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60 N.Y.U.L. Rev. 329, *

Copyright ?1985 New York University Law Review.

New York University Law Review

JUNE, 1985

60 N.Y.U.L. Rev. 329

LENGTH: 23599 words





* Quain Professor of Jurisprudence, University College, London. B.A., 1955, Oxon.; J.D., 1958, University of Chicago; M.A., 1960, Oxon.; LL. D. (Hon.), 1980. University of Victoria, British Columbia. This is a revised and extended version of the Dewey Lecture delivered at New York University School of Law on October 23, 1984. I am grateful to Kenneth Casebeer, Jill Cottrell, Christopher McCrudden, David Nelken, James Paul, Jack Schlegel and Robert Stevens, among others, for helpful suggestions and comments, with the normal disclaimers. I also wish to thank Dean Norman Redlich and the Faculty of the Law School, and especially Graham Hughes, for their generous hospitality and the Editors of this Law Review, and especially Randal Milch, Jeff Dunoff and Gary Stein, for general help and exemplary restraint.


... But Llewellyn''s impact on me was growing as I reflected on the implications of his ideas for academic law in East Africa. ... Incensed, I decided to convert the British public to Llewellyn by writing an article about him. ... The image of Realism as a skeptical theory about judicial processes fits each of the three core Realists quite differently. ... First, insofar as members of the movement perceived a shared enemy or set of targets in a newly dominant orthodoxy, there were several different kinds of reasons for their dissatisfaction: the illusion of the logical form or of so-called mechanical jurisprudence; the divorce between legal education and private legal practice; the rather different divorce between law in books and law in action; the intellectual -- and, separably, the political -- conservatism of Langdellism; the nonempirical nature of Langdell''s "science"; and the unresponsiveness of this kind of legal discourse to the needs of the American legal system. ... To conclude: At the historical level "Realism" has been used as a label for the activities, ideas, and achievements of a group or movement which has never had an agreed list of members. ...

HIGHLIGHT: In a recent lecture, Professor Twining updated his interpretation of American Legal Realism. This Article in large part recounts that lecture. Addressing jurisprudence as a multifunctional activity, Professor Twining begins by outlining his approach to textual interpretation. He then utilizes this approach to analyze the juristic texts which he characterizes as comprising the Realist legacy. Through this process, he reinterprets the Realist legacy in light of recent legal scholarship and reevaluates the Realists'' roles, particularly that of Karl Llewellyn, in that legacy. Professor Twining continues by examining some parallesl between the American Realist Movement and developments in academic law in the United Kingdom. He concludes by exploring the significance of "realism" and related concepts for contemporary jurisprudence.


[*329] Memoirs I

It may have been on a beach in Dar-es-Salaam that I heard the news of the death of Karl Llewellyn. It was quite possibly the same beach on which we later played frisbee with the late Wolfgang Friedman, who had come out to teach about Law and Economic Development . . . the same Wolfgang Friedman who in an earlier era had been a forerunner of the English Realist Revolution . . . if indeed England has undergone something that can be so described.

[*330] It was February, 1962. Academic news traveled fast in those days, for this was the peak period of American, indeed Western, interest in Africa . . . the brief era of the neocolonial honeymoon. This was the period in which a Scottish philosopher could justify his transfer to the Sudan on the ground that Khartoum was more central than Aberdeen. Almost every week we entertained at least one visiting fireman from the United States who was clocking up mileage, buying local carvings, selling American legal education, and passing gossip along the circuit.

I was upset by the news about Karl. I had found him an inspiring teacher; I was fond of him and I knew that his premature death meant that his final statement of his most general theory would never be completed. At the time I saw him as only one of a number of teachers from whom I had learned much. But Llewellyn''s impact on me was growing as I reflected on the implications of his ideas for academic law in East Africa. They had more resonance than most other juristic ideas for young expatriates who were trying to make sense of the bizarre unrealities of the common law in a social context, any a climate, that was not hospitable to Carbolic Smoke Balls.

As an expatriate Englishman I naturally subscribed to the airmail edition of the Times. When it became apparent that the Times had not noticed Llewellyn''s death, I quickly drafted an obituary and sent if off. In due course I received a curt rejection, which implied that readers of the Times were not interested in obscure American jurists. I was already well aware of the caricatures and sneering critiques of American Realism in English textbooks of the time. Incensed, I decided to convert the British public to Llewellyn by writing an article about him. Wishing to quote from his marvellously rich, if cryptic, course materials on Law and Society but retaining a gentlemanly concern for the niceties of copyright, I wrote to Soia Mentschikoff, Llewellyn''s widow, for permission to quote from them. With a promptness never to be repeated, she replied almost by return, suggesting that I should come to Chicago to consult "one or two unpublished manuscripts." She would fix it. So in 1963 I set out from Dar-es-Salaam to Chicago, earning my fare by delivering a series of lectures on customary law in East Africa, a late example of armchair legal anthropology.

The "one or two manuscripts" turned out to be the unprocessed hoards of paper that now occupy several filing cabinets in the University of Chicago Law School. During the next tne years the obituary notice swelled into several articles, two pamphlets, and a fat book. This last was transformed from a rather pedestrian intellectual biography into a more ambitious attempt at the contextual interpretation of a major jurist under the stimulus of the daunting criticism of an informal reading seminar at Yale. The group consisted of the late Arthur Leff and two precocious and uninhibited students, who if my memory serves me aright, were called Richard [*331] Danzing and Duncan Kennedy. But I have never been good at remembering the names of students . . . .

Let us pause here and, following current fashion, pretend that we are literary critics. Let us adopt, therefore, some of the language and talk of texts and discourse, and talk about talk. From the standpoint of the audience or reader of this text let us ask: What are we to make of these opening paragraphs? Are they to be interpreted merely as a substitute for the statutory joke at the start of a public lecture? Are they a promotional preview from Twining''s soon-to-be-long-awaited memoirs, possibly entitled Go Further East, Young Man or Frivolous Liberal? Could they be a spoof of barefoot realism -- evocative, anecdotal, impressionistic, and not unduly concerned with factual accuracy? Might this be taken as a dig at the parochialism and isolationism of much American Jurisprudence? Could it be a bit of mythmaking, a story about Realism designed to tempt some future intellectual historian to recognize Swahili neocontextualism as the true forerunner of Critical Legal Studies -- a frolicsome combination of beach shirts, African Socialism, and visitors from law schools on another East Coast? Or is it, anticlimactically, a belles lettrist device to introduce some themes in a serious lecture -- perhaps an attempt to tease out some of the spirit of American Legal Realism?

All of these are possible interpretations. On one view my intentions as author are either nonexistent, unascertainable or irrelevant. Nevertheless I intend to state what I shall attempt in what follows. My primary objective is to present a personal assessment of some aspects of the contemporary significance of the legacy of American Realism for the discipline of law in the United States and the United Kingdom. 1 A secondary [*332] aim is to explore material -- some of the difficulties involved in observing [*333] minimal standards of scholarly accuracy when discussing in general terms any part of that immense heritage of texts, and texts about texts, that contains what we perceive as Western jurisprudence. The object is to identify and to criticize some pervasive bad habits in secondary juristic discourse and to suggest some ways of talking in general terms about juristic texts and our juristic heritage while avoiding at least the worst pitfalls and without descending into arid pedantry. Most of these pitfalls are attributed to problems of generalization.

The surviving corpus of Realist texts provides a suitable vehicle for such a discussion. For the Realists (assuming we can agree who they were) are generally regarded as an amorphous, individualistic, and loosely connected collection of persons linked together at least as much by historical contingency as by shared concerns and ideas. One of the few generalizations that can be confidently made about the Realists is that they were American, white, and male -- and even then one hears the voice of Soia Mentschikoff growling "What about me?"

I propose to adopt the following strategy. I shall first restate a particular perspective on jurisprudence and an elementary strategy for approaching any juristic text or group of texts. I shall next identify five images of Legal Realism that can be constructed from recent writings and consider these images critically in connection with my own general assessment of the Realist legacy. I shall then proceed to address some specific questions, notably: Can "legal realism" be given any content as a juristic concept independent of the work of particular jurists, or is it best treated merely as a historical label? 2 What is the connection, if any, between "realism" and some analogous terms that have gained currency in recent years in the United Kingdom? In this respect, has academic law in the United Kingdom experienced a Legal Realist "Revolution" in any way analogous to the American experience? Finally, is there still some unfulfilled promise of Legal Realism within the discipline of law, especially in common law countries?

One way of looking at jurisprudence is as the theoretical part of the discipline of law. 3 Its main focus is on general questions relating to the [*334] underlying assumptions of legal discourse, both law talk and talk about law. These questions are of different kinds and are posed at different levels of generality. They are related to each other in complex ways. Legal theorizing is a specialized activity directed toward providing reasoned answers to these varied questions. This activity can be interpreted as serving a number of different functions, reflecting the diversity of the questions to which it is addressed. These functions include:

1. Intellectual history and the history of important legal and law-related ideas;

2. High Theory or Legal Philosophy stricto sensu;

3. Middle order theorizing, both prescriptive and descriptive: for example, Llewellyn''s theory of Grand Style judging and appellate advocacy, 4 Bentham''s Science of Legislation, 5 or a descriptive theory of lawmaking processes;

4. The conduit function, i.e., the exploration and development at a general level of relations between law and other disciplines -- what Stone called "the lawyer''s extraversion"; 6 and

5. The integrative or synthesizing function, i.e., the construction of coherent frames of reference for legal discourse generally and for its particular parts, such as a general theory of Contract or of Evidence and Proof in Litigation.

This rough and ready way of depicting legal theorizing as an activity has implications that challenge some commonly held assumptions. 7 For example, it suggests that jurisprudence is not a one-question subject; that Legal Theory is very much broader than Legal Philosophy stricto sensu; that general theories of law and general theories about law are not the only, perhaps not even the most important, products of legal theorizing; and that many of those who participate in this activity either do not have explicit and developed general theories of or about law or that such theories as they have are not the most interesting or significant aspects of their contribution. It is arguable that Rawls assumes a theory of law very similar to Hart''s 8 and that John Stuart Mill adopted his theory of law directly from Bentham and Austin. 9 Mill and Rawls are significant figures in jurisprudence, but we do not read them for their theories of law. To put this last point differently: a jurist may contribute ideas that are original, stimulating, penetrating, fertile, seminal, suggestive, interestingly [*335] wrong, mischievously nonsensical, or otherwise "significant" whether or not these ideas include clear or illuminating answers to general questions about the nature, functions, or uses of law.

If ideas or assumptions that are inconsistent with the above implications can properly be treated as fallacies, then it is fair to say that such fallacies are rife in juristic discourse. They underlie some of the standard misperceptions of "Realism." 10 Further, although our heritage of legal theorizing is immensely rich and varied, it is not matched by a strong tradition of intellectual historiography or textual interpretation. With a few honorable exceptions, we have inherited a collection of appallingly bad habits. Some of these unscholarly practices are both obvious and familiar; the inaccurate generalizations that accompany nearly all talk of schools, -isms, -ists, and movements; caricature, indeterminate attribution, and reification of -isms; treatment of texts out of context and referring to significant thinkers as if they had had only one thought. It would be tedious here to catalogue, analyze, and criticize these pervasive bad habits. Some of them deserve to be castigated for what they are: sloppy scholarship and unfair, usually obfuscating, polemics. Others need more careful diagnosis as inadequate responses to genuine problems: how, for example, to locate thinkers in some general overview of our intellectual heritage, to depict broad trends or patterns in legal thought in a particular time and place, or to present students with helpful maps of what they are studying. 11

For the present purpose we do not need to employ some elaborate methodological apparatus nor to nail a flag to some particular theory of textual criticism. But in reading and talking about juristic texts, it is useful to have a method and a language to help us avoid being trapped by elementary fallacies and related bad habits. 12

In warning undergraduates against the worst pitfalls, I advise them along the following lines. Any text or group of texts or the broader oeuvre of a particular jurist should be approached on three different levels: [*336] the historical, the analytical, and the applied. The emphasis to be placed on each level depends on the reader, the text, and the purpose for which the text is being read. Thus, studying the historical context can range from the detailed particularistic history characteristic of the work of Ouentin Skinner, J.G.A. Pocock, or John Henry Schlegel to a bare sketch of the immediate historical and personal context in which this text was produced. 13 At the very least a historical approach can provide a general orientation and help the reader to begin to get a handle on the central concerns of the author. This inquiry can be crudely expressed by the question: What was biting him?

The translation of concerns into questions provides a link between the historical and analytical levels. History deals with events, people, activities, and texts located in space and time. Analysis and interpretation deal with questions, answers, and ideas, which belong to a different sphere of discourse, that of logic, truth, and validity. A general problem of intellectual history and of the history of ideas concerns the precise relations between the historical and analytical spheres of discourse and how to avoid confusing or conflating them. Juristic discourse is at a rather more primitive stage of development in handling this kind of problem than is political theory, to say nothing of literary criticism or theology. But I suspect that interpreting juristic texts is often a more straightforward business than is interpreting poems.

One elementary kind of analysis -- reading for plot -- can be done in [*337] terms of questions and answers: What questions does this text address? How are these questions approached? What answers, if any, does it yield? History provides clues to the author''s concerns; a "fair" interpretation is one that tries to establish a reasonable close connection between these concerns (historical) and questions extracted from the text (analytical). Criticism can be viewed in first instance as an analysis of the differences between the reader''s own views and the interpretation he attaches to the text. Do I agree with the questions? 14 Do I agree with the approach to these questions, with the answers, and with the reasons for the answers? Criticism, in this view, is as much a matter of self-definition as of applying external criteria to a text. For surely one of the main reasons for reading juristic texts is to clarify one''s own general ideas and assumptions about general issues relating to law. It should be a working precept of all jurisprudential criticism and polemics that before launching an attack one should first identify worthy opponents and attribute to them what one considers to be the least vulnerable interpretation of their views that the relevant texts will sustain. Intellectual debate is impoverished when one attacks caricatures; soft targets generally only suit weapons with correspondingly low firepower.

Finally, the "applied" level encompasses the study of the particular implications and applications of general ideas and answers for more specific or lower level questions. It is a broad, open-ended category that can be crudely expressed as covering all "So what?" questions. It includes an author''s explicit application of his general ideas to particular topics, such as Bentham''s application of utility to punishment or torture. 15 It includes the logical corollaries of adopting a general idea or theory, for example, whether utilitarianism necessarily leads to justifying conviction of the innocent or rejection of the values of due process. It also includes examining concrete examples of work inspired, influenced by, or derived in whole or in part from some general idea, method, or theory, such as analyzing the relationship between the Uniform Commercial Code and Realist jurisprudence, 16 or Peter Singer''s application of utility to the treatment of animals. 17 It can include "the overspill effect" -- that is, uses and abuses of general ideas in ways their progenitors neither intended nor desired, for instance some of the alleged consequences of Hegelianism 18 or the invocation of "realist" ideas to justify pure subjectivism. 19 [*338] The general advice is to consider some of the particular implications and applications of general ideas that you have extracted from a given text. The appropriate way to interpret and follow this advice depends largely on the context. In teaching jurisprudence through study of original texts, I find it helpful for students to make matters concrete by considering such diverse questions as whether there could be a Kelsenite expository work on land law, whether a utilitarian is committed both to justifying torture to becoming a vegetarian, and what kinds of legal artifacts were inspired by the ideas of Llewellyn and his contemporaries at Columbia and Yale.

In discussing Realism it is useful to keep in mind three elementary distinctions that fit in with this general strategy:

1. It is important to distinguish between historical generalizations of the kind "The Realists said . . ." or "Positivists believe . . ." and analytical statements such as "A Positivist is someone who insists on a sharp distinction between law as it is and law as it ought to be." 20 The first kind of statement is either true or false as a matter of historical fact (though typically with intervening textual interpretation); the second may be treated as a different logical type. 21

[*339] 2. One needs to distinguish between ideas that were shared by several thinkers or are common to a group of texts and the ideas of a particular thinker that were original or otherwise distinctive or significant. I shall argue below that some of Karl Llewellyn''s most original contributions were not shared by other Realists and bore only a tenuous connection to his own statement of the starting points of Realism. Thus, Llewellyn''s law-jobs theory 22 is passed over by Robert Summers in his brave attempt to present a rational reconstruction of pragmatic instrumentalism as a distinctive kind of legal theory. 23 By concentrating on the shared ideas of a number of American jurists, Summers is driven to construct an ideal type to which each individual only approximately conformed. Moreover, because it is based on the lowest common denominator, Summers''s ideal type is neither as rich as the ideas of most of the individuals considered nor as historically distinctive as he claims. 24

3. Finally, one must distinguish between what a jurist said and how [*340] what was said was interpreted and used. For example, Bruce Ackerman''s recent thesis that Realism provided legal practitioners with a means of coping with New Deal legislation by giving them license to intuit their way to justice is more a historical hypothesis about the reception of Realism by practicing lawyers than about what any particular [*341] Realist actually said. 25 Similarly, H.L.A. Hart''s criticisms of rule-skepticism and the alleged prediction theory of law 26 or John Dickinson''s defense of the Rule of Law and principled decisionmaking 27 may have involved historically or textually dubious interpretations of the originals; yet their criticisms may in themselves be both valid and illuminating as arguments. Showing why some belief, proposition, or theory is wrong at the level of analysis does not necessarily imply commitment to a claim that anyone ever subscribed to such a belief as a matter of historical fact. Straw men have a role to play in legal theory. What is regrettable is the tendency to treat them as if they were historical characters and to give them leading roles as villains rather than walk-on parts.


The Realist Legacy

Let us start then by outlining a broad total picture of the legacy of Realism viewed as a body of texts. These can be roughly divided into three categories: (a) original Realist texts; (b) works that were explicitly or arguably influenced by ideas expounded in original Realist texts; and (c) historical, interpretive, and critical secondary writings.

Let us include in (a) all the writings of individual authors who could reasonably be said to have been members of the Realist Movement. Let us treat that movement as a historical phenomenon and not quibble about precise conditions for membership: 28 let us admit all American jurists who were critical of "formalism" and who wrote in a particular period -- on a broad view not earlier than 1870, and not much later than 1960; on a narrower, more manageable, view mainly between 1900 and 1940. 29 Almost everyone would agree to the inclusion of Arnold, Bingham, Cook, Douglas, Frank, Llewellyn, Moore, Oliphant, and Sturges as Realists. Most would treat Dewey, Holmes, Pound, Hohfeld, and Corbin as forerunners rather than as full members of the movement, but clearly eacy played a noteworthy part in the Realist story. Most historians would probably agree that it is sensible to treat figures like Beutel, [*342] Hoebel, Hurst, Mentschikoff, Levi, Hart, Sacks, and Schubert as successors or followers who belong to a different generation. Whether we include such diverse figures as Clark, Felix Cohen, Gray, 30 Green, Hutcheson, Hutchins, Patterson, Radin, Rodell, Yntema, and even Lasswell and Wigmore depends on the nature of the inquiry and the criteria employed. 31 What is clear is that the longer the list, the harder it is to make accurate, precise, and nontrivial general statements about Realism or the Realists. In order to simplify matters, for the purposes of this lecture I shall treat Llewellyn, Frank, and Cook as representative core Realists. 32 Any unqualified generalization that does not fit these three fails a [*343] minimal test of historical and textual accuracy.

In recent months I have had occasion to read a great deal of relevant recent literature. I found very few sentences containing unqualified generalizations about Realism or the Realists that passed this minimal test. This is not to deny that such statements may have a role as rhetorical exaggerations, as interpretive myths, legends, or fictions, or as counters in rather abstract arguments. Sometimes they have a function as ideal types or as artificial targets or as aids in providing a general indication of the author''s own position. Sometimes they represent little more than nostalgia, name-dropping, or name-calling that add nothing to the author''s argument. What I am suggesting is that few, if any, such statements deserve to be taken seriously as historical or textual scholarship. Thus one of the few confident generalizations that one can make about Realism is that nearly all unqualified, nontrivial generalizations about Realism are false.

It would be neither instructive nor entertaining to establish this last assertion by detailed evidence. 33 It may be rather more helpful to reconstruct some of the more general interpretations that seem to be still current and to explore briefly how far they satisfy the minimal test of historical and textual accuracy with respect to Llewellyn, Frank, and Cook. One can identify at least five different perspectives on Realism that deserve comment:

1. A distinctive theory of or about law;

2. A theory of adjudication;

3. A negative or nihilistic critique of formalism;

4. A constructive search for alternatives to Langdellism; and

5. Various political or ideological interpretations.

These views, images, or interpretations of Realism are of different kinds and are by no means mutually exclusive. The first two are primarily analytical in that they purport to give an account of Realist writings as contributions to Jurisprudence. The last three are largely, but not entirely, historical interpretations of the concerns, activities, and achievements of the Realist Movement. I shall argue that there is some basis for all of them, but that each illustrates some of the pitfalls of generalization.

1. Realism and Legal Philosophy

Some commentators treat Realism as a general theory of or about law. This is exemplified by Robert Summers''s reconstruction of the shared ideas of some Realists and their immediate precursors and successors in the form of "a meaningful and distinctive theory about law and its [*344] use," which he calls "pragmatic instrumentalism." 34 This view is also to be found in cruder interpretations that maintain that Realists deny any normative character to law and treat it merely as brute fact -- for example, some criticisms of the alleged prediction theory of law. 35

Did all or any of the core Realists have a general theory of or about law that was distinctive, original, or otherwise interesting? A brief answer is that of the chosen three only Llewellyn can be said to have advanced an explicit and developed theory of this kind. This was more developed with respect to some general questions about the functions of law than with respect to questions about the nature or definition of law. 36 Insofar as we can reasonably attribute such theories to Cook or Frank or reconstruct them from their steady assumptions, it is doubtful that their underlying ideas were particularly original or distinctive or even coherent. We can readily concede that nearly all of their theories have some recognizable affinity to Summers''s model of pragmatic instrumentalism. However, Llewellyn, the most theoretically sophisticated of the three, deviated the most from this model, especially in his later work. Not only did Cook and Frank contribute almost nothing of value at this level, but the connections between their more original ideas and their more general underlying assumptions are neither uniform nor even very similar.

There is much more to this than pointing to differences between the epistemological views of Llewellyn, Frank, or Cook or to their more nuanced political, moral, and other differences and disagreements. More important are the differences in their central concerns and, related to this, the issues on which they are still worthy of attention. For example, Frank''s most sustained concern was with litigation at first instance, its neglect as a focus of attention, the unpredictability of particular decisions on questions of fact, and, at a deeper level, the general practical and philosophical issue of the unreachability of fact. 37 I doubt that Frank was a genuine philosophical skeptic and I know that he was no philosopher. 38 Llewellyn doffed his cap to the importance of factfinding and [*345] threw out a few apercus, but he was not consistently interested in this subject and contributed little to it. 39 Although Cook did some interesting analytical work on pleading and the distinction between law and fact, he hardly addressed Frank''s central questions. 40

Cook''s late concern with the empirical scientific study of law resulted in naive answers to fundamentally important questions. Except perhaps in the specialized field of conflict of laws, his legacy of juristic texts is of limited significance. 41 Frank was rather unintellectually dismissive of empirical research about law. 42 Different assessments have been made of the value of Llewellyn''s contributions to this topic. Some see him merely as a naive empiricist. 43 My own view is that, at their best, Llewellyn''s discussions of law and social science method are sensible and perceptive, though not particularly original; 44 at their worst they are best forgotten. 45 Others have given them a higher rating. 46

Less simple is the question whether a common theory of or about law can be imputed to the core Realists. In one sense all legal writers have a theory of and about law in that their legal discourse presupposes some answers to central questions about the nature of law. My personal view is that the underlying theories of law of Cook and Frank are of very limited interest. They were neither fully worked out nor as startling or original as has sometimes been suggested. Their concerns and their continuing significance, if any, relate to other issues in which their answers presuppose some not particularly interesting notions of law. Nor did Cook or Frank contribute much of lasting value to other philosophical [*346] questions. They are more interesting as jurists than as philosophers of law.

Llewellyn is somewhat different in this respect. His law-jobs theory purports to be an outline of the functions of law-government as an institution. Its main interest lies in his insistence on not defining law-government and on making a virtue of the vagueness of the notion of "institution." 47 The general thrust of his work is to emphasize the similarities between law-government and other social institutions, and between legal skills and fundamental human skills, such as rulehandling, factfinding, and negotiating. This emphasis runs counter to the general tendency of legal theorists, especially positivists, to search for and emphasize the uniquely or characteristically legal. 48 Llewellyn deliberately refused to give general answers to questions posed in terms of differentiating law from morals or other social institutions. 49 In order to make the law-jobs theory operational in particular contexts, one needs to stipulate fairly precisely what is to count for this purpose as law-government, as opposed to other institutions. These stipulations can be confined to particular contexts and inquiries and they need not be treated as general. On this interpretation, the law-jobs theory can be operationalized by imputing to it some specific criterion of validity, such as Hart''s rule of recognition or Kelsen''s basic norm or possibly even a different kind of positivism such as Dworkin''s institutionally imbedded principles. But Llewellyn''s theory explicitly refuses to give general answers to questions about validity or distinguishing characteristics -- that is one reason why he makes a significant contribution to the surprisingly neglected question of what is involved in understanding law. This aspect of Llewellyn''s thought has taken us quite a long way from the concerns and views of Cook and Frank, not because they necessarily would have strongly disagreed with its tendency, but because they were primarily interested in different questions.

The argument so far can be restated as follows: whether we settle on [*347] a short or long list of members of the Realist Movement, generalizations about their ideas are dangerous because such generalizations at best indicate little more than some vague intellectual affinities, and because the most significant contributions of the leading individuals are best treated as distinctive responses to concerns and questions that were not widely shared. For these reasons a sharp distinction has to be made between what they had in common and what is original or of continuing significance about their individual contributions. 50 Few if any of them made particularly important contributions to what may be termed the central questions of classical jurisprudence (for example, What is law? What is justice? What is the relationship between law and morals?). 51 This does not mean that they are not worth taking seriously as jurists. Their historical and contemporary significance lies in their concern with a range of rather different questions, many of which are most illuminatingly treated as being at lower levels of abstraction than the philosophical questions of high theory.

2. A Theory of Adjudication

A second image is that Realism presents a theory about the nature of judicial processes, rather than a general theory of law (if an American audience will accept such a distinction). The most common version of this image suggests that early Realists advanced a profoundly skeptical view of the rationality and predictability of adjudicative decisionmaking on questions of law and questions of fact, but that more balanced versions were subsequently advanced by Cardozo, Hand, and the later Llewellyn. 52 Examples of this interpretation include Professor Hart''s picture of American jurisprudence as caught in perpetual tension between a "nightmare" and a "noble dream"; 53 some critical legal scholars'' [*348] depiction of Realism as having irretrievably smashed the illusion of determinacy of rules in judicial decisionmaking; 54 Bruce Ackerman''s interpretation, referred to above, that Realism offered practicing lawyers a particularistic and intuitive mode of discourse that made it easier for them to adjust to the New Deal; 55 and statements of many commentators [*349] who persist in talking of Realism as if it were solely concerned with the nature of adjudication on questions of law. 56

The image of Realism as a skeptical theory about judicial processes fits each of the three core Realists quite differently. Frank gave currency to it by his division of Realists into rule-skeptics and fact-skeptics. 57 This interpretation emphasized two elements: the placing of judicial decisions at the center of the legal universe and a general skepticism about claims of the rationality and predictability of these decisions. Many commentators, however, equate judicial decisions with adjudicative decisions on disputed questions of law. Frank can at least take credit for trying to broaden the focus by including a range of other adjudicative decisions, especially those of first instance; and he was quite explicit that one of his main concerns was to increase the rationality of such decisions. 58 He may have done little more than substitute court-itis for appellate court-itis, but he can hardly be accused either of irrationalism or of mere obsession with the indeterminacy of rules.

The early Cook fits this image fairly well, except that the thrust of [*350] his critique was directed at the soft target of the deductive form in appelate judicial reasoning, and he was not necessarily committed to an extreme position on rationality, predictability, or indeterminacy. 59 The later Cook, however, does not fit the image so well: his empirical science of law focused more on judicial statistics at first instance and on the impact of legislation than on adjudication. 60 His approach was founded on a naively optimistic view of the possibility of applying methods borrowed from the physical sciences to the study of law, rather than a skeptical one. His most significant contribution to legal philosophy was neither exclusively focused on judicial processes nor skeptical in any strong sense of that term.

Llewellyn''s law-jobs theory provides us with a lens for viewing appellate judicial processes in the context of all litigation and all dispute-settlement processes. This almost inevitably leads to a recognition of their relative marginality in law-government as a whole in most societies. It highlights the simple facts that only a tiny proportion of disputes ever reach or even get near the courts and that appellate judicial decisions in hard cases are only one phase in a realistic picture of the tiny minority of processes that reach adjudication. 61 It is a matter of muted textual debate among specialists whether or not Llewellyn retreated from a mild form of rule-skepticism to a version of optimistic rationalism in The Common Law Tradition, in which he emphasized the role of steadying factors in constraining indeterminacy. 62

Thus the image of Realism as being mainly a skeptical attack on the rationality of judicial processes does not score high marks in the minimal test of historical and textual accuracy. Rather more significant is the point that some contemporary American jurists, as diverse as Dworkin, Ackerman, Kennedy, and Tushnet, are more vulnerable than are the core Realists to charges of being overconcerned with judicial decisions on disputed questions of law. The recently revived obsession with this traditional and narrow focus helps to give currency to this image of Realism: [*351] rationalists, like Dworkin, use the core Realists as targets, 63 whereas some critical legal scholars, such as Tushnet and Kennedy, claim them as predecessors in their emphasis on the indeterminacy of doctrine. 64

3. Realism as a Negative Force

Perhaps the most common view is that the Realist Movement was a critical, essentially negative, sometimes nihilistic reaction against a prevailing academic orthodoxy that is generally depicted or caricatured as "Langdellism." 65 The Realists provided a powerful critique but failed to develop any constructive alternative. This iconoclastic interpretation of Realism approximates the predominant view that I encountered in England as an undergraduate: "They took us into the wilderness and left us there." It has been revived recently by some Critical Legal Studies (CLS) commentators who themselves emphasize the indeterminacy of rules and the subjectivity of interpretation, and who claim a close affinity with Realism in this respect. 66

There are three distinct elements in this image: the conception of Realism as being essentially skeptical, irrationalist, and nihilistic; the suggestion that historically Realism''s main target was an academic orthodoxy (Langdellism), or the ideology underlying this orthodoxy ("liberal legalism"), or more generally something referred to as "formalism"; and the allegation that the thrust of the Realist critique was negative rather than constructive. Some, but not all, commentaries combine all three elements with varying degrees of emphasis; others seem to concentrate on one or two of them.

It is not possible to do justice to this complex subject in a few paragraphs. But I shall argue that this composite image fails the minimal test of textual and historical accuracy in respect of all three elements. Thus, the negative image is not only inaccurate, but also seriously misleading.

The case for treating this as a misinterpretation of Realism can be [*352] briefly summarized as follows. First, few, if any, members of the Realist Movement were ever philosophical skeptics, nihilists, or pure subjectivists in any strong sense. 67 One would be hard put to find even a few passages in Llewellyn''s extensive writings that could give color to such an interpretation. The great bulk of his work points in quite different directions. 68 I cannot claim an intimate knowledge of all of Cook''s work, but it seems reasonably clear that the main target of his early "Realist" writings was the idea that most judicial decisions on disputed questions of law fit one standard model of deductive reasoning. This position was not fundamentally irrationalist; in respect of values Cook claimed to be a follower of Dewey, and his ideas about scientific method in law were the reverse of skeptical. 69 Frank''s case is admittedly less straightforward. Frank undoubtedly made some skeptical noises and was taken seriously as a philosophical skeptic by Edmond Cahn, a perceptive commentator who knew him well. 70 However, as I have argued elsewhere, many of Frank''s most important undertakings -- to make judicial processes more "rational," to increase accuracy in factfinding, and to improve legal education -- do not make much sense if we take his claims to philosophical skepticism seriously in respect of facts, values, or reasoning. Indeed, as a reformer he seems better characterized as an optimistic rationalist. 71

Second, the main targets of Realist critiques were more diffuse and more varied than "Langdellism" (which is, in any case, a construct of later commentators). The slot-machine and declaratory theories of judicial decisionmaking, mechanical jurisprudence, the formal style of judging, "the myth of certainty," "lump concepts," appellate court-itis, the "unscientific" nature of legal scholarship, and some versions of Natural Law jurisprudence were among the main targets of one or more of the three core Realists, who also criticized each other. 72 Most, but not all, of [*353] these might be accommodated within a liberal interpretation of "Langdellism." To stretch the term this way, however, tends to obscure the diversity of the underlying concerns of individual members of the Realist Movement and the changing nature of these concerns at different periods. This diversity is particularly important when one considers the political significance of Realism.

Finally, the judgment that nearly all Realist endeavors and achievements were negative rather than constructive seems to me to be a travesty of history. With respect to temperament, aspirations, and achievements this just does not fit the Llewellyn I know. Ironically, apart from one or two intemperate book reviews, perhaps the most "negative" criticism he ever advanced in print was directed at some of the early programs of empirical research by Realists at Yale and Johns Hopkins. 73 Cook''s work on scientific method and, perhaps more controversially, his radical rethinking of the Conflict of Laws can be interpreted as constructive rather than negative. 74 Frank may, admittedly, have enjoyed controversy and he may not have been particularly successful as a reformer. However, the overall thrust of his endeavors concerning judicial procedures and institutions, legal education, the SEC, and as a judge was surely in the direction of trying to improve things according to his particular version of the American Dream. 75 There may be some force in the thesis that the Realist Movement''s achievements fell far short of its aspirations -- for example, that it failed to destory the dominant academic orthodoxy or to develop a coherent alternative to replace it. 76 Opinions may vary on the extent and value of the overall impact of Realist activities and ideas on American legal education, scholarship, literature, legislation, professional opinion, and so on. But the Uniform Commercial Code, The Cheyenne Way, Hurst''s Law and Economic Growth, the Columbia casebooks, many developments in law and the social sciences, and numerous other specific legal artifacts can all be claimed as "products of Realism," all inspired or influenced to a significant extent by Realist ideas. If one adds the contributions of Holmes, Corbin, Douglas, Moore, [*354] or whoever else you choose to include in the list of Realists, to claim that the sum total of their significant achievements was solely or largely negative seems an extraordinary judgment. 77

It is not very surprising that this negative view has been quite widespread. Many Realist texts, including some by the core Realists, were critical in both style and substance. Some were aggressively polemical and indulged in overstatement. Llewellyn and Frank were self-styled "skeptics." All three core Realists were concerned, in different ways, with the limits of rationality, with misuses of "logic," and with the role played by "subjective" factors in legal decisionmaking. All three were dissatisfied with many loosely interrelated aspects of the theory and practice of academic law including legal education, legal scholarship, and general ideas and assumptions related to these. It is a convenient and legitimate simplifying device, for some purposes, to attribute these objects of dissatisfaction to a prevailing orthodoxy and to give this orthodoxy a label such as "Langdellism." In these and no doubt in other respects one can readily acknowledge some basis for the negative image. Nevertheless, it is not difficult to show that, as a global judgment on the ideas and achievements of members of the Realist Movement, it is so misleading as not to be salvageable by a few judicious caveats. It is better to shatter the image.

4. Realism as a Constructive Search for Alternatives to Langdellism

This interpretation is similar to the negative image in that it postulates that, at least in its early stages, the Realist Movement was united by its opposition to a perceived common enemy (variously characterized). However, it stresses that a great deal of the Realists'' efforts, far from being negative, were directed to the constructive development of alternatives. 78 The Columbia curriculum discussions, the Johns Hopkins Institute, the Uniform Commercial Code, Llewellyn''s Grand Style and the numerous other legal artifacts referred to in the previous section are thus seen as more or less conscious attempts to implement the Realist program at a concrete level. The story can be told with many variations and codas. The version that I tend to favor adds two general glosses. First, insofar as members of the movement perceived a shared enemy or set of targets in a newly dominant orthodoxy, there were several different kinds of reasons for their dissatisfaction: the illusion of the logical form or of so-called mechanical jurisprudence; the divorce between legal education [*355] and private legal practice; the rather different divorce between law in books and law in action; the intellectual -- and, separably, the political -- conservatism of Langdellism; the nonempirical nature of Langdell''s "science"; and the unresponsiveness of this kind of legal discourse to the needs of the American legal system. Thus, the concerns underlying the general sense of dissatisfaction were diverse and the suggested alternatives correspondingly diverse, but this diversity was obscured by internal interpreters of the movement, notably Llewellyn and Frank. 79 Second, in certain key respects the constructive Realists seriously underestimated the magnitude of the enterprises they had undertaken. The result was that though they produced many interesting particular legal artifacts, they failed to deliver on their promise of "a sustained and programmatic attack on the problems of law." 80

5. Ideological Interpretations: Realism as Reformist Politics and Liberal Ideology

A rather different perspective sees the Realist Movement in political or ideological terms. Realism is sometimes depicted as a left-liberal movement -- linked to the Progressive Movement in politics -- that provided a critique of and rationale for the extension of discretionary powers in the judiciary and executive branches. 81 It thereby posed a threat to the Rule of Law and representative democracy. This threat in turn produced a political response -- disguised or overt -- in the form of defenses of the Rule of Law and neutral principles. Such a view of Realism probably motivated Pound''s original attack in 1931, 82 as well as sophisticated defenses of the Rule of Law by people such as Dickinson 83 and Fuller, 84 and later by advocates of neutral or objective principles such as Wechsler 85 and Dworkin. 86 This interpretation is, not surprisingly, echoed with [*356] different emphasis by Critical Legal Studies commentators, who see the core Realists as exemplars of what is expansively referred to as "liberalism" and who emphasize the inescapable connections between law and politics. 87

[*357] Such accounts can often be fairly interpreted as responses to questions about the political significance of Realism rather than as rounded historical explanations of the rise of the Realist Movement or analytical interpretations of Realist ideas. I have no desire to set up this image as a straw man, but it is important to mention why it is misleading to exaggerate the political dimensions of Realism. It is doubtful that members of the Realist Movement were united by shared political concerns, especially during the movement''s formative stages. 88 The political conservatism of Langdellism was probably one of the less important and certainly one of the least overt of the various grounds for dissatisfaction that were mentioned above. Except during the New Deal period, 89 most Realist writings did not directly address issues of national politics or general ideology. Some were strikingly apolitical. One reason for this may have been that some of these concerns were shared by people with significantly different political views and varying degrees of awareness and commitment. [*358] For example, Frank was a political activist and publicist, committed to a clear set of liberal principles that he openly proclaimed in his legal and other writings. 90 It is rather difficult to build a coherent profile of Llewellyn''s political beliefs and postures at different times, perhaps because they are marked by a deep-rooted strain of ambivalence. 91 If Cook had strong political beliefs they are not apparent on the surface of his best-known writings. 92 The degree of overt political concern discernible in Realist texts varies considerably over time, rising to a peak during the New Deal, although not all Realists were New Dealers.

This is not to deny the close historical connection between Realism and politics. Rather, it is to suggest that the relations between the Realist Movement, the Progressive Movement, the New Deal, and political concerns about the growth of administrative agencies and threats to the Rule of Law were more complex than some commentators have suggested. Many of the original concerns discernible in Realist texts, especially in the period up to 1930, were strikingly apolitical. Indeed, this is one feature that distinguishes the early phases of the Realist Movement from the Critical Legal Studies Movement and from some recent developments in academic law in Britain. Furthermore, I would suggest that Realist texts are of only marginal interest to contemporary debates about administrative discretion or the Rule of Law or more general questions of ideology. If they are still interesting it is largely for other reasons.

To conclude: At the historical level "Realism" has been used as a label for the activities, ideas, and achievements of a group or movement which has never had an agreed list of members. This label has sometimes been used in connection with the totality of the achievements of all the relevant individuals -- in this context the totality of texts by identifiable Realists. This is a rather rich heritage. The label has sometimes been used to designate either the ideas the "Realists" were supposed to have shared or some other shared similarity of these individuals. Given the "Realists''" diversity, attempts at accurate generalization tend to amount to little more than a shared opposition to formalism and some commitment to a broader approach to law than one that is confined to legal doctrine. The application of my minimal test to five reconstructed interpretations illustrates some of the dangers of talk about Realism in very general terms. The objection is not merely that each of them is [*359] overgeneralized, but rather that such accounts tend to lead to improverished, sometimes misleading, perceptions of the nature of the Realist legacy. This is so even though there is some basis for each interpretation.

So much for the Realist legacy viewed as a collection of texts. The next section addresses the question whether the term "realism" has any value either as a way of classifying jurists or as a juristic concept. This shift of perspective is introduced by a second anecdote.


Memoirs II: The Camel in the Zoo

I began my teaching career in the Sudan. In my first year my responsibilities included teaching the English law of Torts. The English Common Law was treated as embodying "equity, justice, and good conscience." The students were bored, polite, and tolerant and they thought me a little crazy to be concerned about the unreality of what we were studying. Then one day we came to that complicated absurdity, the common law relating to liability for animals. We got through cases of horses jumping over hedges, stories of rabid monkeys and erring avers and circus elephants trampling dwarfs, cases with memorable and evocative names like Filburn v. People''s Palace and Behrens v. Bertram Mills Circus. We pondered whether cats and cocks were cattle. I even posed the question whether the owner of a talking parrot could be liable in defamation. Then we came to McQuacker v. Goddard. In that case a visitor to the London zoo fed an Arabian camel and was bitten. He sued the zoo. After hearing "expert" evidence Mr. Justice Branson held as a matter of law that camels are mansuetae naturae. That is, as he interpreted it, camels are both tame and harmless. He held that the zoo was not liable in the absence of proof of negligence. In order to provoke the class I read out a quotation from an alleged "expert," Sir F. Palgrave: "he is from first to last an undomesticated and savage animal, rendered serviceable by stupidity alone . . . never tame, though not wide-awake enough to be exactly wild."

In threw down a challenge: Is that how Sudanese feel about camels? A hand went up. "Aha," I thought, "at least I have got a response." But instead I received a question: "Please, sir, why was the camel in a zoo?" At that moment some scales fell from my eyes. What had a camel in a zoo to do with Sudan? Or circus elephants or performing fleas or slanderous parrots or carbolic smoke balls or the rule against perpetuities? What was I doing teaching all this artificial and irrelevant frippery to Sudanese students? Maybe I overreacted, but at least I got a discussion going. I had provoked a response by playing the nationalist card. Indeed, it was difficult to stop the students talking and I had subverted my own course.

The discussion led to the conclusion that the English law of Torts was [*360] neither relevant nor suitable to the Sudan. To be sure, there were roads and factories where accidents might happen. People could be defamed or insulted. There was even a zoo -- but how many people actually sued? And did English rules and values make sense in this kind of situation? What of liability for animals? What happened in practice when someone''s goat or bull or camel (or some animal in the Khartoum zoo) caused damage? "It is governed by custom," said the students. But how could one find out about custom in order to teach it? "Ask the people," came the reply.

In solving one problem (for now I could hardly stop the students from talking) I had uncovered another. How could anyone, let alone a too-young expatriate, teach about the realities of the law-in-action in the Sudan? If customary law was important -- as it clearly was -- surely years of research would be needed before anyone could be qualified to teach it.

Shortly after this first incident one of the students invited me to visit a village in the desert outside Khartoum. The local headman (omda) was present. He had heard that I was interested in customary law and he intimated that I could put some questions to him through an interpreter. I was doubly unprepared: I had no training in fieldwork and had prepared no questions. But I was, after all, a pupil of Karl Llewellyn. However, I had not learned all that he had to teach. Instead of asking the omda to tell me about some actual disputes about animals that had recently occurred in the village and how these had been handled, I improvised a series of formalistic hypotheticals based on the English law of Torts. What happens if A''s goat wanders onto B''s land and butts C, a trespasser? What happens if X''s bull escapes onto the highway and gores Y''s camel? He answered all my questions promptly, confidently, and with a straight face. At the end he said: "Very interesting, but we have no bulls or camels in this village and our goats do not behave like that -- no such cases ever arise." Like my mentor, I decided that I was not equipped for fieldwork.

Realism and Related Concepts

Whatever else one reads into this fable, at the very least it identifies a kind of problem that confronted expatriate law teachers in postcolonial Africa in a striking way. 93 Of course, it confronts law teachers everywhere, though not all of them confront it. Whether the issues are posed in terms of the relationship between law in books and law in action, theory and practice, paper rules and real rules, or relevance or realism, they relate directly to one of the main underlying concerns of Realist Jurisprudence. This is one reason for its continuing attraction. But does the [*361] term "realism" in law aptly describe a distinctive kind of theory about, or approach to, law? Does it provide may guidance for dealing with this or any other kind of problem at the level of theory?

Robert Stevens has recently referred to realism as an "amorphous state of mind." 94 That is a suggestive phrase, which rightly emphasizes the vagueness of the term. "Realism" is also ambiguous: it has several distinct meanings in philosophy, none of which is necessarily identical with "realism" in art or law or film. 95 It is little more than a coincidence that the same term was appropriated by followers of Hagerstrom in Scandinavia as by Llewellyn, who was interpreting quite separate and different developments in the United States. 96 Moreover, juristic labels are susceptible to liberal interpretation. It is unlikely that many of those who reject Realism, Liberalism or Critical Legal Studies would acknowledge that they are thereby open to serious charges of being unrealistic, illiberal or uncritical. Similarly not all critics of "common sense" views, in sociology or philosophy, can be said ipso facto to "lack common sense."

The first Dewey lecturer, my good friend Neil MacCormick, has admitted in public that sometimes, while he is shaving, he looks at himself in the mirror and asks, "Am I really a positivist?" 97 As I use an electric shaver, I am normally able to evade such matutinal introspections. But were a modern would-be realist to look at herself in the mirror and ask, "Am I positively a realist?" I suspect that she would require a different approach to answer this question than MacCormick uses. Linguistic analysis has helped to expose, if not to eliminate, some myths about positivism, but it seems to be of less use in deciding whether any meaning can usefully be attributed to the notion of "realism" in law. 98 In my experience, most efforts along this line have proved unfruitful, except perhaps to reemphasize the obvious ambiguity and vagueness of the term. Some have led to gross misreadings of Realist texts.

There are several other possible approaches to the problem of giving the concept of realism some specific content. Some of these have proved to be pis allez. One is to compare the historical and analytical relationship between Scandinavian and American Realism; this is hardly more rewarding than subjecting a not very good pun to laborious analysis. Another [*362] is to detach the term from its particular historical context and to try to construct generalizations about such diverse characters as Roger Bacon, Niccolo Machiavelli, John Dewey, and Bob Woodward. 99 A more interesting line is to take the notion of legal skepticism seriously. Though a good deal of attention has been devoted to rule-skepticism in jurisprudence, the implications of various kinds of value-skepticism, fact-skepticism, political agnosticism, and other skepticisms for the study of law have not attracted as much direct attention -- at least in these terms -- as one might have expected. 100

Yet another approach is to take a fresh look at such common ground as can reasonably be attributed to the original American Realists, especially on the constructive side, and to try to analyze some of its implications. To some extent this has been done by Robert Summers in his reconstruction of "pragmatic instrumentalism." 101 My main reservation about this approach is that if filters out some of the most fruitful contributions of individual Realists; Summers, however, at least brings out clearly the strengths and limitations of the central Realist ideas, as he interprets them, and in his own work he has succeeded in developing some of these ideas well beyond the crudities of naive instrumentalism.

Even thinner interpretations of shared Realist ideas have some potential for development. For example, the notion of "broadening the study of law from within" 102 can be restated in terms of a general proposition such as "in order to understand law the study of rules alone is not enough." Elucidation of the meaning and implications of this proposition opens up some potentially fruitful lines of inquiry. For example, to ask "What is involved in understanding law?" is a suggestive way of posing or reposing a central issue of legal philosophy. If the study of rules is not enough for this purpose, what else is enough? At a more specific level, if the study of the rules of contract or criminal law or evidence is not sufficient to obtain an understanding of these fields, what more is required or desirable in each instance? What is involved in constructing coherent frames of reference for such broader studies? Are there any [*363] criteria for selecting organizing concepts of particular "fields" of law? What "nonlegal" dimensions deserve to be given a special emphasis in a broadened approach to a particular field? By what criteria is one to make such selections? And so on. Some recent efforts to "rethink" criminal law, torts, contracts, evidence, and other fields can be interpreted as examples of attempts to perform the synthesizing function of the theorist within a broadened conception of the discipline of law. 103 Have these attempts been sufficiently systematic? Can any general guidance be given to one about to embark on the enterprise of rethinking his particular specialty along broader or more realistic lines?

Thus even the thinnest interpretation of realism can be developed in such a way as to suggest an ambitious theoretical program. As I have suggested, those members of the Realist Movement who took on tasks of this kind did not on the whole fulfill the promise of their enterprise, partly because they often underestimated the magnitude of their tasks, and partly because they were not sufficiently systematic at a general or theoretical level.

Enough has been said to make the point that the possibilities for analytical development of the notion of "realism" are by no means exhausted, even at this very general level. However, it may be even more fruitful to consider potential meanings and implications of "realism" and related notions more concretely in specific contexts. Accordingly, by way of illustration, I propose to look at two particular examples: first, at some of Karl Llewellyn''s pronouncements about "realism" as they apply to his own ideas rather than to the Realist Movement as a whole; then, at the emergence of "law in context" and "sociolegal studies" as labels in the United Kingdom in the late 1960''s.

1. Llewellyn on "realism" 104

Karl Llewellyn is generally regarded as the leading internal interpreter of the Realist Movement. He neither coined the term nor founded the movement, but he is acknowledged as its first labeler and publicist. As early as 1925 he had begun work on a paper entitled "A Realist Jurisprudence." This emerged in 1929 at a round table of the American Association of Political Science as a paper on "Modern Concepts of Law." It was published in 1930 as "A Realistic Jurisprudence -- The Next Step." 105 Pound echoed this title in his broadside on "The Call for a [*364] Realist Jurisprudence," 106 which in turn provided the opportunity for Llewellyn''s famous reply. "Some Realism about Realism -- Responding to Dean Pound" 107 immediately became, and deservedly remains, the classic text of Realist self-interpretation.

One lesson of the history of talk about realism is the need to treat internal or self-interpreters and spokesmen with caution. Llewellyn''s ri-poste to Pound should have effectively buried some unfair accusations; but it almost as effectively obscured the split between those who were concerned to broaden legal education and training from within and those who wished to develop an empirical science of law in ways which would inevitably divorce it almost completely from vocational training for private practice. 108 Jerome Frank''s equally famous division of Realists into rule-skeptics and fact-skeptics was also misleading in several ways. It exaggerated the extent and the depth of the skepticism involved, including his own, suggested that Realism was concerned only with the predictability of judicial decisions, and, modestly or immodestly, disguished the fact that there was probably only one committed fact-skeptic -- himself, a one-person school. 109 Similarly Llewellyn''s later pronouncements -- such as the idea that realism is a technology, not a philosophy 110 -- served to pinpoint some of the more original aspects of his own contribution rather than to interpret the movement as a whole.

Although Llewellyn''s nine "common points of departure" have been very extensively cited and discussed, this passage from "Some Realism about Realism" 111 has never been subjected to as systematic and comprehensive exegesis as it deserves. Though not based on as rigorous an analysis of texts as Llewellyn had employed to refute Pound''s original charges, it nevertheless was a masterly attempt to generalize about the shared ideas of a diverse group. It still repays careful textual study both as a basis for attempting to construct an ideal type of Realist thought and as an aid to interpreting Llewellyn''s own ideas. On the whole the work skillfully avoids most of the pitfalls of generalization. At the same time it is sufficiently carefully written to escape many later charges levelled at the Realists.

[*365] "Some Realism about Realism" is in many respects a model of juristic interpretation. Nevertheless, it must be treated with caution. In particular, the nine points were only a list of common points of departure for a sample of twenty individuals selected for their diversity, many of whom were at relatively early stages in their careers. Nearly all of these points reflect aspects of Llewellyn''s thought at the time, but on their own they were far from a rounded statement of his most general theory, even in 1931. 112

In his later general statements about realism, the most important of which appears in The Common Law Tradition, Llewellyn was as concerned to say what realism was not as he was to give it a specific positive content. 113 He denied that realism, on its own, constituted a rounded approach or a general theory of law. It was only one part of his jurisprudence. In his unfinished work Law in Our Society, Llewellyn was trying to develop his own "Whole View" based on, but reaching beyond, his law-jobs theory. 114 He was emphatic that realism could not ground such a "Whole View": "If, as I think, jurisprudence contains [seven] sub-disciplines, then realism deals with two out of the seven: craft techniques and descriptive sociology. . . ." 115

In particular, he explicitly distinguished realism from any particular theory of value -- that is part of what he meant by the dictum "realism is not a philosophy." 116 He was especially concerned to separate the notion of realism from his own values, partly because it related solely to the "Is" part of his famous "Temporary divorce of the Is from Ought for purposes of study," 117 and partly because in his later years he was involved in rather more than a flirtation with Natural Law, so he wished to dissociate himself from unqualified utilitarianism or any form of nihilism or skepticism about values. 118 He was also concerned to separate realism from any particular conception or theory of law. In a 1954 letter he wrote: "The drive of Realism, on the other hand, is to establish an effective legal technology. To this such a question as that of the nature of law [*366] is accidental or incidental, or even immaterial . . . ." 119

Whether or not this position is defensible, it is clear that Llewellyn wanted to keep separate the notion of realism, which he claimed to share with others, and his distinctive approach to a general theory of and about law stricto sensu. Llewellyn''s approach involved the substitution of the institution of "Law-and-government" for "Law" as the central concept of his jurisprudence and a repeated refusal to define "law," on the grounds that definitions leave too much out and place too much emphasis on unique and differentiating elements rather than on the continuities and similarities between social institutions. 120 In making these denials about realism, Llewellyn was emphasizing aspects of his thought that separated him from most if not all other Realists.

So much for what Llewellyn''s version of realism was not. On the positive side he saw it as dealing with two parts of jurisprudence: descriptive sociology and what he variously characterized as legal technology, craft techniques, and method. 121 This is loose talk. It requires rather generous interpretation to save him from the criticisms of "descriptive sociology," barefoot empiricism, and crude instrumentalism that have sometimes been levelled against him. 122 A defense could be made, but I shall not attempt it here. Let us concede that some of these criticisms have force and press on.

In discussing realism as a method and a technology, Llewellyn seems to have succumbed to the vulgar error of conflating method and methodology, or techniques and technology. That is, he confused the exercise of a method or technique with its study. Here, with a bit of generosity, Llewellyn can be interpreted as making two distinct claims: one about legal technology as a focus of attention, the other about some precepts for a realistic approach. Both deserve comment.

One of Llewellyn''s most distinctive and potentially fertile contributions to legal thought centers on his notion of the job of juristic method as one of the law-jobs. He rightly claimed that the study of that job -- legal technology in a strict, but a broad sense -- was an important but neglected part of legal theory. The focus of attention is how the law-jobs get done. This includes not only the study of craft techniques of individual practitioners and judges, but also a wide range of questions about institutions, legal inventions, craft traditions, and much else. Llewellyn''s own work at an applied level is pervaded by his concern with such how [*367] questions -- Cheyenne law-ways, the Grand Style of judging and advocacy, the "beauty" of the letter of credit, the direct teaching of basic legal skills, and much broader questions about commercial practice, bureaucratic organization, and institutional design. Bits and pieces of this have been picked up, 123 but the broader implications of the thesis that legal technology is an important focus for theoretical attention, both descriptive and prescriptive, have neither been widely perceived nor systematically followed through. There is clearly some loose connection with the notion of "realism," but to treat the theory of legal technology as necessarily associated with "realism" obscures rather than illuminates this aspect of Llewellyn''s contribution.

This point needs to be clearly separated from the claim that "realism was, and is, a method," the main tenets of which are "see it fresh," "see it clean," and "come back to make sure." 124 Llewellyn fleshed out these general precepts with a plethora of homely metaphors: the child in the story of the Emperor''s new clothes; 125 John Dewey''s childlike, clear-eyed vision; 126 the horse sense of an experienced horse trader looking at the [*368] mouth of a potential purchase; 127 and, perhaps, the Russian sculptor Sergei Konenkov''s way of seeing shapes and patterns in driftwood. 128 Without pushing these metaphors too hard one still can reasonably extract some precepts from this sort of general prescription: use your eyes and ears and all your other faculties, including empathy; keep close to the particularities of practice; do not allow your expectations, wishes, and preconceptions to blur or distort your vision; test any generalization against your own firsthand experience; keep an open mind. These precepts could be interpreted as advocating distrust both of all abstract theorizing not grounded in experience and of purity of method. Push this interpretation further and it easily becomes anti-intellectual, anti-scientific, and anti-theory. There is no need, and little justification, to brand Llewellyn as this kind of extremist.

These homely precepts sound like an invitation to "use one''s common sense." If so, this must be distinguished from the notion of common sense that is demode in intellectual circles. Followers of Marx and Freud, phenomenologists, structuralists, and other ironic sociologists typically claim to be subversive of common sense. The priesthood of learning has a vested interest in the counterintuitive, and the academic world would indeed be duller if most theories and research findings confirmed [*369] mere common sense. Consider for example, this quotation from a rather engaging book by a radical literary theorist:

The fact that structuralism offends common sense has always been a point in its favour. Common sense holds that things generally have only one meaning and that this meaning is usually obvious, inscribed on the faces of the objects we encounter. The world is pretty much as we perceive it, and our way of perceiving it is the natural, self-evident one. We know the sun goes round the earth because we can see that it does. At different times common sense has dictated burning witches, hanging sheep-stealers and avoiding Jews for fear of fatal infection, but this statement is not itself commonsensical since common sense believes itself to be historically invariable. 129

Is this, then, what is really implied by a plea for common sense in law? If we are talking of Frank or Moore or Llewellyn, clearly not. Frank was a disciple of Freud and devoted many of his efforts to attacking the "common sense" beliefs, in Eagleton''s use of the term, of the legal profession. Moore was concerned with developing scientific methods of observing human behavior in relation to rules in order to test and refine hypotheses that were derived from common sense as well as psychological theory. Llewellyn anticipated the debasement of the term "common sense" by switching to "horse sense," by which he meant "the kind of [*370] highly informed, distinctly uncommon, better-than-common, expert ''but not scientifically demonstrable'' know-what and know-how which a David Harum had about horses and other horse traders." 130

This kind of horse sense realism leads to a plea for a kind of theorizing that is derived from and continually checked and rechecked against firsthand experience of the real world. Its natural tendency is toward the particularistic and the earthy, and it is naturally suspicious of abstract theorizing. It does not, however, necessarily involve a commitment to narrow categories and other forms of resistance to abstraction. To Llewellyn a key concern was to reflect on experience and to accept the idea that "[k]nowledge . . . does not have to be scientific, in order to be useful and important." 131

From this interpretation of the concept of realism one can extract many implications. For example, several interesting and important questions can be raised about the how, the what, and the why of "the lessons of practical experience" -- questions which are, inter alia, central to any serious attempt to make legal training more systematic and efficient. But Llewellyn''s own caveats and denials themselves suggest that any legal theorist who wishes to develop a whole view or a general theory of and about law needs to go beyond this brand of realism. On this view, "horse sense" may provide an important test of the acceptability of a particular example of theorizing -- a test that many contemporary texts would probably [*371] fail. It does not, however, provide an adequate or clear way of identifying a type of legal theory. On this interpretation, realism is not a distinct brand of legal theory, and as a concept it can only bear a limited amount of intellectual traffic.


"Law in Context" and "Sociolegal Studies"

In 1966 Professor Abraham Goldstein of Yale, comparing empirical research into legal processes in the United States with similar work in the United Kingdom, expressed doubt about prospects for advance on a broad front until "English law teaching, and the conception of law which animates it, has had its ''legal realist'' revolution." 132 What does the situation look like eighteen years later? 133 During recent years, academic law in the United Kingdom has been transformed beyond recognition. The scale of the enterprise has greatly increased, and the structure and methods of professional training have been significantly changed. Academic curricula have diversified, as have legal research and literature. Some modest developments in such fields as clinical legal education, continuing legal education, and law and economics reflect direct American influence. Other innovations, such as our peculiar four-stage process of legal education and training, are distinctly non-American. Some of Professor Goldstein''s projection has come to pass: the dominance of the expository orthodoxy has been generally undermined, although it has by no means been destroyed. No one can seriously claim that it has been replaced or threatened by a single rival orthodoxy. Rather, what has developed is an extraordinary -- and perhaps temporary -- degree of diversification in legal scholarship and legal education. 134

Despite many differences between the two contexts one can reconstruct a story that brings out some parallels between these developments in the United Kingdom and the American Realist Movement. One version might go as follows: 135 during the early 1960''s dissatisfaction with the dominant expository tradition became widespread. As in the United States forty years earlier, the reasons for such dissatisfaction were diverse. [*372] Some were similar to those that provoked the early Realists -- a concern over the distance between academic law and the realities of private legal practice; a desire to build bridges with some social sciences; a call for a more systematic approach to law reform so that the legal system could keep pace with social and political change; and so on. There were, however, some differences. For example, the complaint of the liberal educator against the anti-intellectualism of the prevailing tradition had more bite in the United Kingdom than in the United States. This was due in part to the fact that British law faculties had fewer professional responsibilities and were more closely integrated into universities, and in part because the Langdellian orthodoxy was more intellectually stimulating and demanding than the textbook orthodoxy in England. Further, some of the dissent from the prevailing approach was more overtly and profoundly political, from an earlier stage in our revolt against formalism, than was the case with the early phases of American Realism. The intellectual atmosphere in England in the late 1960''s, and after, was much more tolerant of overt commitments to various brands of socialism and Marxism than has ever been the case in the United States. Although several bandwagons were rolling by the late 1960''s, there was never a time when there was any substantial basis for claiming that those who were seeking change were members of a single movement. In short, we moved from a monolithic orthodoxy to a new pluralism in academic law without ever experiencing the illusion of a single movement of revolt or reaction. Nevertheless, a few terms, analogous to "realism," have gained some currency as labels. Let us consider just two of these: "law in context" and "sociolegal studies."

Memoirs III: "Law in Context"

It is more like a confession than a boast to claim responsibility for popularizing a new label in academic discourse. Still, I must acknowledge paternity, at least putative and partial, for the terms "law in context" and "a contextual approach" in the United Kingdom. This is how it came about.

Early in 1965 Robert Stevens, who was then at Yale, was approached by an English publisher for advice about how to break into academic law publishing. The stimuli behind this original request were a general sense of dissatisfaction with academic law and legal literature and a specific suggestion by John Vaizey, an economist, that academic law books as produced by the specialist law publishers were so narrow, hidebound, formalistic, and boring that others could hardly fail to do better. Stevens and I had got to know each other as part of the Dar-es-Salaam -- New Haven axis. Because I was visiting Yale at the time and we had shared [*373] negative views about academic law in the United Kingdom, he invited me to join the discussions. We made what now seems a rather elementary analysis of the state of academic legal literature in England and put forward a number of proposals to the publisher. One of them was accepted. This was for a series of what we called "counter-text books." substantial works directed primarily at the student market, which would better satisfy the values of a liberal education and embody a "broader" approach to law than traditional student works. In trying to develop a rationale for the series two years later, we treated the orthodox textbook and the nutshell as symbolizing the enemy: "[a]s educational tools textbooks fly in the face of some of the fundamental values of university education and at the same time they are primitive as means of training effective practitioners; as works of scholarship they may be accurate but are rarely exhaustive; they are rarely sufficiently comprehensive to be efficient as works of reference; as works of the intellect they are, with rare exceptions, unimaginative; they have no pretensions to be works of art."

In retrospect, what seems to me to be striking about this critique, apart from the forcefulness of its rhetoric and the judiciousness of its caveats, is the emphasis on classical values of liberal education and the concern with self-consciously developing alternative kinds of literary form in academic law. The relevance of jurisprudence was perceived, but given only limited emphasis. The same applies to political and ideological dimensions. Analytical jurisprudence was specifically not rejected; instead, the perceived challenge was to find ways of "exploiting the strengths of both analytical and sociological jurisprudence." The section on the juristic aspects of our enterprise ended as follows: "''Law in Context'' must proceed from a broader jurisprudential base than does Salmond on Torts, yet it must seek to preserve as far as possible the rigout associated with the narrower approach."

As with most new projects the issue that gave rise to the most protracted discussion and disagreement was that of nomenclature. What should the series be called? We were consciously looking to American models and experience. Clearly anything associated with "realism" was out. In the United States the word had become meaningless; in Britain it was a term of abuse. Similarly, there were to many jokes and puns conflating sociology with socialism for "sociology" or "social" or "socio-" to be usable. "Law in Society" had been preempted by another publisher. Eventually I proposed "Law in Context," borrowed from Addison Mueller''s Contract in Context, in which Mr. Blandings''s dreamhouse replaced Blackacre as the paradigm property beset by legal problems. This was accepted faut de mieux. I must admit that I rather liked the phrase and for a period I made some half-hearted attempts to popularize it as a term for a new, broader, and more realistic approach to law than the prevailing orthodoxy. [*374] Whether it was in fact new, broad, or realistic remains a matter for perpetual debate. 136

Twenty years later the "Law in Context" series is sufficiently well-established to be almost respectable, but I am glad to say that the terms "a contextual approach" or the deliberately avoided "contextualism" have not really caught on. 137 Why glad? Partly because the original impulse was genuinely liberal -- to free academic law from some hidebound constraints and not to replace one orthodoxy by another; partly because the term "context" can hardly bear even as little intellectual weight as "realism" can.

Still, one may ask whether "context" is entirely devoid of content. If one subjects a phrase like "Law in Context" to close scrutiny can one attribute any precise propositions to it? To study a word in context includes studying it in relation to the words that immediately precede or succeed it in a phrase or sentence or longer passage -- in other words, in relation to its neighbors. 138 Similarly, to study a legal rule or doctrine in context implies looking to its neighbors, as opposed to studying it in isolation. 139 But who are its neighbors? As the phrase has been used in the United Kingdom, the prescription is not restricted to the suggestion that one should look at either neighboring or analogous rules within an alleged "system." "Law in context" is typically used in contrast to one or other kind of legal dogmatics. Standard general phrases tend to be "in its historical or social or political or economic context" or "in the context of [*375] problems or policies behind the rule(s)" or "in the context of its underlying moral or ideological assumptions" or "in the context of the actual operation of the rules." Perhaps even more than for "realism," one of the abiding attractions of the phrase has been its openendedness; the advice is to open things up, to broaden the focus, to make connections with nonlegal materials, factors, or ideas, and to relate legal doctrine to actual circumstances and events. 140

The price of openendedness is vagueness. Not surprisingly, the notion of "a contextual approach," like that of "realism," has attracted a number of criticisms directed at this vagueness. Let us consider just two of these. 141 First, the phrase "a contextual approach to law" cannot itself sustain anything sufficiently precise or coherent to count as a theory of law that presents a distinctive answer to questions of the "What is law?" kind. On this view, which I accept, neither the terms "realism" nor "a contextual approach" are sufficiently precise ad substantial to satisfy the criteria of what one might call the minimum content of a full-fledged theory of and about law. 142

There is a second criticism that is related, but separate: the term "law in context" and admonitions such as "laws should be studied in their histocial/social/political context" do not merely fail to advance a theory, they presuppose a particular theory of law, namely positivism. 143 Thus, it might be argued, to advocate studying the law of evidence or contract in context not only implies a distinction between law and its context, but also assumes that the subject consists of rules: for example, that the subject of evidence is coextensive with the law of evidence. 144 More generally, "law in context" assumes a view of law as a body of rules; this is similar to the kind of positivist theory of law advanced by Hart or Kelsen. This is a tenable interpretation, and some supporters of a contextual approach would readily acknowledge that they are positivists in this sense. However, this involves an unnecessarily literal reading of the term. I prefer a more liberal interpretation: the original purpose of coining the phrase was to break away from a narrow version of positivism in which studying positive law in isolation, as a thing in itself or as a system of rules, was considered unsatisfactory for a variety [*376] of reasons. In this view, to favor broadening the study of law did not necessarily involve either rejecting or sticking with a particular conception of law. In order to study law in context, it is not necessary to define "law" as context nor to accept a restricted, positivistic conception of law, such as that of Hart.

The term "law in context" was originally coined for a particular publishing purpose. We were motivated by liberal ideals of education and intellectual collegiality and edited texts on the basis of the liberal principle that authors should be encouraged to write the books they want to write. In view of these motives, the vagueness of "context" has been a source of strength. Although the books in the "Law in Context" series clearly share a family resemblance, any strong generalization about their juristic, ideological, or philosophical assumptions is almost certain to be either trivial or false or both. The contributors span a fairly broad ideological spectrum, with a slight left-liberal bias, and include positivists, Dworkinians, Marxists, and a number of excellent scholars whose work involves no explicit commitment to a clear set of specific juristic assumptions. Outside this particular context of a series of books, examples of a contextual approach are likely to be even more varied; generalization is accordingly even more dangerous.

Yet a general admonition to study law in context can be transformed into some specific precepts. We have already touched on the value of reading a juristic text in the context of the author''s immediate concerns, his other writings, his personal background, and the intellectual climate of his time. Clarification of standpoint is a useful tool of contextual analysis. 145 It is almost commonplace to state that in interpreting a particular statutory word or phrase one should at the outset consider it in the context of the sentence, clause, or section as a whole, and that section should be interpreted in the context of the statute''s general design, its other relevant parts, and its stated objectives, underlying policies, and historical genesis. Most disagreements and doubts worth debating arise after this advice has been followed. Many of these relate to the relative weight or priority to be given to different kinds of reasons advanced in favor of competing interpretations of a particular text.

A rather different piece of advice is to gloss Llewellyn''s precepts "See it fresh, see it clean, see it as it works" with a fourth admonition, implicit in many of his writings: "See it whole." 146 This is an invitation to think in terms of total pictures. This precept mandates that one [*377] should set any rule, case, text, decision, or other phenomenon that one is considering in the context of some broad picture that provides a basis for mapping its relationship to other phenomena, and for assessing how typical or untypical it may be. We are all familiar with the value of seeing some particular decision (for example, a decision to prosecute or settle, a jury verdict, or a parole decision) in the context of an overall picture of the total process of which it forms a part, and, if we follow Harold Lasswell, of plotting that total process as a sequence or flow of interrelated decisions and events. 147 Similarly, viewing appellate cases in the context of all litigated cases and litigated cases in the context of all disputes in a given society is a simple way of reminding ourselves how atypical and randomly selected most reported cases are. Such demographic perspectives can be applied to almost any legal phenomena in a wide variety of contexts. For example, my former colleague Patrick McAuslan found it helpful, when trying to break away from traditional approaches to teaching Land Law in England, to begin with an atlas and to build an elaborate demographic profile of land, its uses in England and Wales, and the various legal relations and transactions typically affecting land. 148 One thing that immediately became apparent was that such matters as racial and sexual discrimination in Council house queues and decisions by Building Societies to offer mortgages were much more pressing problems than curtailing the spendthrift propensities of heirs of Blackacre. 149

Thinking in terms of total pictures seems to me to be a good intellectual habit, and not only for jurists. It is particularly valuable as an antidote to the myopia and tunnel vision of which lawyers frequently are accused. But, as with the precepts of realism, it is surely a mistake to [*378] inflate particular intellectual ploys, however valuable, into a whole approach or an -ism, let alone a philosophy. When McAuslan had completed his demographic picture of land and legal relations affecting it in England and Wales, he had taken only the first step towards rethinking his chosen field in a "realistic" manner. Indeed, one function of this picture was to bring home just how selective he would have to be in his treatment of this vast subject. Context provided him with only a few initial criteria for making selections. Posing the question "Am I being realistic?" was one check, but this was not and could not be enought. The precepts of realism and contextual thinking can provide stimuli and can serve as useful checks, but they do not purport to do any more than that.

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