of the sheep from the goats described by Llewellyn is standard practice in many a law school classroom even today. The former are called into life eternal, the heaven of "correctly decided" cases; the latter, the "wrongly decided," go away into everlasting oblivion.


n109 See Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71 (1928). Oliphant was a colleague of Llewellyn''s on the Columbia faculty before the "deanship crisis." See supra note 21. Llewellyn thanked him in the sales casebook for "long-continued discussions . . . of analysis in terms of significant type fact set ups. . . ." SALES CASEBOOK, supra note 48, at xxiii.


n110 See MALINOWSKI, supra note 84.


n111 CLSA, supra note 3, ?40, at 47 n.2. Cf. Next Step, supra note 21, at 454 (describing "the work of a modern ethnographer" as "substitut[ing] painstaking objective description of practice, for local report of what the practice is, or for (what is worse) a report either of local practice or of local ideology pleasantly distorted by the observer''s own home-grown conventions").


n112 Id. ?63, at 93.


n113 Id. ?42, at 55 (emphasis added).


n114 Id. ?41, at 50 (footnote omitted).


n115 See supra text accompanying note 89.


n116 CLSA, supra note 3, ?56, at 78-79 & ?63, at 94.


n117 See id. ?8b, ?47, at 58-59.


n118 Id. ?42, at 56 (first emphasis added).


n119 H. A. GLEASON, AN INTRODUCTION TO DESCRIPTIVE LINGUISTICS 6 (rev. ed. 1961).


n120 See DAVID MELLINKOFF, THE LANGUAGE OF THE LAW 13 (1963).


n121 While these characterizations are generally true of legal language over most of the contemporary legal landscape in America, one area where they are much less true is in the writings of legal academics, where the common language frequently seems to have fissured into mutually incomprehensible dialects, melanges of standard legalese and pidgin economics, philosophy, social science etc. See generally David Barnhizer, The Revolution in American Law Schools, 37 CLEV. ST. L. REV. 227-69 (1989).


n122 The highly schematic hypothetical here developed, the author''s variation on a familiar pattern, see, e.g., H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958); Fuller, supra note 40, at 445-47, makes no claim to historicity, only to enough marginal verisimilitude to satisfy a not particularly demanding reader.


n123 The precise degree of abstractness implicit in the English word "weapon" is by no means semantically inevitable or a trivial linguistic datum. Latin, for example, has no word that quite matches the meaning of "weapon": telum, properly "weapon used for fighting at a distance," "missile," came by extension to signify "an offensive weapon of any kind." CHARLTON T. LEWIS & CHARLES SHORT, A LATIN DICTIONARY 1847 (1975). Its paired opposite, however, was the plural word arma, the original meaning of which, like the German Wehr, was "defensive armor," but over time it came to mean "implements of war . . . both of defence and offence (but of the latter only those which are used in close contest . . . in distinction from tela)." Id. at 162. Thus to the Romans the arrow and the spear would have been tela, the sword and the club arma. The more encompassing word "weapon," from a common Germanic root wepna(m), is apparently unrelated to other Indo-European languages, so its semantic history cannot be traced further back. See CARL DARLING BUCK, A DICTIONARY OF SELECTED SYNONYMS IN THE PRINCIPAL INDO-EUROPEAN LANGUAGES 1383 (1949). But I digress. Back to the excursus.


n124 The court also was unimpressed by Hood''s other argument that he was only exercising his natural, God-given right of self-preservation and helping others do the same, inasmuch as the masses were starving while the gentry and the burghers grew fat. Prefiguring the best Anglo-Albionic tradition of Legal Positivism, the judge''s opinion dismissed it cursorily: "An exception, demurrer, or plea founded on the law of God will never be heard in a Court of Justice, from the creation of the world down to the end of time." Cf. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (Lecture V) (London, John Murray 1832).


Hood, incidentally, was fined ten shillings, which was the least of his worries, considering that he was also convicted of numerous counts of robbery, brigandage and attempted murder. Friar Tuck, of course, had benefit of clergy and thus was under the jurisdiction of the ecclesiastical courts. The church authorities, for their part, spirited him out of the realm; he was later believed to be in Rome, putting his considerable financial talents to work running a Vatican bank.


n125 CLSA, supra note 3, ?53, at 74 n.1.


n126 Id. ?42, at 56 n.11. Another instance of the "automatic" or "immanent" expansion of the rule would be present when prosecutions were later brought under it against the first fairground wielders of gunpowder weapons once that technology was introduced into Albion.


n127 Perhaps they had also been used by peasants in the occasional rural vendetta or domestic dispute, cf. Harrington v. Taylor, 36 S.E.2d 227 (N.C. 1945), but such events had never much impinged on the consciousness of the military caste, which was, unsurprisingly, also the rule-making caste. But as the war stories told by the Crusaders spread, a subliminal awareness began to dawn of the possibility of using the humble single-edged axe as a weapon, even though, because of its rustic associations, the swells instinctively disdained it as infra dig.


n128 KARL LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY 28-29 (1941); see supra note 2.


n129 CLSA, supra note 3, ?54, at 75. Lon Fuller saw in Llewellyn''s treatment of the expansion of word content a close parallel to Wurzel''s treatment of "projection." Fuller, supra note 40, at 445 n.37 (citing KARL GEORG WURZEL, DAS JURISTISCHE DENKEN (2d ed. 1924)).


n130 CLSA, supra note 3, ?54, at 75.


n131 Id.


n132 Id. ?66, at 99-100.


n133 "Naturally I do not deny that the deeply rooted belief that one is required to decide purely deductively has an influence on decision. I am only asserting this: If a new case is before him, the judge must move, one way or another. . . . Thus, the judge cannot but decide freely, whether he ''freely'' decides or not." Id. ?55, at 78 n.4.


n134 Id. ?55, at 77.


n135 Id.


n136 Id. ?55, at 77-78. This also seems an appropriate place to clear up a lingering mystery in the text of PRAJUDIZIENRECHT. At the end of his discussion of judicial operating technique, Llewellyn appends the following somewhat obscure references:


It will presently become clear why in my view the conscious freedom of a trained lawyer means a greater real certainty than a blindly literalist attitude makes possible. (In all Europe I have heard of only one Bonjuge Maniou, and in my country of only one, on a high-court bench.)
Id. ?55, at 78 (omitting internal cross-reference). In preparing my translation of PRAJUDIZIENRECHT, I was unable to locate any information on this "Bonjuge Maniou" or to identify the allusion to his American homologue. But it now seems virtually certain that "Maniou" was just Llewellyn''s, or his German publisher''s, mistranscription of the nearly homophonous surname of the so-called "Bonjuge" Magnaud, a French jurist made famous by the account of his judicial and political careers in 2 FRANCOIS GENY, METHODE D''INTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF 287-307 (2d ed. 1919), and about whom Max Radin had also written. See Max Radin, The Good Judge of Chateau-Thierry and His American Counterpart, 10 CAL. L. REV. 300 (1922).


What Americans might today call a "result-oriented" jurist, Magnaud, a relation by marriage to the novelist George Sand, was presiding judge of the court of first instance in Chateau-Thierry in the late nineteenth and early twentieth centuries and subsequently a member of the French Parliament. He was a highly controversial judge whose decisions "leaned in favor of the weaker party, weaker . . . because of poverty or social status" and, among opposing legal theories, he would generally select "the conclusion most in harmony with his liberal political and social views." Radin, supra, at 301. He was renowned and by many reviled for deciding cases not according to traditional interpretations of the law but rather ex aequo et bono. For example, he imposed liability without fault, acquitted of theft a woman who pleaded hunger as her reason for stealing bread and granted divorce by mutual consent, explicitly contra legem. Id. at 301-02. Quite predictably, Magnaud became, in that characteristically French way, a literary cause celebre, publically defended by no less than the academician Anatole France. Radin reports that the controversy generated by the "Good Judge" was indeed European, rather than purely French, in scope. Id. at 300, 303. If Magnaud was in fact that well known in Europe, this suggests that the spelling error was Llewellyn''s rather than his publisher''s. My surmise is that Llewellyn had read Radin''s piece in the California Law Review but did not have it available to him as he read the proofs of PRAJUDIZIENRECHT in Leipzig in 1932. Cf. CLSA, supra note 3, at xxxvii (Llewellyn''s writing the preface to PRAJUDIZIENRECHT in Leipzig in August 1932).


Radin''s "American counterpart" to Magnaud, who was presumably also Llewellyn''s member of a "high-court bench," was one James E. Robinson, an adherent of the controversial agrarian-socialist Non-Partisan League, elected in 1916 "by an unprecedented majority" to the North Dakota Supreme Court. Radin, supra, at 306. Radin describes him as "earnest; . . . immensely confident in [his] rectitude; [an] active politician . . . radical in [his] views and sympathies; "who dislike[s] lawyers; and . . . ha[s] scant awe for [his] colleagues." Id. He was "our Dakotan ''bon judge'' . . . much moved by the recitals of plain, hardworking, simple people," id. at 308, but also much given to "violent and picturesque" language, id. at 307, and far less consistent than his French counterpart in his rejection of the technicalities of statute or precedent. Id. at 306.


The key to the solution of this puzzle I owe to a conversation with Carlos Petit Calvo of the Universitat Autonoma de Barcelona, inspired by a reading of his then forthcoming article, "A Contributor to the Method of Investigation": Sobre la fortuna de Geny in America, in 20 QUADERNI FIORENTINI PER LA STORIA DEL PENSIERO MODERNO 201, 240-41 (Paolo Grossi ed. 1992).


n137 CLSA, supra note 3, ?56, at 80.


n138 Llewellyn ascribes the identification of intuition as a factor in adjudication to Roscoe Pound, without citing to a specific place in the latter''s work. Id. ?56, at 78. He presumably had in mind Roscoe Pound, The Theory of Judicial Decision III: A Theory of Judicial Decisions for Today, 36 HARV L. REV. 940, 951-52 (1923) (discussing role of intuition in the administration of justice). Llewellyn may also have had in mind a number of passages in chapter 3 of Pound''s 1921 Storrs Lectures at Yale. See ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 54, 59 (2d ed. 1954) (discussing role of intuition in the application of the law). Pound in turn may have borrowed the idea from the French jurist Francois Geny, cf. CARLETON KEMP ALLEN, LAW IN THE MAKING 27 (6th ed. 1958) (discussing Geny''s emphasis on intuition in the judicial process), inasmuch as Pound cites GENY, supra note 136, among his sources for chapter 3. Pound, supra, at 182. For an instructive and detailed account of the intellectual and personal contacts between early twentieth century American jurists and their Continental counterparts, including that between Geny and Dean Pound, see Petit, supra note 136.


n139 CLSA, supra note 3, ?56, at 78.


n140 Id. ?56, at 79.


n141 Id.


n142 Id. ?57.


n143 Id. ?63, at 94.


n144 See id. Ё 65 & 67, at 67. In their innovations, the great judges are often aided by the practicing Bar''s pioneering innovations with existing legal forms and institutions. Id. ?65, at 97-98.


n145 Id. ?43, at 60-61 (quoting Brewster v. Hardeman, Dudley 138 (Ga. 1831)).


n146 Id. ?74, at 114.


n147 See infra notes 151-53 and accompanying text.


n148 RRG, supra note 3, at 20.


n149 Id. at 39.


n150 Id. at 27.


n151 Id. at 39.


n152 Id. at 32.


n153 Id.


n154 Id.


n155 Id. at 32-34.


n156 Id. at 35.


n157 Id. at 37.


n158 Id. at 29 & 38.


n159 Id. at 34.


n160 Id. at 34-35. See N.F. HANSON, PATTERNS OF DISCOVERY (1958) (discussing "theory-laden" character of scientific observations). This recognition of the limits of the scientific method suggests that Llewellyn''s reading in scientific theory must have been fairly wide and deep, for one wonders how commonplace such a realization was in the early 1930''s. See, e.g., Grey, supra note 99, at 21-22 (discussing "modern" ideas on the limitations of science and citing "contemporary" writers in the philosophy of science and epistemology, none earlier than 1958). See also Hannah Arendt, The Conquest of Space and the Stature of Man, in HANNAH ARENDT, BETWEEN PAST AND FUTURE 265, 276-80, 300-01 n.23 (enlarged ed. Penguin Books 1977) (1968) (discussing the injection of the human observer into science and the limits of scientific measurement, based on Werner Heisenberg''s "popular" statements of his Uncertainty Principle from the 1950s). If he had not already done so, one place he may have encountered such caveats was in Mortimer J. Adler''s book review of Jerome Frank''s LAW AND THE MODERN MIND, supra note 103, one of three contributions to the symposium on this work in which Llewellyn also participated. See Mortimer J. Adler, Legal Certainty, 31 COLUM. L. REV. 91, 92 (1931).


n161 Llewellyn attributed the beginnings of the descriptive science of law to the socalled "Free Law Movement." RRG, supra note 3, at 38. Cf. Herget & Wallace, supra note 19, at 443-45 (quoting passages from the works of Eugen Ehrlich and Ernst Fuchs advocating a more empirical, social-science approach to the study of law).


n162 RRG, supra note 3, at 38. For those who might think the phrase "the central problem of all of law" just a tad hyperbolic, Llewellyn does give an explanation. Accurate scientific knowledge of what legal rules "deliver" in real life is desirable not just because it satisfies a disinterested spirit of inquiry, but also because such knowledge is an indispensable element in devising effective answers to questions about what the law in the real world "ought" to be. Id. at 39.


n163 Id. at 32; see also CLSA, supra note 3, at xxxviii.


n164 Cf. the well-known discussion of the "temporary divorce of Is and Ought" in Llewellyn''s roughly contemporaneous Some Realism, supra note 21, at 1236-37.


n165 RRG, supra note 3, at 53.


n166 Id. at 43.


n167 The "Historical School" was a nineteenth century movement in Continental jurisprudence begun by Gustav von Hugo (1764-1844), a Roman law Scholar at the University of Gottingen, and continued by Friedrick Carl von Savigny (1779-1861), Professor of Law at Berlin and later Prussian Minister of Justice, the movement''s "unquestioned head." 1 KONRAD ZWEIGERT & HEIN KOTZ, AN INTRODUCTION TO COMPARATIVE LAW 144 (Tony Weir trans. 2d rev. ed. 1987). In the Anglo-American world a well-known figure whose ideas had much in common with those of the Historical School is Sir Henry Sumner Maine (1822-1888), author of the oft-cited ANCIENT LAW (1861).


A Romantic reaction against the rationalistic, natural-law jurisprudence of the Enlightenment, the Historical School


saw law as a historically determined product of civilization, having its roots deep in the spirit of the people and maturing there in long processes. Like language, poetry, and religion, law is the product not of the formative reason of a particular legislator, but an organic growth, rather like a plant, of the ''inner secret powers'' of the ''spirit of the people'' working through history. For the adherents of the Historical School, all true law is customary law, developed, handed down, and captured in usage and manners; the law-bearers are the people and, as the people''s representatives, the lawyers.
ZWEIGERT & KOTZ, supra, at 144-45. See also Hugo, Gustav von and Savigny, Friedrich Carl von, in DAVID M. WALKER, THE OXFORD COMPANION TO LAW 590, 1103-04 (1980).


n168 Eugen Ehrlich (1862-?1918), by many considered to be the founder of legal sociology, was for most of his career Professor of Roman Law at the University of Czernowitz in the Bukovina. An adherent of the "Free Law" movement, see supra notes 19 & 154, Ehrlich''s best known work is his FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW (1913). The element of his thinking that Llewellyn here declines to adopt is Ehrlich''s concept of lebendes Recht, "living law," by which he meant "law as expressed in social conduct" or "current customary law." See N.S. Timasheff, Ehrlich, Eugen, in 4 INT''L ENCYCLOPEDIA SOC. SCI. 540, 541 (David L. Sills ed. 1968).


n169 RRG, supra note 3, at 44-45.


n170 Id. at 45 (quoting MAX WEBER, WIRTSCHAFT UND GESELLSCHAFT 17). It is impossible to tell from Llewellyn''s citation whether he is citing to the original edition of 1922 or the "enlarged" edition of 1925. See Max Rheinstein, Introduction to MAX WEBER, LAW IN ECONOMY AND SOCIETY xxv n.1 (Max Rheinstein ed. & Max Rheinstein & Edward Shils trans. 1954) (describing publication history of WIRTSCHAFT UND GESELLSCHAFT).


n171 In addition to the other qualifications mentioned in the main text, Llewellyn also criticized Weber''s unduly narrow definition of "action" as "behavior to which the actor(s) assign a subjective meaning," which Llewellyn, ever the pragmatist, saw as disturbingly ambiguous and indeed pointless. He noted that Weber himself seems to have ignored this definition virtually everywhere else in his work. RRG, supra note 3, at 46.


Furthermore, Weber''s definition, by focusing on a "guaranteed" social order, appears to leave no room for change. Instead, Weber treated changes in social order under his concept of "Herrschaft," domination. Llewellyn agrees that, while conceptually it is very useful to keep separate the concepts "maintenance of order" and "change of order," in practice they are inextricably bound together. Hence, he proposed to blend some of Weber''s Herrschaft into his treatment of "law." Id.


n172 Llewellyn notes that Weber''s definition is broad enough to encompass the processes by which order is maintained in a four-person family, a school classroom or a workers'' union. Id. at 46.


n173 The effect of this is to exclude such frequent law-staff activities as official announcements of what rules the staff is following or will follow in the future and investigative activities when violations are alleged to have occurred. Id. at 47.


n174 The phrase "law staff," while a "correct" translation of the German Rechtsstab and used by Rheinstein and Shils in their English translation of Weber, see supra note 169, is at best unidiomatic English. At times it helps in understanding the sense of certain passages in Llewellyn''s second Leipzig book by mentally replacing "law staff" and "legal officials" with "the judiciary" and "judges," naturally at some cost to Llewellyn''s full meaning. But while the concept of "law staff" quite obviously embraces more than just the judiciary, judges are a major component of that "staff" and in Common Law are seen as the most important.


n175 The phrase is that of Roscoe Pound and was occasionally borrowed by Llewellyn in his English writings. See Next Step, supra note 21, at 435 n.3.


n176 Llewellyn had qualms about using the ordinary German word for law, Recht, to describe these law-staff activities because of the deeply-rooted usage of Recht to mean "system of norms." Hence his coinage: Trecht, whose invented etymology he gives as Tat [deed, action] + Recht [law]. Hence, roughly: "law-in-fact." RRG, supra note 3, at 48.


n177 Id.


n178 Id. at 49.


n179 In Prajudizienrecht "regularity" went by the name "predictability" or "calculability." See, e.g., CLSA, supra note 3, ?8b, at 11.


n180 RRG, supra note 3, at 52.54.


n181 CLSA, supra note 3, ?42, at 56.


n182 RRG, supra note 3, at 54. It is somewhat odd that Llewellyn should here qualify the amount of regularity obtainable as "paltry" or "scanty." Cf. id. (opining that the hesitancy of practicing lawyers to predict the outcome of litigation is much truer to life than the specious predictability of textbook law). On the other hand, the whole tenor of his analysis in this work, see, e.g., supra text accompanying notes 170-178 (describing forces operating to promote consistency over time in law staff behavior), as well as in PRAJUDIZIENRECHT, see, e.g., CLSA, supra note 3, ?8b, at 11, ?43, at 60, Ё 55-57, is that there is a fairly sizable amount of certainty to be had. Llewellyn was here probably just trying to be cautious, but it does give one pause.


n183 The concept of "irritation" as a stimulus for creative thought and the whole "habit/trial-and-error" description of the decision-making process is an obvious debt of Llewellyn''s to the ideas of one of his intellectual heroes and Columbia colleagues, the Pragmatist philosopher John Dewey. Cf. JOHN E. SMITH, PURPOSE AND THOUGHT: THE MEANING OF PRAGMATISM 23 (1978) (discussing the role of "the irritation of doubt" in thought of Dewey and fellow Pragmatist C.S. Peirce); Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 798, 802 (1989) (discussing habit, inquiry into habit-related problems and problem-solving in John Dewey''s thought). For Llewellyn''s relations with Dewey, see TWINING, supra note 1, passim, especially 422 n.130. The concept of trial and error in response to some stimulus also owes something to the American sociologist William Graham Sumner. See id. at 92.


n184 RRG, supra note 3, at 55.


n185 Id. at 56-57.


n186 Id. at 64.


n187 Id. at 56.


n188 Id. at 57. Cf. infra text accompanying note 202 (discussing the ethical force of "simplified" images of recurrent past behavior).


n189 Id. at 58.


n190 Id. at 59.


n191 For an amplification of this point in PRAJUDIZIENRECHT, see supra notes 122-31 and accompanying text.


n192 RRG, supra note 3, at 59.


n193 Id. at 64.


n194 See supra text accompanying note 170.


n195 Id. at 61 & 78.


n196 Id. at 78.


n197 Id. at 80-81.


n198 Though some ways of behavior are generally followed, others may perhaps be followed only at particular seasons, e.g., Christmas folkways; or on particular occasions, e.g., wearing black to funerals; or only by some individuals in society, e.g., workers versus management; officers versus enlisted men. Id. at 83.


n199 Here Llewellyn again felt constrained to resort to his own German coinage: Handle, from the root of Handlung, "action." He believed that the available German words all had unavoidable overtones of normativeness, which the quoted English words in the main text, used by Llewellyn himself in the German original, lacked. Id. at 82.


The concept of "folkways" derives from the thought of William Graham Sumner (1840-1910), an early American sociologist. Llewellyn had studied with one of Sumner''s students while a Yale College undergraduate. See WILLIAM GRAHAM SUMNER, FOLKWAYS: A STUDY OF THE SOCIAL IMPORTANCE OF USAGES, MANNERS, CUSTOMS, MORES AND MORALS (1907); see also TWINING, supra note 1, at 92-93.


n200 RRG, supra note 3, at 97. Cf. CLSA, supra note 3, at 85 ("[Social norms] are slow to become established, often settling in in a variety of forms simultaneously.") (emphasis added).


n201 Nowhere is such unremarked shifting in folkways more obvious, notes Llewellyn, than in the law''s use of unconscious fictions: newly arising situations in need of regulation simply get swept under an old wording, such as the old Common Law forms of action, the concept of "good faith." RRG, supra note 3, at 98. With this compare Llewellyn''s discussion of the expansion of word content in THE CASE LAW SYSTEM IN AMERICA, see supra text accompanying notes 119-31.


n202 RRG, supra note 3, at 107-11.


n203 Id. at 95.


n204 Id. at 115.


n205 Id.


n206 Id.


n207 Id. at 119-21.


n208 Id. at 125-26.


n209 Id. at 116.


N210 Id. at 117.


n211 Id.


n212 Id. at 45-50 & 92.


n213 Id. at 102-03.


n214 Id. at 103.


n215 Id. at 103-05.


n216 Id. at 117-18.


n217 Id. at 100.


n218 Id. at 89-90. Llewellyn provides additional examples. What, he asks, is the connection between our concepts of "property" and "possession," for example, deriving from notions of a small artisan or peasant farmer, and the actual way a factory is run? The peasant''s or artisan''s notions indicate that use, opportunity to make and draw profits, the right to exclude others, risk, responsibility and management are not to be disaggregated.


But nowadays a factory is "used" by the workers and not by the "possessors" or "owners." The right to draw profits often belongs more to non-owners (bondholders) than to shareholders. The workers who use the factory only secondarily participate in its enjoyment and accompanying risks, hard though it is for us to see the extent of their participation through the veils of the "property" concept. It is precisely the "enjoying" shareholders and mortgagees who are "excluded," but not workers. Running the business is the job of management, which may be made up only of employees. There is a division of responsibility. At this point, the application of "concepts" becomes more and more artificial, until finally even lawyers cannot make do with them. Yet there is still the desire to see through one''s old spectacles: a legal "person" is construed and its existence is then made into an article of faith. Sophistic word usage is resorted to as necessary to fit the new occurrence into pre-existing categories. Id. at 100-01. The use of this example probably derives from Llewellyn''s discussions with his Columbia colleague and corporations scholar Adolf Berle. See ADOLF A. BERLE & GARDINER C. MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY (1932). For a similar line of argument, compare Karl Llewellyn, Across Sales On Horseback, 52 HARV. L. REV. 725, 728-736 (1939) (criticizing use of outdated concept of "property" in the law of sales).


In the final chapter of these Leipzig lectures, Llewellyn provides further examples of this same phenomenon, drawn from the law of contracts and bills and notes. RRG, supra note 3, at 169-71 & 185-87.


n219 RRG, supra note 3, at 183-84. Llewellyn cites as an example the self-interested expansion of the jurisdiction of the English royal courts at the expense of the other courts.


n220 Id. at 105.


n221 Id. at 172.


n222 Id. at 172-73.


n223 Id. at 90-92. Llewellyn offered the following as examples: a vehicle''s speed compared to its load capacity and durability; a speedy trial versus a thorough investigation of the facts; management flexibility in unforeseen circumstances compared to corporate controls, corporate democracy.


n224 CLSA, supra note 3, ?62, at 88.


n225 RRG, supra note 3, at 130-66. I suspect that Llewellyn''s then very recent divorce from Elizabeth Sanford, see supra text accompanying note 22, may have had something to do with his selection of this example and with his more or less contemporaneous article Behind the Law of Divorce, Part I, 32 COLUM. L. REV. 1281-1308 (1932) and Part II, 33 COLUM. L. REV. 249-94 (1933). There also exists an unfinished manuscript for a projected Part III. TWINING, supra note 78, at 66.


n226 TWINING, supra note 1, at 106.


n227 Id. at 108.


n228 See supra note 14.


n229 TWINING, supra note 1, at 201.


n230 Id. at 175-84.


n231 The following account draws heavily on the work recently done by Natalie Hull on the origins of this debate. See supra notes 18 & 21.


n232 Next Step, supra note 21, at 431.


n233 TWINING, supra note 1, at 70-71.


n234 Sharp Letter, supra note 24.


n235 Id.


n236 Next Step, supra note 21, at 431.


n237 Id. at 435.


n238 Letter of Roscoe Pound to Karl Llewellyn, April 29, 1930, quoted in Prequel, supra note 18, at 1326.


n239 Karl N. Llewellyn, Frank''s Law and the Modern Mind, 31 COLUM. L. REV. 82 (1931). Indeed, Frank told Llewellyn that his review of LAW AND THE MODERN MIND "showed a curious empathy." Llewellyn-Pound Exchange, supra note 21, at 943.


n240 Id. at 940.


n241 FRANK, supra note 103, at 5.


n242 Id. at 227.


n243 Id. at 316.


n244 Id. at 312-26.


n245 Llewellyn-Pound Exchange, supra note 21, at 944-49.


n246 Roscoe Pound, The Call For A Realist Jurisprudence, 44 HARV. L. REV. 697 (1931); Prequel, supra note 18, at 1327-32.


n247 Next Step, supra note 21, at 435.


n248 Some Realism, supra note 21, at 1222. It was a charge similar to that later leveled against Llewellyn himself by Lon Fuller. Compare Some Realism, supra note 21, at 1226, with Fuller, supra note 40, at 449 n.46. For details of Llewellyn''s campaign to get the piece accepted by the Harvard Law Review, see Llewellyn-Pound Exchange, supra note 21, at 949-53.


n249 FRANK, supra note 103, at xii.


n250 BRAMBLE BUSH, supra note 46, at 74-76.


n251 Id. at 3. Indeed, so startled was Llewellyn by the extent to which this sentence had been made to represent the thinking of the whole work that, for a new edition in 1951, he felt compelled to drop a cite to this sentence giving references to other passages in the work containing "necessary expansion and correction." Id.


For just one example of the phenomenon referred to in the text, see Hart, supra note 122, at 614-15 & n.40.


n252 See FRANK, supra note 103, chapter 12.


n253 KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960).


n254 Id. at 19.


n255 Karl Llewellyn, Legal Illusion, 31 COLUM. L. REV. 82 (1931) (reviewing JEROME FRANK, LAW AND THE MODERN MIND (1930)).


n256 CLSA, supra note 3, at 11-12.


n257 Sections 1-39 of the CLSA were finished in 1928, when Llewellyn taught the course; sections 40 through 74, containing most of the jurisprudential "meat" of the book, "around January 1930"; the cases and materials were completed in Spring of 1931; the Preface is dated "Leipzig, 4 August 1932," at the end of his second visitorship. CLSA, supra note 3, at xxxvii.


n258 Id. ?8b, at 12.


n259 Genesis 32:26.

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