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Michael Ansaldi *: THE GERMAN LLEWELLYN(二)

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Michael Ansaldi *: THE GERMAN LLEWELLYN(二)

a. The Same Old Rut

[W]hat is it that makes different judges -- apparently despite their divergent analyses -- still reach the same result? 181

To what is this regularity, however paltry [durftige], 182 to be [*753] ascribed? In the first instance, it can most likely be ascribed to force of habit, present in all persons, including lawyers. It is simply easier to do over again what one has already done once before, particularly if it was hard doing it the first time. Often one is not even conscious of repeating something. When one always sticks the same arm into a coatsleeve first, or puts the same shoe on first in the morning, is it because considerations of practicality, a legal rule or some social norm so requires? Of course not. The way a legal official sets about attacking a case, Llewellyn thinks, is not fundamentally different from putting on a coat or a shoe. This rather inglorious explanation of legal certainty would no doubt have sat rather poorly with members of the American legal establishment, used to thinking of themselves as guardians of right and dispensers of justice.

Llewellyn then offers a few more unflattering metaphors for the judicial process, this time to describe how the law gets changed. Before a "law official" -- typically, the judge -- will ever try anything new, something has to be "not quite right" about the old solution: the standard solution will first have to provoke a feeling of unease [Unwohlsein] strong enough to exceed the threshold of irritation [Reizschwelle]. 183 At this point, judges and legal officials behave like rats in laboratory cages, going over the same steps they did before in hopes of getting to their goal one more time. If this does not work, they treat the case as though it were an optical illusion [Vexierspiel], 184 twisting and turning it until the solution appears. Subsequent, retrospective [*754] reflection on how this actually happened is called an "opinion," and bears as much relation to how one actually got to the solution as does subsequent reflection on how one actually figured out an optical illusion.

Add to habit another kind of repetition: tradition. Legal apprentices -- apprentice judges, apprentice advocates and apprentice lawyers in general -- learn the traditional ways of doing things from the older generation, sometimes without being consciously aware that they are learning anything, such as a tone of voice for addressing the court or use of hand gestures in oral argument to heighten or relieve tension. They simply accept the craft''s given ways of doing things [Handwerks-Gegebenheiten] as part of the environment. These craft habits play a powerful role in ensuring continuity of law. 185 An additional factor that helps to account for consistency in law staff behavior is simply the similarity in the law staff''s personnel arising from their common training and experience,which gradually levels out some of the original differences in their personalities. 186

b. Doing About as Expected

To repetition by force of habit there is then added, Llewellyn notes, an ethical or normative factor, providing a bridge from individual to social habit. What is repeated comes to be expected. "What is expected to happen, willy-nilly, instinctively becomes what is supposed to happen [Das Erwartete wird triebhaft, ohne Wollen, zum Gesollten]." 187 That it should happen is judged "good," "correct," "moral" and "just"; for it not to happen is judged "bad." What was at first merely a matter of fact now has become a matter of ethics, a process Ehrlich called "the normative power of the actual." 188

This gradually developing ethical norm, "what has happened is what is supposed to happen," is one of two fundamental norms Llewellyn says the lay public (and legal officials too) impose on the legal system. It takes the form: "make sure this case is treated the way you have previously treated essentially [*755] similar cases." The other norm is simply: "decide justly." To follow one norm or both norms consistently is, in Llewellyn''s view, simply unattainable. In most difficult cases they are at odds. Lawyers and the public are asking the impossible. 189

c. A Role for Rules?

This impasse between justice and regularity, however, leads to the discovery of leeway, a space, admittedly bounded, within which a judge may act freely. That is, a judge may adjudicate "justly" or may treat this case as all other such cases were treated. But it also leads to the creation of concrete rules of law. These rules aim either at striking a balance between the sense of justice and a need to abide by the old ways, or at defining, at "nailing down," "the Just" or "What Was Done in the Past" in order to control the future. 190 This relieves judges of some of the awful burden of responsibility and simultaneously protects the public against judicial missteps. The existence of legal rules, in turn, then leads to the development of another professional skill: the ability to disguise all innovations as decisions compelled by precedent or statute. 191

Naturally, Llewellyn does not deny that the existence of legal rules is one more factor leading to some increase in the regularity of law staff action. Words are powerful, and acquire an aura of self-sufficiency, but one that is ultimately deceptive. Legal rules, he thinks, do not by their mere existence guarantee law staff behavior that conforms to their wording. 192 For legal rules, though we cannot get along without them, have only a limited power to ensure regularity. They make only for a bit more [Bi beta cheb] regularity than would already obtain just from the similarity and continuity of law staff personnel. 193

The limited efficacy of legal rules can be seen most clearly when changes in the law are made. For then the key question becomes: When do the new words of the law become sociologically valid? Or, in Weber''s language, at what point is there a [*756] chance people will act accordingly? 194 For clearly the words of the new law are not self-executing. A new provision of law is in the nature of an experiment. Its success or failure -- the form in which the change is eventually manifested in real life, and how soon it occurs -- is dependent on what a law staff does with it, on how it interprets and applies it, on whether the staff has empathy for the purpose behind the innovation, the understanding needed for the speedy transformation of prescriptive language [Sollwort] into legal reality. 195

3. Social Studies

a. Order

Llewellyn, as noted, took over from Max Weber the notion that law staffs are just one of a number of discrete subsystems within society. Before trying to assess the relationship between law staff activity and the rest of society, however, he first needed to develop a picture, however sketchy, of society as a whole. But this was no easy task given the confused, anthill-like jumble [wirres, ameisenhaufenhaftes Hin und Her, Drunter und Druber] that society appears to be. 196 Still, partly by tradition and partly from certain (though hardly rational) knowledge, we assume that some sort of unity must inhere in society. To let some sort of order, however fragmentary, emerge, there must be oversimplification: a focus on this ant, this tiny portion of the hill.

To Llewellyn the concept underlying society is neither legal rules nor public law, nor even law-staff activity, but order. The minimal conceptual requirement for "Society" is a notion of its members acting in such a way that the number, type and overall mass of their conflicts do not render the idea of a unity in their actions unimaginable. Similar to "Society" is his definition of a "Group": two or more people the totality of whose patterns of conduct respecting a particular matter can be viewed as an organized Whole. Society is a "Group" writ large, a complex and largely self-sufficient unit. Such a collection of people, when not self-sufficient but rather a discrete part of a larger unit, is a [*757] "Group," e.g., a trade union, a political party or a club. A "category" is two or more people with common interests, lacking a corresponding organization. 197

b. Folkways

The basic phenomenon of a group or society is the relatively regular, calculable and interconnected activities of its members. These, when sufficiently repetitious, are to be regarded as "ways-of-behavior" [Handlungsweisen]: supra-individual abstractions from many particular instances of people behaving the same way 198 that are taught, passed on to or, more likely, picked up by newcomers to the society or group. Note that there is absolutely no normative component to Llewellyn''s concept of "groupways," "folkways," "practices" or "behavior patterns." 199 His is a minimalist, purely descriptive concept, containing no implication that the society or group attaches moral or ethical value to the practices (although it may). Folkways are enormously powerful in exacting conformist behavior, able over time to transform the explosive threat to society represented by all newborn babies, squalling little monsters of domination and uncontrollability, into Frenchmen, Japanese, members of the middle class, and the like. Folkways, indeed, like all principles of order, Llewellyn sees as unswervingly bent on their own preservation.

How can folkways ever change at all, if their power to control behavior is so strong? Folkways change because they are not a narrowly linear concept, prescribing in detail one and only one type of behavior, but are more akin to a band or a spectrum [*758] [Streifenbegriff], 200 encompassing a range of generally similar instances of concrete behavior. The greatest numerical accumulation of particular instances is around the middle of the spectrum, where concrete examples of behavior are most alike. (The similarity between instances at the left and right ends of the spectrum is less readily apparent.) This "spectrum" quality of folkways thus provides leeway to accommodate both individual characteristics (lefthandedness) and conscious individual initiative. For example, in medieval painting, most elements were prescribed, but there was still some room left for an individual''s powers of synthesis. Folkways thus change when instances of concrete behavior begin to accumulate in greater numbers elsewhere on the spectrum than before, causing the statistical center to shift. 201

One cleavage that may develop over time, Llewellyn notes, occurs between behavior patterns in their scientifically describable form -- given their "spectrum" character, these present a highly complex and polymorphous appearance -- and people''s notions about what those behavior patterns in fact are. The toleration of folkways for a somewhat wide range of behavior has as a consequence that, when people, even those of scientific bent, think about the folkways that are actually operative in their society, they inevitably simplify the complications present in Reality, editing it along the lines of the behavior patterns they wish were actually being followed. Thus, while expectations for the future are generally based on what has occurred in the past, here people''s expectations come to be based on a distorted, simplified image of the past. "What Has Actually Happened" is far too complex to be described accurately. While people may be dimly aware of a norm that is in fact based on actual behavior, their conscious norm, a distorted and, in turn, distorting social norm, is the norm that comes to acquire an ethical character. Such [*759] "streamlined" norms, having become completely separated from their basis in sociological observation, often take on a life of their own, and assert their validity, as directive norms, to control behavior. These norms are also able to expand, in fairly predictable ways, to cover unforeseen situations. 202

c. Folkway Clusters

Just as individual folkways exist, Llewellyn observes that relatively discrete groupings of behavior patterns, "folkway-clusters" [Handlengefuge, Handlengebilde] also exist that need to be seen as a composite. 203 Llewellyn claims no a priori validity for such folkway-clusters. Indeed, it may be hard to say where the boundaries are when trying to decide which groups of practices are to be viewed as composites. These clusters of folkways have at most only a heuristic value: while faithfully reflecting only known facts, they help us see order in the midst of confusion. One intuitive principle to follow in seeking to identify such composite behavior patterns is to look for them in connection with particular persons -- (behavior toward a monarch or behavior of the old Polish nobility), places (the Leipzig fair or a courtroom) and times (Christmas, Thanksgiving or Carnival). But one can also expect to find them in a particular subject-matter context. The same set of behavior patterns may naturally often be interpreted equally well in connection with more than one of these principles of organization: a tobacco business, for example, can be viewed with equal plausibility in its personal, local and temporal contexts as well as in its subject-matter context. But it is hardly possible to interpret the tobacco business other than in its subject-matter context.

d. Institutions

Larger still than either folkways or folkway-clusters, one also can ascertain the existence of social constructs Llewellyn calls "Wholes" or "Totalities" [Ganzheiten], large-scale entities ultimately composed of many individual folkways and folkway-clusters, but whose existence as integrated "Wholes" seems to some extent to take on a life of its own, independent of their [*760] components. These larger "Wholes" that Llewellyn focuses on are the institutions at the forefront of the sociologist''s and the average person''s interest: state, church, social status, class, party, nation and the like. Llewellyn also groups with these institutions those similarly large-scale structures often spoken of as "systems of culture": the economy, science, religion, politics and art. 204

Llewellyn asks what we can learn by examining these institutions separately from their component parts, as discrete units that in themselves have effects [wirkende oder schaffende Einheiten]. 205 He notes that, at least in modern times, people in society generally first perceive them as "Wholes" rather than as haphazard agglomerations of individual subparts. The purpose these "Wholes" seem to serve in society is twofold. First, they organize existence, taming it and ultimately making it comprehensible. Second, they deal with the unforeseen. These large structures should be seen as a series of canals through which action is constantly flowing, the articulated organization of the relatively fixed portion of social behavior [die gliedhafte Organisation des verhaltnismabig festen Teiles des gesellschaftlichen Tuns]. 206

These larger "Wholes" can be tightly or loosely organized. A fluid "Whole" is when there is only one major organizing principle, e.g., an artistic society, a gymnastics club, a purchasing cooperative. When there is more than one organizing idea, however, they may either be in conflict or mutually reenforcing. The greater the number of binding interests and their mutual reinforcement, and the greater the density of folkways and folkway-clusters in the institutional "Whole," the more one can speak, graphically, of the "Whole''s" being raised to a higher power. One might even say that the higher the exponent, the more capable the structure is of defending itself against change. But generally, what is gained in solidity is sacrificed in adaptability. In the modern world, most "Wholes" have clearly declined in their "exponential" force. 207

One frequent feature of these large structures is that they [*761] are largely preserved by inertia. Change, when it takes place, is generally the result of an accumulation of small changes on a "molecular" level, rather than sudden, catastrophic social change, which is scarcely more frequent than catastrophic changes in the earth''s geography. The nature of large institutions is such that they contain homeostatic forces working to integrate molecular changes into their existing shape, trying to make the new elements fit into the prior structure without upsetting the internal dynamics among the institution''s other component parts, to reestablish a balance along the lines of what has gone before [im Sinne des Gewesenen]. Hence the longevity of the larger "Wholes" as recognizably continuous entities, even when their component subparts have undergone an enormous amount of incremental change over time. 208

It also often happens that a particular staff of individuals is charged with carrying out the task or tasks associated with a particular institution, i.e., the phenomenon of the specialization of labor. These staffs need not be "official" or "governmental." In a caste society or corporate state, for example, economic activity and modes of social intercourse can be assigned in traditional ways: theological, legal or social. Once such a division of labor is present, people begin to divide themselves up by their folkways, their norms and their whole mode of being. Every such staff is in the nature of a component "member" or "limb" of society, with other members of society relying on the staff for the performance of its staff work. 209 Exclusive reliance on a staff need not be officially enforced. It is just that the staff is presumed to have the special knowledge to perform the work. This knowledge may be a professional secret or it may simply be that the lack of time, or the need to do one''s own work, prevents outsiders from appropriating the staff''s "cultural property" [Kulturgut] to themselves. 210 In such situations there is constant pressure for the staff to exploit its monopoly position for its own ends at a cost to its role as "member" or "limb" of society. This pressure is counterbalanced, to some degree, by professional ethics, by internal reform movements, by the limits of society''s tolerance [*762] and, if need be, by state intervention. 211

4. Law and Order

Perhaps the most readily obvious feature of Recht, Rechtsleben und Gesellschaft lies in Llewellyn''s attempt to link up his particularized lawyer''s understanding of how law works with a broader social theory. In that context, a number of key ideas underlie his analysis of the relationship between the law staff (basically judges and other legal officials) and the rest of society.

First, not only is the law staff a social subgroup in Weber''s sense, but, like all subgroups, it replicates in microcosm the same principles of order, the regular, predictable behavior patterns, that characterize the larger social order generally. For precisely this reason a scientific study of the legal system holds the additional promise of illuminating the nature of its surrounding society.

Second, because most advanced societies tend to set up a separate, governmentally sanctioned staff of specialized "lawmen" to resolve disputes and channel people''s behavior, this staff cannot but develop distinctive normative principles of its own and its own set of distinctive staff folkways and folkway-clusters that, viewed as a whole, constitute the institution known as the administration of justice. Hence, the staff''s ideas about what justice means and accordingly the results of its collective practices will inevitably differ somewhat from the ideas and desired results of non-staff members. Legal officials'' ideas about justice, though ultimately springing from the same sources as those of laymen, drift away from the latter because to some extent they develop in isolation. 212

Llewellyn then proceeds to look more closely at the role played by behavioral composites (folkways, folkway-clusters and institutions) in the activities of the law staff.

a. Queensberry Rules

Within a group, Llewellyn observes, the constant contacts among members and the feeling of oneness or community are likely to eventuate in "groupways" that sharply delimit the [*763] space for truly free action. Between groups, however, such frequent contacts and harmonious feelings are typically lacking and thus the space for free action, a space not permeated with folkways, is accordingly larger. Of course the contacts made in this free space seldom lead to outright hostilities. Common interests may be discovered. One party may simply acquiesce in the "victory" of the other, e.g., letting the other person go through the door first. Or the dispute may be settled by conventional usages: ''one at a time''; ''the line forms to the right.'' There may be attempts at persuasion or negotiation, threats and about-faces. Finally there is always the possibility of an out-and-out struggle, by physical, economic or intellectual means, with its outcome determining the shape of future relations between the combatants. 213

All these means of settling disputes are, in a certain sense, folkways too. But here a distinction crucially significant for the law must be made between folkways that precisely specify the way (or the socially permissible alternative ways) participants ultimately will or may behave, and those folkways that, in a predicament, only offer a procedure for arriving at an as yet undetermined way to act. The former eliminate the conflict, shrinking the space for free actions. The latter, by contrast, apply only within this free space, regulating the way to "attack" the Unregulated [den Angriff auf das Ungeregelte]. 214

The significance of this distinction to law is that it leads to an illuminating division of existing legal materials. For "Law" [Recht], before it gets separated out as something distinct from "the Right" [das Richtige], consists almost entirely of concepts similar to behavior-specifying folkways. Legal procedures, by contrast, have always had the task of bringing conflicts to an orderly resolution, although one whose content cannot be foreseen in advance. Thus they belong to the category of the dispute-resolving folkways. Of course, once a difficult conflict has been resolved, the resolution, the "Law" resulting from the resolution of the conflict, will itself contribute to creating a new behavior-specifying folkway. 215

[*764] b. The Eye of the Beholder

Of particular importance to the law, being a "staff" means, in a very real sense, having professional leeway. This is of course related to the presumption of the staff''s specialized knowledge. All that people ask is that, should they have dealings with judges and other staff members, the results be satisfactory within limits set by the culture and their needs and wants. By the same token, one distinctive feature of law staffs, unlike, for example, medical staffs or religious staffs, is that laymen are likelier to get involved with, and are more prone to express opinions at variance with the results of the performance of staff activity. Laymen do not think special expertise is required to judge "justly." In simple societies, this acts as a significant brake on the law staff''s leeway in performing its job. But in more complicated societies, laymen typically no longer have as much time to sit in on the process. Also, staff members will usually have developed the art of hiding behind legal rules. 216

Another insight relates to what might be called the "lag" factor. When folkways change, people''s ideas about their society''s folkways and folkway-composites do not change at the same pace. Llewellyn quotes Thorsten Veblen: "A man''s ethics are modelled on the conditions of his grandfather''s time." 217 Because these composites are more easily grasped in connection with concrete persons, times and places than in their "sense" or "subject matter" contexts, the earliest notions people have about the specifics of a folkway cluster will be strongly determined by the particular concrete form it took in its early period of existence, rather than by any abstract "sense" or "significance" the composite may carry.

As with laymen in general, so it is with judges and other legal officials. It is precisely such "early notions" that provide the law staff (and legal thinking in general) with the basic ideas to use in thinking about "folkway clusters." In fact, it is often the specific form a folkway cluster took in its earliest days that lingers on as the sole image of this folkway in the minds of the law staff. One example might be drawn from the law of sales. The behavioral composite connected to the concept of a "sale" [*765] was wide enough, given its spectrum character, to encompass both the sale of an object for delivery here and now as well as the sale of an object for future delivery. While at earlier periods in social history the greatest accumulation of real-life instances of sales was at that point on the spectrum where "the sale of an object here and now" was located, as time went on a far greater number could be found at that point where "the sale of an object for future delivery" was located. Nonetheless, the law''s basic notion of a "sale" quite obviously continued to be based upon an image of a cash sale inter presentes, long after the typical sales transaction generating legal disputes had become the sale for future delivery. Like Procrustes, lawyers force new social phenomena into old concepts, only unwillingly making an occasional concession to the new form in which lay folkways appear. Legal concepts far more tenaciously retain the form of an earlier cluster of folkways than the actual behavioral composite itself. 218

Contributing to the same result is an important related force tending toward equilibrium in law staff activity: the force of inertia -- of tradition, of accrued rights, of not wanting to [*766] know, not wanting to be bothered. Yet in the final analysis, the forces favoring equilibrium may ultimately be overcome by the forces of change, indeed by factors such as the law staff''s self-interest, 219 which may play a beneficial role in changing legal institutions. Llewellyn believes tension between the two forces will always be present and cannot fail to have significant consequences for the law.

Lay behavior patterns naturally do not stop changing and evolving when law staffs issue a pronouncement, either by decision or by legislation. This cleavage between real life and staff practice then sets the stage for further disputes requiring law staff attention: one side will appeal to what happens in real life, the other to the law staff''s past practice. Such disputes are always the chief impetus for the law staff to reform its practices. 220 The inevitability of legal officials looking at new developments through the "old spectacles" provided by existing concepts -- for without them they couldn''t see a thing -- is offset by their nitty-gritty [erdnahe] "feel" for the development of new folkways in society and for the needs of the fact situation before them. 221 These new developments may slink into cases as blatant fictions, or appear openly in the form of distinctions or, indeed, as avowed refashionings or creations of legal concepts. 222

Still, when change does occur in the law, it typically occurs at the "molecular" level, as with change in other social institutions. No large scale change like a codification, the introduction of a new legal system or a reform of the administration of justice should deceive anyone into thinking otherwise.

c. All-Purpose Makeshift

The final major observation Llewellyn makes is that only rarely does society use a folkway-cluster, or the law staff a professional tool, to perform one and only one task. Even if the "tool" started out having only one purpose, there is a constant tendency, over time, to use it for more than one purpose. When [*767] a need arises, there is a tendency to use means that are already available provided they do the job. But when an institution is also used to serve new purposes, there is a high probability that this will have a detrimental effect on its ability to achieve its other ends. 223 Llewellyn provides two examples of this phenomenon in Prajudizienrecht, the gradual expansion of warranty liability for purposes of consumer protection and the development of the chattel mortgage:

Something is needed, so it is created out of the available legal materials, indeed the materials right at one''s hands. . . . But right away the misuse begins, as inferences start to be drawn from features of the institution that were not decisive factors in adapting it to its new use (as with warranties, where the view is that no rights are acquired by non-purchasers, even a purchaser''s wife or child). One who emphasizes the conveyance aspect [of a chattel mortgage] wants the item in question to be forfeitable to the creditor, irrespective of the consequences. At this point, everything will depend on whether the judge can . . . just say A and not also say B. 224

The store of existing concepts always provides the tools with which judges and other members of the law staff must work.

5. Law of Desire

Llewellyn proposes that it would be profitable for the future sociology of law to examine law-staff activity in its interactions with folkway-clusters and social institutions. As an example he takes up the institution of marriage for closer examination. 225 Quite naturally, Llewellyn''s account of marriage has an obviously dated feel about it, given the passage of time and the enormous social changes that have intervened since the early 1930s, but it is his method of approach, rather than the particulars, which is of most interest.

[*768] Llewellyn sees marriage as an institution that, from the medieval period through the eighteenth century, was typically perceived as a coherent "Whole" by people in society, rather than a loose congeries of folkways associated with a variety of distinct social purposes. In its earliest form, marriage was able to fulfill most of these purposes without making contradictory and inconsistent demands on spouses. Medieval marriage thus was generally able to regulate sexual congress, avoid disputes over the possession of women, provide an economic unit of production and consumption, provide a stable basis for one''s emotional life and provide for the propagation and rearing of children. Furthermore, in achieving these goals, the institution of marriage received reinforcement from other institutions in society, such as church, village, neighborhood and guild. Llewellyn also finds that marriage served a number of other social functions, such as the promotion of hygiene, the propagation of one''s social group or one''s culture, the protection of the mother after her childbearing years are over and the regulation of how income and inherited property are to be used and enjoyed.

As one moves into modern times, however, one finds different demands being made of marriage: demands for greater personal fulfillment; for better-educated and economically better-off children; for a more specialized division of labor in society; for a more interesting social environment and hence for the creation of big cities. Those other institutions that had previously provided a great measure of reinforcement for marriage grew less and less able to do so over time. Actual social patterns, the folkways out of which the concept of marriage developed, underwent significant change. The various specialized tasks that had been fulfilled by the unified "Whole" of medieval marriage seem gradually to have separated themselves out, with the development of institutions adapted to its sub-tasks, e.g., schools, acting as both symbol and agent of the separation process. Nonetheless, the ideological conception of marriage employed by the law staffs and others did not, typically, keep pace with these social changes. Their conception of marriage continued to be based, to a large extent, on the circumstances of an earlier age.

But what is the role of law and law staff activity here? Under what circumstances do lawmen, with their outmoded idea of marriage, have occasion to interact with the social institution? Cannot all of the above social purposes be fulfilled without law [*769] and law staffs? Do the law and the law staff do anything other than give the state''s nugatory stamp of approval to the social institution?

To Llewellyn law and law staffs perform a valuable role in achieving a number of those purposes. Law staff activity serves chiefly to reinforce social conventions where, by themselves, these are at their weakest. The underlying idea is that law staff activity acts to shore up elements of social order that society itself is able to create but not entirely to maintain. Because law staff activity operates with an image of marriage as permanent, it is able to ensure that the social purposes promoted by marriage endure. Without legal sanction, for example, the social institution of two people joining together might not be able to survive a waning of mutual attraction. The chief function of the law in this context is to make decisions about when parties have claims to continuing rights, such as to support.

Similarly, it is the activity of legal officials, rather than purely social pressures, that can act to force an irresponsible husband to support his family or to force parents to send their children to school. When a spouse is cruel, uncontrollable, irresponsible or violent or when the wife has grown old, law and law staffs play a similar role of providing organized support for less efficacious social pressures, precisely at a point where the latter threaten to crumble and collapse. It can intervene to stop domestic violence and can prevent husbands from disposing of older wives like superannuated employees.

As for inheritance, law and law staffs provide not just a fairly unambiguous set of rules for determining rights of inheritance -- a particularly contentious area where society, left to its own devices, proves quite ineffective -- but they also provide a readily available mechanism for answering the related questions of fact: Was she his wife? Is this his child? Did he leave a will? Was the marriage ended by divorce?

Furthermore, while both society and law find it equally easy to determine whether a marriage has been initiated, e.g., by some ceremony, society finds itself much harder pressed to answer the question of whether a marriage has ended, unless the ending of the marriage is to be left solely up to the parties (which for other reasons society might not want). The legal system, by its nature, is better suited to make the necessary adjudications about when a marriage has ceased, i.e., divorce, and [*770] hence about when claims to rights of a continuing nature should be cut off.

Llewellyn''s basic thesis is that the then standard conception of marriage, with its origins in older folkways, no longer accurately reflected contemporary behavior patterns. Yet it valiantly sought to preserve its old form in people''s thinking, and especially in written law and the law staff''s official activity. Thus, it had some success in shaping behavior to accord with its praiseworthy image of marriage as an institution: this image had been able to exert pressure to keep extramarital sexual relations within "tolerable" limits of time, place, manner and frequency. But actual folkways, diverging more and more from the ideological construct, had at times been able to extract concessions from the older conception. The attempt both to maintain the old conception and to provide a safety valve for emergencies, i.e., divorce, had also led to amusing or tragic incongruities in the way particular applications for divorce were handled. Finally, the relatively modern notion that the development of one''s personality is a major purpose of marriage, the increasing amount of choice in reproduction and the phenomenon of social fragmentation and atomization, had taken the problem of divorce in new directions, despite the tenacity of the law staff''s attachment to its outmoded ideological conception of marriage.


Monstrum horrendum, informe, ingens, cui lumen ademptum.

In his 1973 work on the life and career of Karl Llewellyn, William Twining accurately described Prajudizienrecht as "Llewellyn''s first project to fall squarely within the area of jurisprudence," 226 in which "[a]lmost all [his] references were to American works." 227 Recht, Rechtsleben und Gesellschaft is not substantially different in this last respect, despite Max Weber''s supporting role and Eugen Ehrlich''s cameo appearances. The works are stronger evidence of Llewellyn''s early engagement with the ideas of Oliver Wendell Holmes, Jr., Benjamin Cardozo, Roscoe Pound, Jerome Frank, the American philosopher John [*771] Dewey, the American sociologist William Graham Sumner and Anglo-American linguists C. K. Ogden and I. A. Richards, than with German thinkers. The Leipzig books are thus not some sort of exotica, but rather key components of the Llewellyn canon, essential for an understanding of the germination of the mature Llewellyn''s thinking. Despite their language and the testimony they obviously bear to the breadth of Llewellyn''s reading, both Prajudizienrecht and Recht, Rechtsleben und Gesellschaft are profoundly American books, steeped very deeply in the crosscurrents of the American jurisprudence of their day. Ironically, as Lon Fuller was among the first to recognize, 228 it may have taken the discipline of writing in a foreign language to get the young Llewellyn to make some of his most significant early contributions to American legal thought. For taken together, the Germanica provide -- more than any of his other published works -- the most detailed exposition of the origin, nature and function of legal rules. These German works thus round out the sociological study of law that Llewellyn later undertook in his "Law in Our Society" lectures, which Twining identifies as somewhat defective in this respect. 229 Moreover, the Leipzig books'' focus on explaining the phenomenon of legal certainty and regularity through social theory seems decidedly different, at least in emphasis, from those later lectures'' concentration on a more particularized analysis of the specific tasks set for law, i.e., his theory of "law-jobs" and the "crafts" of law, such as judging, advocacy and counselling. 230 Thus, they significantly complete our knowledge of Llewellyn the theorist of American legal sociology.

It is, however, not enough merely to plant the flag, claiming the works of Llewellyn''s Saxon sojourns for American jurisprudence. For Prajudizienrecht and Recht, Rechtsleben und Gesellschaft arose at the same crucial time, springing from the same intellectual environment and reflecting the same concerns, as one of the defining moments in twentieth century American jurisprudence: the debate between Llewellyn and Dean Roscoe Pound of Harvard. This was the event that was, if not the birth, [*772] then at least the christening of American Legal Realism. 231

This debate began with the publication of Llewellyn''s article A Realistic Jurisprudence -- The Next Step 232 in the Columbia Law Review in 1930. Twining nicely describes the article''s contents and manner of execution:

In 1929 Llewellyn was invited to give a paper on "Modern Concepts of Law" at a Round Table on Current Trends in Political and Legal Thought. . . . Llewellyn was particularly well qualified to identify some of the new trends, to place them in the context of their intellectual history, and to suggest possible lines for future development. In the first round of the realist debate he missed the opportunity. Instead he wrote a loosely organized paper which starts with the rejection of a general definition of "law," explores perceptively some of Pound''s limitations as a theorist, mixes in some quasi-Hohfeldian ideas about remedies and rules, and ends with a plea for an interdisciplinary approach to legal research, with human behaviour as an important focus. A pot pourri of interesting ideas, some of them as yet only half formed, this paper represents a definite step in Llewellyn''s development as a theorist, but it is not to be recommended to someone who seeks a coherent introduction to realism. 233

It was also an article that came directly out of Llewellyn''s first trip to Germany and broached themes that he would return to on his second. In a 1930 letter to the Social Science Research Council Llewellyn indicated that he had not completed the first "job" he had planned to do during his first academic trip to Leipzig, a book on law and the social sciences. He describes his problems with it as follows:

The book on Law and the Social Sciences did not develop. . . . [I]t proved, as soon as a chapter or two had been worked out, that "law" was itself an unanalyzed subject-matter. I had known that "law" contained a philosophy, an art and a hope for a science, and had thought that knowledge enough. I had not realized that a worthwhile comparison with other social disciplines was impossible until the subject-matter of a science of law in the descriptive sense had been pieced together, at least in careful outline. 234

Llewellyn went on to indicate that, from his work on this "preliminary job," he had produced "an article on the subject matter [*773] of a science of law, now in press with the Columbia Law Review." 235 This article was in fact A Realistic Jurisprudence -- The Next Step, 236 published in April 1930. It thus emerges that one of Llewellyn''s most significant writings -- indeed, the work that effectively named the Legal Realist movement -- grew directly out of his German experience. The article addressed the very topics that Llewellyn would return to treat with greater felicity in the book that resulted from his second Leipzig visit, Recht, Rechtleben und Gesellschaft.

The Columbia piece, quite apart from its substance, also had a fair amount to say about Roscoe Pound. While praising him for his lapidary phrasings and illuminating insights, Llewellyn criticized Pound for failing to follow through systematically and for the indeterminate level of discourse in his writings, which fluctuated between "considered and buttressed scholarly discussion . . . bedtime stories for the tired bar . . . [and] thoughtful but unproved essay." 237 Pound''s initial response to the piece was quite positive, indeed magnanimous, very much the ox disdaining to swat the mosquito. He wrote to Llewellyn: "May you be spared the necessity of making bar association addresses and popular talks which falls to the lot of a voice crying in the wilderness as mine had to be so long. Very likely it got injured in the process. . . . Better things are at hand with the next generation. Veni fortior me post me [Come after me, stronger than I]." 238 Pound''s mention of "bar association addresses," however, suggests that Llewellyn''s stinging phrase "bedtime stories for the tired bar" had found its mark.

In the same year that A Realistic Jurisprudence -- The Next Step appeared, Bramble Bush and Law and the Modern Mind were also published, with Llewellyn and Jerome Frank apparently forming a mutual admiration society, at least temporarily. 239 In October of that year Frank sent a copy of his book to his former University of Chicago professor, now the Dean of the [*774] Harvard Law School, Roscoe Pound. 240 The work devoted an entire chapter and an appendix to a critical examination of Pound''s views. Despite the generally respectful tones in which the criticisms were delivered and the not ungenerous admixture of praise, Dean Pound could not have been pleased to find portions of his work characterized as "patently superficial," 241 "irrational" 242 and "a small boy with a grown-up vocabulary talking of an ideal father." 243 Furthermore, Pound probably was not amused to find his thinking on the key question of legal certainty exposed as extremely inconsistent. 244 One mosquito could be ignored; two were beginning to seem like a swarm. Additionally, the book contained a very pointed attack on his fellow Harvardian, the eminent conflicts scholar Joseph Beale. Pound''s wounded amour propre indeed led him to imagine things about the book''s treatment of him that were not true: in a letter to Llewellyn, Pound accused Frank of misquotation, a charge that enraged Frank and one that proved to be entirely baseless. 245

Late in 1930 Pound turned down an invitation from the editor of the Encyclopedia of the Social Sciences to write an article on contracts. Llewellyn was the second choice, but his idiosyncratic work product induced the editor to entreat Pound to work with Llewellyn on fixing the piece up. Despite much correspondence on the subject, the collaboration never got off the ground. What almost certainly aborted it was the entirely unanticipated appearance of Pound''s The Call for a Realist Jurisprudence 246 in the March 1931 Harvard Law Review. Pound had never mentioned the article in all his correspondence with Llewellyn.

Even if the appearance of the article surprised Llewellyn, he should not have been surprised by the manner in which it was written, having previously diagnosed Pound''s propensity for writing "thoughtful but unproved essay[s]." 247 What Pound in fact attempted was a composite portrait of "The Realist," a [*775] creature who resembled no living scholar but who, as stitched together by the hand of the wily Dr. Pound, combined the fact-skepticism and psychologism of Frank, the social-scientism of Underhill Moore and the rule-skepticism and business orientation of Llewellyn. Pound gave no citations or evidence to support his charges. Llewellyn took him to task for this failure in the response to Pound''s article -- Some Realism about Realism 248 -- on which he collaborated with Frank and which he waged a strenuous campaign to have published in the Harvard Law Review.

What Pound is responsible for in his article, in fact, is the very first appearance of the "Frankllynstein Monster," that is, the tendency for many critics of Realism to see it as both monolithic and extreme. The very different images presented to the world by Jerome Frank and Karl Llewellyn got conflated for posterity or at least for the posterity that did not read very carefully or read German -- when clearly they ought not to have been. This the later estrangement between Llewellyn and Frank showed: Frank, with his single-minded focus on the judicial personality and his contemptuous dismissal of any need for legal certainty, was the true radical, while Llewellyn was only a raving moderate, or, as Frank perceptively dubbed him and his fellow rule-skeptics, "left-wing adherents of a tradition" 249

There are portions of the early Llewellyn that can certainly be read to support Pound''s handiwork. What tended to sum up Llewellyn''s jurisprudence, for want of English versions of his Leipzig writings, was Bramble Bush and, in particular, its "indeterminist," nay, antinomian, discussion of the "Janus-faced" doctrine of precedent 250 and its most (in)famous sentence: "What these [legal] officials do about disputes is, to my mind, the law itself." 251 How Frankean this rings in isolation and how [*776] falsely! It suggests a single-minded focus on people, like Frank''s elevation of judicial personality in Law and the Modern Mind, 252 as the key to understanding. Its implied antithesis was presumed to be "what rules tell officials to do about disputes." Hence Llewellyn was assumed to stand for a conception of law as untrammeled official discretion, a hair''s breadth from caprice. The later Llewellyn, the Llewellyn of The Common Law Tradition, 253 interested in "major steadying factors in our appellate courts, 254 could be seen as the standard story of the Young Turk mellowing with age, repenting his early radicalism as peches de jeunesse.

But this story clearly was not true. Had the Leipzig books been rendered into English, its falsity might have been more widely realized. Llewellyn never was a radical, prose and personality style to the contrary notwithstanding. He looked at the legal system and found not patternless subjectivity or Solomons deeming dooms, but regularity, consistency and a large quantum of interpersonal objectivity. Unsatisfied with orthodox explanations, he sought to find out whence they came. He was engaged by the ideas of Jerome Frank but passed them through the sieve of his own mind. In so doing, he assimilated them into his own vision. "In [Law and the Modern Mind''s] eager attack on the illusion of complete certainty it under-emphasizes what certainty there is; in its perception of the importance of particulars it well-nigh denies the importance of generals." 255

Prajudizienrecht has an early section, 8b, entitled "New Perspectives on Legal Uncertainty." 256 What first strikes one about it is its numbering: Why 8b? Why not 10? Presumably because it was added after the rest of the sections had already been numbered and internal cross-references could no longer be altered. This had most likely happened by January 1930 at the latest. 257 Frank''s book came out in September of that year and [*777] Llewellyn reviewed it for Columbia early the following year. Section 8b is Llewellyn''s response in Prajudizienrecht to having read Law and the Modern Mind. It accepts the force of Frank''s argument that to hope for certainty is unrealistic and foolish, but only at the "micro" level, the level of the individual case, the outcome of which was indeed "virtually unpredictable." 258 By the same token, it insists on Llewellyn''s own central insight, that at the "macro" level, over the great run of cases, there is a large amount of certainty to be had.

Frank was clearly a better writer than Llewellyn and his slash-and-burn argumentation, in the service of an arresting idee fixe, has far more verve and panache. Llewellyn''s ideas, however, are less reductionist and monochromatic, subtler and more textured and, in the final analysis, more accurate about what they are meant to describe.


Prajudizienrecht and Rechtsleben und Gesellschaft are among the earliest witnesses to Llewellyn''s obsession with knowing the truth about law, and knowing it sociologically, through a knowledge of society and of law''s relations with society. Starting out in Leipzig, he took it with him through his career; it informed the jurisprudence of the Uniform Commercial Code and his classes on "Jurisprudence" and "Law in Our Society" in particular. He was planning to bring it back with him to Germany for final, definitive statement when he died. One thinks of nothing so much as of Jacob wrestling with his angel: "I will not let thee go except thou bless me." 259


n1 Some summary assessments of Llewellyn: "the undisputed guru of [Legal] Realism" (MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 171 (1992)); "[O]ne of the most interesting and original figures in twentieth-century American jurisprudence." (GRANT GILMORE, THE AGES OF AMERICAN LAW 115 n.11 (1977)); "the most fertile and inventive legal scholar of his generation" (WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT vi (Univ. of Okla. 1985) (1973)); "spokesman and most important leader of the legal realists" (Manfred Rehbinder, Karl N. Llewellyn als Rechtssoziologe, 18 KOLNER ZEITSCHRIFT FUR SOZIOLOGIE UND SOZIALPSYCHOLOGIE 532 (1966)); "He was a man of uncommonly strong creative intellect, a forceful disposition [eine Kraftnatur,] a fighter for law and justice, a man who marvelled at the Beautiful in art and nature. He was an American through and through, and through and through a citizen of the world." (Max Rheinstein, Karl Nickerson Llewellyn, 1893-1962, 27 ZEITSCHRIFT FUR AUSLANDISCHES UND INTERNATIONALES PRIVATRECHT 601, 605 (1962)); "the greatest Realist of the 1930''s" (Bruce Ackerman, Book Review, 104 DAEDALUS 119, 129 n.27 (1974)); "one of the ablest, subtlest most hard-working of Holmes'' disciples" (Karl Llewellyn, Law Expert, Dies, N.Y. TIMES, Feb. 15, 1962, at 29 (quoting Jerome Frank)); "[Llewellyn''s earlier work was] the most basic and thoroughly thought-out sociological theory of law which has yet appeared." (id., quoting Roscoe Pound).

This is not to say that Llewellyn was without his detractors. TWINING, supra, at 114. But at least for the moment, the "Karlo-philes" seem to have carried the day over the "Karlo-phobes."

n2 The achievement for which practicing lawyers best remember him is probably his role in drafting the Uniform Commercial Code. See TWINING, supra note 1, at 270-340. He is also remembered for the groundbreaking CASES AND MATERIALS ON THE LAW OF SALES (1930); his 1929-30 Columbia lectures published under the title of BRAMBLE BUSH (1930), a vade mecum for beginning law students; and THE COMMON LAW TRADITION (1960), a magisterial study of the appellate decisionmaking process. Almost as well known is his collaboration, certainly the first of its kind in American law, with anthropologist E.A. Hoebel on field work on a southern Montana Indian reservation, resulting in THE CHEYENNE WAY (1941), applying the "case method" to a study of dispute resolution among the Cheyenne.

n3 The German-language works include:

1. PRAJUDIZIENRECHT UND RECHTSPRECHUNG IN AMERIKA (1933) [hereinafter PRAJUDIZIENRECHT], translated under the title THE CASE LAW SYSTEM IN AMERICA (Paul Gewirtz ed. & Michael Ansaldi trans. 1989) [hereinafter CLSA]. The work, written between 1928 and 1932, was published by Theodor Weicher Verlag, an academic press in Leipzig, Germany. Citations to this work will be to CLSA, the 1989 English translation, except where otherwise indicated. For information on the genesis of this book, see infra notes 31-41 and accompanying text;

2. the posthumously published RECHT, RECHTSLEBEN UND GESELLSCHAFT [LAW, THE LIFE OF THE LAW AND SOCIETY] (Manfred Rehbinder ed. 1977) [hereinafter RRG]. It has not yet been translated into English. For information on the genesis of the book, see infra notes 63-64 and accompanying text;

3. two essays in German law reviews, Uber den Rechtsunterricht in den Vereinigten Staaten [Legal Education in the United States], 79 JHERINGS JAHRBUCH 233-66 (1928-29) and Die deutsche Justiz vom Standpunkt eines amerikanischen Juristen [An American Lawyer Looks at German Justice], 1932 JURISTISCHE WOCHENSCHRIFT 556;

4. Das Recht in der Gesellschaft [Law in Society] (unpublished manuscript); and

5. miscellaneous unpublished guest lectures at German universities and German-language poems, located among his papers in the collection of the library of The Law School of the University of Chicago.

n4 See supra note 3.

n5 See infra text accompanying notes 99-101. One topic with which this Article does not deal is the attempt to delineate the influence of German law and legal scholarship on Llewellyn''s later work on the Uniform Commercial Code. See generally James Whitman, Note, Commercial Law and the American Volk: A Note on Llewellyn''s German Sources for the Uniform Commercial Code, 97 YALE L.J. 156 (1987).

n6 See generally TWINING, supra note 1, at 89-91. Ulrich Drobnig''s unpublished manuscript "Llewellyn and Germany" is only known to the author through William Twining''s account of it. See id. at 413 n.8 (indicating Twining''s use of Drobnig''s paper as the chief source for his account of Llewellyn''s sojourns in Germany).

n7 For the information that the surname "George" is Welsh I am indebted to my homonymous colleague thanked at the beginning of this article. Llewellyn''s parents apparently chose the name "Karl" after a character in THE STUDENT PRINCE. TWINING, supra note 1, at 87.

n8 Id. at 89.

n9 It is apparently just a matter of chance that the book we have is PRAJUDIZIENRECHT UND RECHTSPRECHUNG IN AMERIKA rather than DROIT DECISIONNEL ET JURISPRUDENCE EN AMERIQUE. Llewellyn''s father happened to meet a German-American acquaintance in a drugstore and told him that he wished to send his son abroad to further his education, either in Germany or France. This acquaintance happened to have a brother living in Schwerin, in the Mecklenburg region of eastern Germany. Hence, it was to the Realgymnasium in Schwerin that Llewellyn went. Indeed, it was in the house of this brother, a teacher, that the young Karl lived during his time at the Gymnasium. Rehbinder, supra note 1, at 553 n.3.

n10 TWINING, supra note 1, at 89; see id. at 89-91 & 479-87.

n11 A detailed discussion of Llewellyn''s youthful contacts with Germany is beyond the scope of this Article. Nonetheless, I might just add one detail to Twining''s account, TWINING, supra note 1, at 479-87, of Llewellyn''s famous "war adventure" in which he volunteered and served in the German army in World War I, culminating in his being injured in the first battle of Ypres and receiving the Iron Cross (second class). Twining''s account judiciously sifts a number of source materials, most of which, however, ultimately derive from Llewellyn''s own accounts of his "adventure." Twining indicates that Llewellyn''s motivations for joining up, while studying in Paris on leave from Yale College, were compounded of a desire for adventure, pro-German sympathies, revulsion at the extremes of anti-German sentiment in France, and the like.

To all these factors there can be added another factor of which Twining was apparently unaware: love or, more precisely, a desire to impress the highly patriotic family of a young woman, Else Hagen, with whom he was then "as good as engaged." This information derives from Llewellyn''s close Gymnasium friend Hans Lachmund, with whom Llewellyn discussed his war adventure both at the time and subsequently. Letter from Hans Lachmund to Manfred Rehbinder, cited in Manfred Rehbinder, Editor''s Introduction, RRG, supra note 3, at 10 [hereinafter Rehbinder, Editor''s Introduction]. Lachmund also says that Llewellyn explicitly denied enlisting because he considered the German cause just.

n12 The Llewellyn papers at the University of Chicago bear witness to an extensive correspondence that Llewellyn was able to carry on in German over most of his adult life, both with colleagues and personal friends. Furthermore, Llewellyn was able to teach two courses in German at the University of Leipzig.

n13 In his preface to PRAJUDIZIENRECHT, Llewellyn thanks a number of people for going over and correcting the German of the manuscript. CLSA, supra note 3, at xxxv-xxxvi.

n14 TWINING, supra note 1, at 89. As someone who has spent a fair amount of time poring over and translating Llewellyn''s German, and who finds his English at times rather trying, I mostly concur in this reaction (while recognizing that such things are, to a great extent, a matter of taste). The clarity of PRAJUDIZIENRECHT seems startling when compared with the murky prose of, for example, Llewellyn''s 1942 article American Common Law Tradition and American Democracy, 1 J. LEG. & POL. SOC. 14, reprinted in KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 282 (1962). Lon Fuller had a similar reaction:

If [PRAJUDIZIENRECHT is translated into English], I should like to add the personal wish that the Teutonic sense of order which seems to pervade the style and arrangement of the present work may carry over into the English edition. For the book as it now stands offers an irrefutable demonstration of the fact that vigor and originality of thought are not necessarily incompatible with a degree of stylistic discipline.
Lon Fuller, Prajudizienrecht und Rechtsprechung in Amerika, 82 U. PA. L. REV. 551, 553 (1934) (book review). The "discipline" may derive from the German reader-editors of Llewellyn''s manuscript. See supra note 13.

By the same token, Llewellyn''s German also sounds rather "flatter" and less stamped with his distinctive personality than his English. This is admittedly the judgment of the author, a non-native speaker of German, who thus lacks a native''s Sprachgefuhl; others may well disagree. See, e.g., Rheinstein, supra note 1, at 604 (describing the German prose style of PRAJUDIZIENRECHT as just as strongly idiosyncratic [eigenwillig] as Llewellyn''s English writings). The chief virtue of Llewellyn''s German is that it is largely, though not entirely, free of his besetting faults of catachresis and neologism. See infra notes 165 & 185. However, Llewellyn''s posthumously published German book RECHT, RECHTSLEBEN UND GESELLSCHAFT, seems to suffer from that numbing hyperabstractness characteristic of much high-academic German prose.

The author''s reaction to Llewellyn''s English is apparently shared by some German readers. While recognizing that Llewellyn was a published poet and citing Max Rheinstein''s appreciation of Llewellyn as "an artist in his inmost being" (im innersten Grunde Kunstler), Manfred Rehbinder, the Swiss Llewellyn scholar who edited and oversaw the posthumous publication of RECHT, RECHTSLEBEN UND GESELLSCHAFT, went on to say that "[u]nfortunately, even in his works on legal sociology, he often abandons his footing in sober scholarly diction and lets himself get caught up in the flow of language and glides into poetry." Rehbinder, supra note 1, at 535. Similarly, Rehbinder approvingly cites another German scholar''s reproach to Llewellyn for "[having] clothed his ideas in an impressionistic form that leaves a great deal unclear." Id. at 553 n.15 (quoting criticism of legal sociologist Nicholas Timasheff).

n15 The bank''s in-house law department would shortly be absorbed by the law firm of Shearman & Sterling.

n16 See generally TWINING, supra note 1, at 46-51 (discussing the study of curricular reform undertaken at Columbia); LAURA KALMAN, LEGAL REALISM AT YALE 1927-1960 71-74 (1986) (same).

n17 TWINING, supra note 1, at 103-04.

n18 See Natalie E. H. Hull, Reconstructing the Origins of Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange over Legal Realism, 1989 DUKE L.J. 1302, 1321-22 [hereinafter Prequel].

n19 Hermann Kantorowicz (1877-1940), legal historian and key adherent of the "Free Law" movement, was Professor of Law at the University of Freiburg and subsequently at the University of Kiel. After the Nazis stripped him of his post in 1933, he taught in the United States and England. His article Some Rationalism About Realism, 43 YALE L.J. 1240 (1934), was his contribution to the aftermath of the Llewellyn-Pound debate. For details of Kantorowicz''s role as a leading Freirechtler, see James E. Herget & Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 VA. L. REV. 399, 412-15, 446-47, 450-51 (1987).

n20 Samuel Klaus, Karl Llewellyn, Prajudizienrecht und Rechtsprechung in Amerika, 43 YALE L.J. 516, 516-17 (1934) (book review).

n21 The "deanship crisis" came to a head in the spring of 1928, shortly before Llewellyn left for Germany. It was precipitated when Nicholas Murray Butler, the autocratic President of Columbia University, appointed Young B. Smith, a "moderate," as Dean of Columbia Law School, passing over Herman Oliphant, the candidate of the Realists/Scientists, who had been the prime mover behind the curricular reform study and whom Butler had previously hinted he would appoint. TWINING, supra note 1, at 47. Many faculty members were outraged that Butler had failed to consult with them on his selection of a Dean. The crisis culminated in the resignation, en masse, of Oliphant, Moore, Yntema, Douglas and Marshall. See id. at 52-54 (discussing deanship crisis); KALMAN, supra note 16, at 74 (same). Despite this exodus of most of his Realist colleagues, Llewellyn remained at Columbia where, together with Edwin Patterson, he was one of "the two most outspoken realists on the faculty." KALMAN, supra note 16, at 78. This decision to stay behind, according to Grant Gilmore, may have soured Llewellyn''s relations with Underhill Moore. See TWINING, supra note 1, at 103-04 & n.77.

Ironically, Llewellyn afterwards indicated that he considered Young B. Smith to be a realist. See CLSA, supra note 3, at 93 n.2 (giving a list of judges and legal scholars Llewellyn regarded as modern in their thinking and/or engaged in research into "legal facts"). Smith, however, does not figure among the realists listed by Llewellyn in the two famous articles he wrote in his debate with Harvard Law School Dean Roscoe Pound, A Realistic Jurisprudence -- The Next Step, 30 COLUM. L. REV. 431, 454 n.22 (1930) [hereinafter Next Step], reprinted in KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 3 (1962) and Some Realism about Realism, 44 HARV. L. REV. 1222, 1226 n.18 (1931) [hereinafter Some Realism], reprinted in KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 42 (1962). In the latter article, Llewellyn does include Smith in the ambiguous category of "some others," scholars in addition to the 20 explicitly labeled Realists against whose works Llewellyn attempted to test Dean Pound''s assertions about characteristic features of Realist scholarship.

For an interesting study of Llewellyn''s changing roll call of realists, see Natalie E.H. Hull, Some Realism about the Llewellyn-Pound Exchange over Realism: The Newly Uncovered Private Correspondence, 1927-1931, 1987 WIS. L. REV. 921 [hereinafter Llewellyn-Pound Exchange]. Professor Hull''s research indicates that Smith figured on a preliminary list of Realists Llewellyn proposed to Pound in a letter dated April 6, 1931 where he is included in a category Llewellyn defined as "realists who are thorough-going, but probably less extreme in their positions," a category in which, incidentally, he in that letter also included himself. Id. at 967-68. But see Some Realism, supra, at 1226 n.18 (Llewellyn describing himself as "both vociferous and extreme").

n22 Rehbinder, Editor''s Introduction, supra note 11, at 11. Llewellyn and his first wife were finally divorced in 1930. Id.

n23 CLSA, supra note 3, at xxxiii. Llewellyn refers to himself as a "Carnegie International Professor."

n24 See Letter from Karl Llewellyn to Walter R. Sharp, Secretary of the Social Science Research Council Committee on Grants-in-Aid (Mar. 7, 1930) (Karl Llewellyn Papers, University of Chicago) [hereinafter Sharp Letter] (explaining failure to complete projected research project during Leipzig visitorship).

n25 Id.

n26 See infra text accompanying note 232.

n27 CLSA, supra note 3, at xxxiii.

n28 At first sight, the statement in the text might appear to be cast in doubt by CLSA, supra note 3, at xxxvii, which indicates that the "cases-and-materials" portion of PRAJUDIZIENRECHT was not completed until the spring of 1931, well after Llewellyn''s first visitorship at Leipzig ended. This doubt is strengthened by the identification, on the title page of PRAJUDIZIENRECHT, of Llewellyn''s chief case translator, Wolfram v. Metzler, as an apprentice lawyer [Referendar] in Berlin. It seems far likelier that Metzler was a law student whom Llewellyn met at Leipzig in 1928-29 and then commissioned to translate various cases into German, rather than someone the Leipzig faculty recommended long-distance to Llewellyn in New York preparing for his first visit to Leipzig. Furthermore, the period from the summer of 1927 through the winter of 1928 seems too short a time for the 60 odd cases (plus assorted supplementary materials) published as the second part of THE CASE LAW SYSTEM IN AMERICA to have been translated, revised and printed up for use by Llewellyn''s students. Even so, Llewellyn''s description of the course as a Praktikum clearly implies that cases were used. The most plausible conjecture is that the Leipzig class read the cases Llewellyn is identified as having translated himself. In any case, the laconic notation "work concluded: Spring 1931" really does not say any more than that Llewellyn put the finishing touches on that portion of the book at that time.

n29 See supra note 28.

n30 Rehbinder, Editor''s Introduction, supra note 11, at 12. In the Llewellyn papers for this period is an invoice from a German bookseller relating to the purchase of Weber''s works. It is not clear when Llewellyn first read Weber or Ehrlich. Llewellyn credited the Leipzig-born Harvard political scientist Carl Joachim Friedrich, who had emigrated to the United States in 1922, with having "led [him], decades back, to Max Weber." Karl Llewellyn, American Common Law Tradition and American Democracy, 1 J. LEG. & POL. SOC. 14, 15 (1942), reprinted in KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 282, 283 (1962). What is likely is that he was "introduced" by Friedrich to Weber in the United States, but used his time in Leipzig to deepen the acquaintance. Twining reports that Llewellyn devoted some time around 1935 to attempting a translation of Weber. TWINING, supra note 1, at 418 n.90.

n31 This document, although signed by Llewellyn and H. Siber, Dean of the Leipzig law faculty, was not the final contract agreement on the book. In a subsequent letter dated May 18, 1930 Siber tells Llewellyn not to execute the February 20 draft because certain changes had had to be made, most notably a decision to publish the bulky Part II (the translated cases and materials and Llewellyn''s case notes) in a separate volume. But since the May 18 letter identifies the specific provisions to be changed, it is a fairly safe assumption that other provisions of the contract remained unchanged in the final document.

n32 The subvention was for an amount of 4000 Reichmarks. See Rehbinder, supra note 11, at 9.

n33 This is the apparent construction to be placed on sections 1 and 2 of the contract:

?.1 The Faculty of Law undertakes the publication of the work written by Professor K.N. Llewellyn: "Introduction to the American Precedent System." It will enter into a publication contract in its own name, preserving the interests of the author, with Theodor Weicher Verlag, Leipzig, and will make more specific arrangements therein relating to typeface, format, number of copies, retail price and delivery of author''s copies. Professor K.N. Llewellyn agrees to make no other use, including any partial use, of his work.

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