B004E3WO62 EBOK

by Morton J. Horwitz

  The economist starts from different premises than the lawyer, Berle and Means maintained.

  He is preoccupied not with the rights of property but with the production of wealth and distribution of income. To him property rights are attributes which may be attached to wealth by society and he regards them and their protection, not as the inalienable right of the individual or as an end in themselves, but as a means to a socially desirable end. . . .' 37

  The separation of ownership and control therefore creates a situation under which shareholders,

  by surrendering control and responsibility over the active property, have surrendered the right that the corporation should be operated in their sole interest,-they have released the community from the obligation to protect them to the full extent implied in the doctrine of strict property rights. . . . They have placed the com munity in a position to demand that the modern corporation serve not alone the owners or the control [group] but all society.

  More than any other development, the separation between ownership and control in the modern corporation became the catalyst for the legal realist reconceptualization of private property rights. The large national corporation not only drew into question the orthodox separation between public and private law but it also challenged the notion that modern property could continue to be represented as a pre-political right and not as a creature of social choice.

  From the beginning of the twentieth century, Classical Legal Thought found itself confronted by an increasingly powerful critique of its basic premises. In one legal field after another, Progressive thinkers challenged both the political and moral assumptions of the old order and the structures of legal doctrine and legal reasoning that were designed to represent those assumptions as neutral, natural, and necessary. What is the relationship between Legal Realism and this Progressive critique?

  Legal Realism was neither a coherent intellectual movement nor a consistent or systematic jurisprudence. It expressed more an intellectual mood than a clear body of tenets, more a set of sometimes contradictory tendencies than a rigorous set of methodologies or propositions about legal theory.

  Indeed, defining Legal Realism with precision is not all that easy. It usually refers to the body of legal thought produced for the most part by law professors at Columbia and Yale Law Schools during the 192os and 1930s. Some of the great names are Karl Llewellyn and Robert Lee Hale at Columbia and Walter Wheeler Cook and Arthur L. Corbin at Yale.

  The first problem with this definition is that it draws too sharp a distinction between the Progressive legal thought that began to crystallize after the Lochner decision in 1905 and later post-World War I legal thought.' For many purposes, it is best to see Legal Realism as simply a continuation of the reformist agenda of early-twentieth-century Progressivism. Too much has been made of the distinction between Legal Realism and what Roscoe Pound had called "sociological jurisprudence" before World War I. When Pound delivered his famous 1931 criticism of Realism, as we shall see,2 it was not that Realism had come to represent some heretical deviation from the core insights of Progressive legal thought but that Pound himself had begun to change. There is much more continuity than discontinuity between Realism and the underlying critical inspiration of Charles Beard's An Economic Interpretation of the Constitution (1913) or of Hohfeld's "Fundamental Legal Conceptions" (1913) or, indeed, of Pound's great pre-war writings.

  The effort to portray Legal Realism as a sharply delineated body of legal theory confined to the 192os and 1930S is usually accompanied by an effort to represent Realism as either representing some distinctive new methodology or embodying a serious systematic jurisprudence. Not only does this interpretation tend to suppress the obvious contradictions within Realism; it also renders Realism too "academic" and not sufficiently connected to real political struggles. For, above all, Realism is a continuation of the Progressive attack on the attempt of late-nineteenthcentury Classical Legal Thought to create a sharp distinction between law and politics and to portray law as neutral, natural, and apolitical.

  But there are also enough important discontinuities-or, at least, changes in emphasis-between pre- and post-World War I Progressive legal thought to permit us to treat Legal Realism as a distinct intellectual outlook. While pre-war reformist legal thought tended to be court-centered-with the dramatic exception of the movement for workers' compensation;-Legal Realism concentrated much of its energy in arguing for statutory or administrative change. Legal Realists, especially after the New Deal came to power, were also much more self-conscious than their Progressive predecessors in attempting to legitimate social reform and social engineering in the emerging regulatory state.

  Perhaps the most significant difference between Realism and its pre-war reformist predecessors can be expressed in terms of skepticism about reason and morality. Like their European counterparts, American post-World War I intellectuals experienced a sense of doubt, if not despair, about the possibilities of realizing the Enlightenment's ideal of reason.' Pre-war Progressive intellectuals represented what might be called a Victorian world view, one that, while often deeply skeptical of revealed religion, was nevertheless self-confident about the ability of reason to arrive at civilized and humanitarian values.' The Realist generation, by contrast, had lost much of the pre-war faith in reason, both as a reliable source of moral understanding and as a powerful internal guide to law.6

  Realist skepticism produced what is probably its most lasting contribution: its critique of the claims of orthodox legal reasoning to be able to provide neutral and apolitical answers to legal questions, answers that were said to be neutral because they were determinate and non-discretionary.

  The Emergence of Realism

  Nothing has so shaped-and distorted-our picture of Legal Realism as the famous exchange over Realism between Karl Llewellyn and Roscoe Pound in 19301931. The list of twenty Realists compiled by Llewellyn in response to Pound's criticism has completely dominated historians' subsequent understanding of the meaning and significance of Legal Realism.? It is one of the ironies of legal history that the person who eventually became the undisputed guru of Realism, Karl Llewellyn, should also have been the leading inspiration for a picture of Legal Realism that is far too narrow and confined, and far' more systematic and dogmatic, than anything the intellectually pluralistic and methodologically catholic Llewellyn could ever have desired.

  Legal Realism received both its name and its designation as an intellectual movement when Llewellyn, a thirty-seven-year-old Columbia law professor, published an article in the Columbia Law Review of April 1930 entitled "A Realistic Jurisprudence-The Next Step."8 Realism became famous when, a year later, the sixty-one-year-old dean of Harvard Law School, Roscoe Pound, at the height of his reputation as the only world-class American legal thinker since Holmes, deigned to criticize Realism.' And Llewellyn, in the midst of a failed marriage and perhaps seized by fear that the Pound article might damage a budding academic career or, more likely, seeing the opportunity to gain almost instant recognition as the leader of a movement, prepared a rigid and dogmatic reply that was very much out of character with the normally non-sectarian nature of his thought.10 The reply included his famous "sample" of twenty Realists, a list that, despite Llewellyn's statement that "there are doubtless twenty more," has been taken by all subsequent historians as the core material for studying Realism, to be slightly altered, if necessary, by adding two or three names, but essentially containing the particulars from which any general picture of Realism would need to be drawn. 11 Now, thanks to N. E. H. Hull, who has recently discovered a more elaborate unpublished list of Realists compiled by Llewellyn and sent to Pound in the midst of the controversy, we can see Llewellyn's own attempt to create a somewhat more pluralistic picture of Realist thought. 12 This list, of course, has never been known by historians, and one might speculate on how Realism might have looked if this second list had become the starting point for a definition of Realism. But, even so, I wish to show that in 1931 Llewellyn wa
s in no special position to define Realism and that both his own still limited intellectual horizons and his powerful intellectual prejudices produced a way of thinking about Realism that has distorted our understanding of its significance ever since.

  I wish to make three points. First, because Llewellyn's debate was with Pound, the leading figure of pre-World War I Progressive or sociological jurisprudence, historians have been misled into looking for sharper distinctions between sociological jurisprudence and Legal Realism than are justified.13 For most purposes, I would suggest, both intellectual movements should be understood as subcategories of pre- and post-World War I Progressive legal thought, and Legal Realism needs to be seen primarily as a continuation of the reformist attack on orthodox legal thought.

  Second, Llewellyn's list has produced a distorted picture of the meaning and significance of Realism. It is important to realize that, until 1929, when Llewellyn first delivered the paper that provoked Pound's reply, "jurisprudence came a poor second to commercial law" in Llewellyn's intellectual work. 14 Indeed, only two years earlier, after eight years in law teaching, Llewellyn for the first time began "to take a sustained interest in the nature of the appellate judicial process and of case law."" "In fact he published relatively little before 1930""-the year his first marriage ended after his wife left him for another man-and "several of his most promising lines of inquiry had not yet been worked up into publishable form." 17 In 1930-1931, Llewellyn was no more qualified to offer a general survey or synthesis of American legal thought than any number of law professors. He did not, in fact, really understand the existing state of American legal thought.

  One can only speculate on the relationship between. the apparent chaos in Llewellyn's personal life and his sudden move to jurisprudence. Did Llewellyn suddenly need an excessively systematic orientation-did he exaggerate the "scientific" as well as the methodological aspects of Realism-in order to reassert control over his own life?

  Third, Llewellyn's effort to define Realism in terms of a relatively coherent and systematic methodology has resulted both in a de-emphasis of the substantive political commitments of the Realists-their connection to the movement for political reform-and in a substantial over-emphasis on a now largely discredited strand of positivist and behavioralistic social science that has deprived us of the true richness of the intellectual and political heritage of Realism.

  The Controversy

  Llewellyn's "A Realistic Jurisprudence-The Next Step" was published in the Columbia Law Review in April 1930. Llewellyn had previously presented this paper at the Round Table on Current Trends in Political and Legal Thought of the American Association of Political Science in December 1929. Its original title was "Modern Concepts of Law."

  Reflecting the influence of his teachers (and former colleagues) at Yale, as well as his experiences of the Columbia curricular battle of 1928, it is the work of a brilliant novice and a fast learner. Llewellyn had studied with Hohfeld, Cook, and Corbin at Yale; and his Columbia colleagues Douglas, Oliphant, Moore, and Yntema had just resigned to join Cook at the newly established Johns Hopkins Institute devoted to law and behavioral social science.18

  Llewellyn's "A Realistic jurisprudence" is, in a word, an intellectual "cut and paste" job reflecting some existing tendencies in American jurisprudence read in conjunction with his newly acquired knowledge of German "free law" jurisprudence. 19 The ideas in the paper were clearly not represented as original, nor were they stated in an especially arresting or provocative manner. Llewellyn's biographer, William Twining, calls the essay "a pot pourri of interesting ideas, some of them as yet only half formed . . . it is not to be recommended to someone who seeks a coherent introduction to realism."20

  What induced Pound to reply, if that is what it was? "The Call for a Realist Jurisprudence," published in March 1931, is an extraordinarily interesting docu ment for anyone who wishes to situate Pound in relation to Progressive jursiprud- ence. By the time the New Deal came to power two years later, Pound seemed ready to begin his move both to more eccentric varieties of legal theory and to reactionary politics, culminating in his intemperate 1938 attacks on the administrative state.21

  But Pound's "Call for a Realist jurisprudence" is neither intemperate, eccentric, nor reactionary. In tone, at least, it is a respectful and even admiring parental admonition to young scholars, urging them not to be unbalanced, excessive, and, above all, dogmatic. Moreover, Pound emphasized that his intentions were not polemical. "It is much more important to understand than to criticize," Pound wrote, and he emphasized that too much criticism "achieve[s] an easy victory over straw men. . . ."22 "In a letter to Llewellyn," Twining informs us, Pound "congratulated himself on his long record of abstention from polemical jurispru- dence."223

  And yet Pound's criticism has rightly been labeled by Twining as "scholarly in conception but unscholarly in execution."24 Pound himself later admitted that it was written in haste at a time when he was burdened with other duties. Even so, what is it about the article that so "distressed" Llewellyn?

  First, it is, as Twining says, "a typical Poundian botch-pot" 25 filled with olympian generalities that had always been present in Pound's writing but that seemed to have gained the upper hand with his growth in eminence. The strand in Pound's intellect of Polonius-like tendentiousness appears to have begun to dominate his thinking at around this time. There is not one specific reference to a work of Realist jurisprudence in Pound's entire article. Perhaps he simply assumed that an impersonal tone could not be regarded as polemical. But for Llewellyn and his collaborator in response, Jerome Frank, Pound had done just what he denied doing-he had set up intellectual "straw men" since, as Llewellyn put it, "we knew of hardly anyone whom one might fairly suspect of holding any of the views critici[z]ed. ,26

  What was bothering Pound? Simply stated, from the very first page, Llewellyn's piece reacts like an attack on Pound. The one major idea in Llewellyn's article is a slight variation on round's famous and important distinction between law in books and law in action.27 But Llewellyn used this reference to Pound's authorship to attack him. "Only a man gifted with insight" could have created the distinction. "But only a man partially caught in the traditional precept-thinking of an age that is passing" would have still maintained respect for the law in books. Then: "I have no wish to argue the point. It will appeal, or it will not, and argument will be of little service."28

  Pound thus would have had every reason to feel personally slighted and even abused by Llewellyn. And Llewellyn? Why does he so peremptorily close off the argument? Is there some other arena in which he experiences the "real" issue taking place, so that "argument will be of little service"?

  But this was mild stuff compared to Llewellyn's page-length footnote attack on Pound. Pound's distinction, Llewellyn wrote, "is as striking in its values as in its limitations. It is full to bursting of magnificent insight. . . . I am not concerned here with whether prior writers may have contributed to, or anticipated, some or all of these ideas. Pound saw them, he formulated them, he drove them home. But these brilliant buddings have in the main not come to fruition."29

  "`Balancing of Interests" remains with no indication of how to tell an interest when you see one, much less with any study of how they are or should be balanced. "Sociological jurisprudence" remains bare of most that is significant in sociology. "Law-in-action" is left as a suggestion. . . . .. The limits of effective legal action". . . is left without study of the society to which law is supposed to have relation. i0

  The insight in Pound's writings "always . . . fails to penetrate . . . to the more systematic set-up of the material."

  One is tempted to see in the thinking of the one man and of the American school of sociological jurisprudence a parallel to the development of case law as a whole: accepting in the main what has been handed down; systematizing compartmentwise; innovating where need shows . . . but ad hoc only, with little drive toward or interest in incorporating the innovation. . . .;L

  One is
"embarrassed by the constant indeterminacy of the level of his discourse. At times the work purports clearly to travel on the level of considered and buttressed scholarly discussion; at times on the level of bed-time stories for the tired bar; at times on an intermediate level, that of the thoughtful but unproved essay . . . [sometimes] on the level of the after dinner speech. . . ." 31

  "There is value in this," the young law professor concluded. "There is value, even, in the legal bed-time story. But there is greater value to be had. What would one not give for the actual appearance of the long-awaited Sociological jurisprudence, if its author would integrate [into] it . . . those pioneering thoughts of his. . . ."33

  Thus, Pound could reasonably have read Llewellyn's article not only as impertinent but also as an ungenerous attempt to obscure Llewellyn's own reliance on Pound's ideas. Llewellyn's reference to the "long-awaited Sociological Jurispru- dence"-a work that continued to be awaited for another thirty years34-must have cut Pound deeply. And Llewellyn's very telling mockery of Pound's pontifical style-after-dinner speeches and legal bedtime stories for a tired bar-contained a set of demeaning and provocative images not only about Pound's ideas-which "have in the main not come to fruition"-but also about his increasingly pandering relationship to the established bar.