Llewellyn's meaning, I take it, is that the gap between the writing and teaching of these religious figures was, like the dichotomy between theory and practice or between law in books and law in action, also parallel to the rebellious/nonrebellious polarity within his own character. His rebellious side always turned against the abstract, the too theoretical, the academic-the law in books, if you will. By contrast, he had an instinct for the ordinary, the everyday, the down-toearth. "[H]e would take an intense interest in the minutiae of even the most mundane transactions and he would enthusiastically praise as 'lovely' or 'beautiful' examples of [technical solutions such as] the functional 'beauty' of mill-race and turbine." 142 His non-rebellious side always tended to idealize the law in actionto endow custom with a perhaps undeserved normativity. Here he sought to express his compliant or apologetic side.
Llewellyn thus suggested that by following "Jesus' and . . . Paul's living rather than . . . writing" he could overcome any contradictions between the abstract and the concrete, between his rebellious and his compliant sides.
Jerome Frank certainly appealed to Llewellyn's rebelliousness. He was incorporated into the list of twenty by Llewellyn as one of the "men peculiarly vocal in advocating new or rebellious points of views" at the same moment as Llewellyn characterized himself as "both vociferous and extreme." 143 That Frank and Llewellyn together should have been the founders of the Legal Realist movement is one of the best indicators of its diversity-if not its schizophrenia. Intellectually, they had little in common except an irreverence for authority and a contempt for the platitudes of orthodox legal discourse. They appear to have been drawn to each other's emotional volatility, exhibitionism, and rebelliousness. They were lucky to have been present at a particular moment in history when the Great Depression and the early New Deal swept away the legitimating premises of the old order and made things seem possible that just a short time before seemed impossible, if not illegitimate. Rebellion could be tolerated for a time.
The Significance of Realism
All Realists shared one basic premise-that the law had come to be out of touch with reality. Holmes's statement that "the life of the law has not been logic, it has been experience" was its battle cry. Pound's distinction between the law in books and the law in action was its most famous academic formulation.
The perception that institutions were out of touch was not only a major theme of post-Lochner legal thought, but of American critical social thought generally. From Turner's 1893 frontier thesis to Beard's 1913 An Economic Interpretation of the Constitution, the search for social explanations of institutions (not religious destiny or inherent racial or national character) came to express a widening skepticism of the orthodox explanations of things, as well as a mode of criticizing the system of legitimacy from which those explanations had derived. 144
The perception that law and life were out of sync produced many different forms of intellectual response. Many sought to show that while life had rapidly changed, law had lagged behind. Pound, for example, offered many versions of a cyclical theory within which legal systems fluctuated between generality and particularity, rule and discretion, and professional and lay norms of justice. 145 He seemed to suggest that the disparity between the law in books and the law in action was a temporary aberration, a lag, an abnormal departure from balance and equilibrium.
How one sought to explain the disparity between law and life was thus filled with unarticulated political premises. Did the disparity exist, as Pound had suggested, because legal learning continued to reflect the values and categories of an individualistic agricultural society that had evolved into an interdependent, urbanized, industrial society? Or was the problem, as Pound had also suggested, that a system of "mechanical jurisprudence" had moved law ever further away from society and that a better juristic method might have enabled law to stay in touch with life? 146 From the time Holmes wrote "The Path of the Law" in 1897, a major part of all critical jurisprudence had focused on this question of why legal thought had lost touch with reality. It produced a body of writing that cohered into an elaborate critique of the intellectual premises of Classical Legal Thought and represents some of the greatest contributions in all of American legal literature.
This attack on the juristic methods of the old order has been called the "revolt against formalism" or the shift to "scientific naturalism." 147 Both characterizations enable us to see the enormous similarities between the changes in the governing premises of philosophy, history, economics, and other social sciences around the turn of the century. But the emphasis on method often overstates these changes primarily as academic or intellectual discoveries unrelated to the enormous upsurge of social change and class struggle in the late nineteenth century and the crisis of legitimacy that it produced.
As we shall see in the next chapter,148 the distinction between law in books and law in action also led directly to an alliance between Progressivism and reformist social science. For example, the "Brandeis brief" presented to the Supreme Court by Louis D. Brandeis in the case of Muller v. Oregon (1908) extensively cited social science research into working women's lives to defend successfully a constitutional challenge to a maximum hours law for women. This focus on social fact, it needs to be emphasized, represented another important form of critique of that "heaven of legal concepts," those otherworldly abstractions haunting Classical Legal Thought, that Felix Cohen portrayed as the reason for its being out of touch with reality. It is important to appreciate fully the critical intentions of these early social scientists, many of them women, whose desire to pierce the veil of conventional appearances and grasp reality sharply differed from later value-free social science. By insisting that detailed knowledge of social fact represented a healthy antidote to highly apologetic forms of discourse and judgment, Progressives treated social science research as providing a necessary demystifying first step toward the goal of social reform. In short, social science was another way of undermining disembodied formalism.
In fact, the battle against formalism was waged on many different fronts. It represented a broad attack on the claims of Classical Legal Thought to be natural, neutral, and apolitical, which is precisely what the Langdellian slogan "Law is a science" was meant to proclaim.149 Some believed that, in principle, it was possible to create such a scientific system of neutral legal concepts, even though Classical legal thinkers had unfortunately allowed formalism to insulate the law from the pressures of reality. Therefore, the path of criticism of orthodoxy was to demonstrate how the incompetent legal reasoning of Classical thinkers had enabled legal thought to lose touch with reality. Hohfeld is such an example of the continuing hold of legal science over even the critics of orthodoxy."O When he died prematurely in 1919, he was the last Progressive system builder, the last reformist believer in the possibility of constructing a set of extremely abstract legal concepts and categories that could continue to be the basis for legal criticism.
But if no other Progressive sought to scale Hohfeld's grandiose heights, many nevertheless concentrated on showing that a better juristic method could produce more legitimate and more realistic results. Not only Pound but also Justice Benjamin N. Cardozo reflected this serene pre-war confidence that mechanical jurisprudence could he replaced by a better juristic method. Llewellyn's failure to include Justice Cardozo on his list of Realists offers an important clue to the way in which Llewellyn's version of Legal Realism was severed from its roots in Progressive Legal Thought.
Cardozo was one of the two greatest American common law judges of the twentieth century. Appointed to the New York Court of Appeals in 1914 and to the U.S. Supreme Court as Holmes's successor in 1932, he was, along with Roger Traynor of California a generation later, a leader in the progressive reorientation of private law doctrine. 151
Cardozo's The Nature of The Judicial Process (1921), originally delivered as the Storrs Lectures at Yale Law School, remained perhaps the most widely read American work on legal thought for over a half century. No o
ther book managed to capture the serene optimism of Progressive jurisprudence or to convey its reformist conviction that "the force which in our day and generation is becoming the greatest [influence] of them all, [is] the power of social justice. . . ."152
In his gentle confidence in the inevitability of reform, Cardozo thus seemed oblivious to the growing indications that post-war sentiment had turned sharply against "the power of social justice." As Frank and Llewellyn looked back a decade later, in the midst of the Great Depression, at Cardozo's contribution, it must have seemed to them to have been derived not from reason or analysis but from a generous but unrealistic faith in inevitable incremental progress.
Yet they failed to acknowledge how far Cardozo had gone in shifting the intellectual frame for talking about law-and how courageous he, a sitting judge, had been in publicly proclaiming that law "is not found, but made" 153 because "[e]verywhere there is growing emphasis on the analogy between the function of the judge and the function of the legislator."154 "[T]he whole subject-matter of jurisprudence," Cardozo declared, "is more plastic, more malleable, the moulds less definitively cast, the bounds of right and wrong less preordained and constant, than most of us . . . have been accustomed to believe.""'
Not only did Cardozo emphasize the pervasiveness of judicial discretion-"the demon of formalism tempts the intellect with the lure of scientific order"' `6--but he indicated that when judges "are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.""' He referred to Pound over and over again to argue that "in every department of the law . . . the social value of a rule has become a test of growing power and importance."158 This Cardozo called the "method of sociology," after Pound's own Sociological jurisprudence. "[T]he power of social justice . . . finds its outlet and expression in the method of sociology," Cardozo declared.'s9
The method of sociology was, above all, consequentialist. "[T]he final principle of selection for judges, as for legislators, is one of fitness to an end." 160 "[T]he end which the law serves" determines its value.'6'
Not the origin, but the goal, is the main thing. There can be no wisdom in the choice of a path unless we know where it will lead. The teleological conception of his function must be ever in the judge's mind. This means, of course, that the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. 161
More eloquently than any other writer, Cardozo in The Nature of the Judicial Process managed to state the working premises of Progressive jurisprudence. Little of what he wrote was truly original, though he was able to draw very interesting comparisons among what he called four different judicial "methods"-(1) the method of philosophy or logic and analogy; (_) the method of history or evolution; (3) the method of tradition or custom; (4) and the method of sociology. Into the complex interplay among these four methods, he was able to pack many of the typical tensions and dilemmas of jurisprudence.
The confident ease with which Cardozo approached value questions captures one important tension within both pre-World War I Progressive jurisprudence and post-war Realism. In boldly disputing the legal positivism of Holmes (whom he did not mention) and the analytical philosophers Austin, Holland, and Gray (whom he did), he asserted that it "really matters" that
the judge is under a duty . . . to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience. . . . The constant insistence that morality and justice are not law, has tended to breed distrust and contempt of law as something to which morality and justice are not merely alien, but hostile.. . . Not for us the barren logomachy that dwells upon the contrasts between law and justice, and forgets their deeper harmonies. 163
No wonder that Cardozo did not fit into Llewellyn's program of reducing law to scientific methodology. This contrast between Cardozo and Llewellyn does highlight the fact that there was a major shift toward value skepticism after the First World War. Legal Realists generally did not express the sort of self-assurance about values that Progressives were able regularly to muster. "Many who had been rebellious optimists" before the First World War became "despairing nihilists . . . ," Henry F. May observed. 164 Yet, it is also true that some Realists were themselves deeply critical of Llewellyn's positivism. Felix Cohen, for example, also insisted in 1931 "that all valuations of law are moral judgments, that the major part of legal philosophy is a branch of ethics, that the problem which the judge faces is, in the strictest sense, a moral problem, and that the law has no valid end or purpose other than the maintenance of the good life. . . ." 161
Perhaps it was Cardozo's own method of exposition that turned Frank and Llewellyn off. "For every tendency," he wrote in his introduction, "one seems to see a counter-tendency; for every rule its antinomy. "I66 Throughout The Nature, of the Judicial Process, one finds Cardozo stating a proposition and then its opposite, as if there were some obvious but unstated reconciliation waiting in the wings. "Adherence to precedent must . . . be the rule rather than the exception," he reiterates just after devoting his energies to demonstrating the malleability of legal rules.167 While much of his work emphasized the "creative" element in judgingthat judging is an "art"-he was prepared simultaneously to insist on the "narrow range of choice" available to the judge.161 If with one hand he wrote of the judge as legislator, with the other he warned of the danger of discretion. At one moment, he emphasized that his "duty as judge" is "to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time." 169 At the very next moment, he insisted that "[h]ardly shall I do this well if my own sympathies and beliefs and passionate devotions are with a time that is past." 170
Cardozo's charm as a writer and his influence as a judge was in his unequaled ability to sugar-coat whatever was unconventional in the message he was delivering or the doctrine he was creating. Immediately after proclaiming that "law . . . is not found, but made," 171 lie reassures the reader that "[t]here is in truth nothing revolutionary or even novel in this view of the judicial function.""' Cardozo was not comfortable with the bold, broad strokes of a Holmes, whose daring aphoristic style precluded careful qualification. Nor did Cardozo share the genuine philosophical disposition of a Holmes, who usually began an inquiry by asserting some fundamental contradiction between principles. Instead, Cardozo portrayed judicial decision making as more like a "strange compound which is brewed daily in the caldron of the courts." 173 The task was to let the different "ingredients enter in varying proportions." 171 "Before we can determine the proportions of a blend," however, "we must know the ingredients to be blended."175 The outstanding judge, therefore, is like "a wise pharmacist" who "can compound a fitting remedy." He "must balance all his ingredients . . . adding a little here and taking out a little there" in order to "determine, as wisely as he can, which weight shall tip the scales." 176 The judge's "conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment . . ."177 The pharmacist provides the central image of Cardozo's ideal of the incremental and experimental reformer as a common law judge. Perhaps he might, almost unnoticed, be able to slip a few more ingredients of "humanness" into the remedy, but it was not his job to reconsider the fundamental structure.
Legal Realism is the culmination of the early-twentieth-century attack on the claims of late-nineteenth-century Classical Legal Thought to have produced an autonomous and self-executing system of legal discourse. The creation of a system of legal thought that could separate law and politics has been the leading aspiration of American legal orthodoxy since the Revolution. In a nation lacking either an established social order or an established church to produce the social cement of legitimate authority, from the beginning Americans turned the rule of law into a "civil religion."' And in this most democratic country in the world, Americans after the Revolution obsessed about the dange
rs of "tyranny of the majority" and about how a "government of laws, not of men" might spare them from its ravages. If in 1776 tyranny of the majority might well have meant sectarian religious tyranny, by 1830 it had come almost exclusively to represent fear of leveling, confiscation-fear of the redistribution of wealth or power from rich to poor. The desire to create an autonomous system of legal thought that would separate law and politics, and create a neutral and apolitical mode of legal discourse, has always been associated in American thought with preventing tyranny of the majority.2
The late-nineteenth-century system of Classical Legal Thought that Progressive jurisprudence after Lochner sought to dismantle was the culmination of a set of ideas that had gradually crystallized over the course of a century.' By the time Lochner was decided, these ideas had produced conceptions of law and legal reasoning that were designed to create a sharp separation between law and politics, and between legal reasoning on the one hand and moral and political reasoning on the other.
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