American Legal Realism and Empirical Social Science.

• Author: Ansaldi, Michael

[D]emocracy must be founded . . . on a faith that in the long run ideas are more important than the men who form them.

-- Lon L. Fuller(1)

I like persons better than principles, and I like persons with no principles better than anything else in the world.

-- Oscar Wilde(2)

The Franco-Rumanian existentialist E.M. Cioran once opined that the two most interesting things in this world are gossip and metaphysics.(3) For those so minded -- and I confess I am among them -- the combined prospect of gossip about metaphysicians, the details of Hannah Arendt's affair with Martin Heidegger,(4) for example, or of Bertrand Russell's physical gifts,(5) provides a special frisson, a ne plus ultra of satiated prurience. The desire to be in this particular know, for me at any rate, is quite literally irresistible.

It is tempting, of course, to ascribe this to the general depravity of the age of People magazine: why should Luftmenschen miss out on the simple pleasures of the homme moyen sensuel? Enquiring (master-) minds want to know too. Hence, the philosopher as celebrity. For "Wallis and Edward" or "Burt and Loni," just substitute "Jean-Paul and Simone" or "[famous logical positivist] and [rough-trade boyfriend]." And, as we know full well in this democratic age, we often need our celebrities taken down a peg or two to offset their fame. They're just people, you know, "no different from anybody else," or so one imagines the leveler's gibe. Indeed, one well-known philosophy don at Oxford who turned her hand to literature was accused, for her troubles, of writing not so much novels as Harlequin romances for intellectuals.(6)

In reality, this curiosity about the lives of philosophers is not an entirely recent phenomenon. It dates back at least as far as Xenophon's and Diogenes Laertius' tale-telling biographies of Socrates, not to mention the autobiographies of Augustine of Hippo and Jean-Jacques Rousseau, or Montaigne's Meditations. Nonetheless, what was known popularly about philosophers -- as opposed to their philosophies -- tended to be limited to vignettes from their lives served up as inspirational exempla: Aquinas resisting the prostitutes his brother sent to tempt him;(7) Kant's nightly stroll through Konigsberg, so punctual that housewives set their watches by it; the assiduous Marx facing that daily pile of books in the British Museum. The aforementioned Diogenes Laertius, who wrote Lives of Eminent Philosophers(8) sometime in the third century A.D., had no significant epigonoi. Apart from him, thus, we lack real philosophical analogues to Suetonius' Lives of the Twelve Caesars or Vasari's Lives of Renaissance Artists, at least until relatively modern times. Indeed, it is probably fair to say that the instinctive reaction of a "premodern" educated sensibility to the inside scoop on Marx's mistreatment of his children, for example, probably would have been something along the lines of: "What's that got to do with his ideas? Does it invalidate them? Does it shed any light on them? If not, why should I care?" The unstated premise was that ideas -- particularly philosophical ideas -- should stand or fall on their own.

Literature offers an instructive comparison here. The lives of poets and novelists long have been a subject of enormous interest. Such interest often rests on the not entirely implausible, but ultimately reductionist, notion, held by much of the public, that their works are, in some direct way, really "about" their lives, and hence that a more detailed knowledge of the latter necessarily will enhance or clarify their appreciation of the former. A strong reaction against this sentiment emerged in the post-World War I era in the form of the so-called New Criticism. The New Critics taught that the meaning of a work of art should be sought without reference to biographical or historical data about how it arose. Many artists -- such as the poet. W.H. Auden and the novelists Evelyn Waugh and Gore Vidal -- reinforced this message by pleading with readers to confine their attentions to words and leave artists' lives alone, taking the position that knowledge of their lives was essentially irrelevant to their works. These protestations, however, reflected an understandable desire for privacy as much as their artistic principle, and Waugh and Vidal may have undercut their position by eventually publishing books of memoirs.(9)

The latest nouvelle vague to hit the shores of American legal academe or, at any rate, the latest vague I've caught -- deconstructionism -- by rights ought to leave us uninterested in the low-level folk who merely sling signs and thereby create texts. As we now know, it is not they who give them meaning, but rather I, the reader, happily at work in my interpretive community, humble lecteur revealed at last as true auteur.

As may befit a discussion of American jurisprudence, let me start out with a rather Langdellian move, and present some classifications -- ideal-types, if you will -- of jurisprudential writing.(10) These classifications are all fairly standard, nothing exotic. Furthermore, my listing hardly will be exhaustive; I wouldn't dream of it. I only aim to identify some significant and recurring types.

1. The Primary Source: A work in which an author presents his own ideas on one or more abstract questions about law -- such as whether it exists, what it is, where it comes from, and its relationship to justice or morality. Such works might include John Rawls's A Theory of Justice(11) or John Austin's The Province of Jurisprudence Determined.(12) They also might include works of shorter compass, such as Lon Fuller's law review article Positivism and Fidelity to Law: A Reply to Professor Hart,(13) to take a famous example. In any event, the jurisprudential ideas of a thinker, directly presented by him, are the hallmark of this type of writing. "Primary jurisprudence" might be another name for it.

2. The Topical Collection of primary sources by various authors: Thomas Grey's The Legal Enforcement of Morality,(14) for example, or Feinberg & Gross's Justice: Selected Readings(15) would fall under this heading. Topical collections may present a wide range of opinion or a narrow one, in which case they approximate my Type 1. The ideas illustrated, however, and their worth in explaining legal phenomena, again lie at the heart of such works.

3. The Critique: This is an intellectual response to ideas presented in primary sources like the foregoing. Owen Fiss's The Death of the Law?(16) and Mari Matsuda's Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice belong here.(17) A critique, naturally, also may serve as a vehicle for the presentation, or sharpening, of the critic's own ideas.

4. The Restatement: This category includes works, or portions of works, in which the author attempts to restate, perhaps more plainly or vividly, the jurisprudential ideas of another. Robert Gordon's Unfreezing Legal Reality: Critical Approaches to Law(18) might sit at the high end of this category. In this work, Gordon's initial approach to a jurisprudential question is one that, he frankly admits, derives from others' work rather than his own,(19) all en route to his own elegant synthesis. Study aids written for students in a jurisprudence course, on the other hand, might fall at the low end of the category.

5. The Thematic Study: This category embraces works such as Robert Summers's Instrumentalism and American Legal Theory,(20) the topically organized, chronologically overlapping chapters of James Herget's American Jurisprudence, 1870-1970,(21) and Karl Llewellyn's Some Realism about Realism: A Reply to Dean Pound.(22) The thematic study attempts to canvass and elucidate manifestations of a jurisprudential idea, or related ideas, in the works of several authors, or perhaps even of one very prolific author. Writing a history of jurisprudence can be approached, indeed, as a large-scale thematic study, or as a collection of thematic studies loosely organized around temporal sequence. This is a classic kind of "history of ideas." The thematic study will, almost by necessity, share features of Types 3 and 4, and could present Type 1 material as well.

   The primary source, topical collection, critique, restatement, and thematic study are all unalloyed works of jurisprudence. Jurisprudential ideas as such are their direct and immediate concern. All belong to the heartland of jurisprudence. Naturally, however, there are other sorts of jurisprudential writing besides these -- more specifically, works in which some other factor besides the ideas themselves intervenes and looms large as one organizing principle:

6. The Author Study: William Twining's Karl Llewellyn and the Realist Movement(23) and Robert Glennon's The Iconoclast as Reformer: Jerome Frank's Impact on American Law(24) clearly belong here. This type of writing contains elements of restatement and critique, and possibly thematic study as well. Because a single individual serves as its focus, the author study blends ideas with biography. It will range from mundane details -- where was he born? -- to intellectual chronicle -- when and how did he come up with this idea? One reason we study a thinker's life is on the premise that his experiences and activities may shed light on his thinking. On the other hand, picaresque or baroque details of the subject's life may make a good story in their own right: the young Llewellyn winning the Iron Cross in World War I; Frank's peculiar eyeglass frames making him a suspect in the Leopold and Loeb murder case. Intellectual biography, it goes without saying, is a well-recognized type of intellectual history.

7. The Group Study: This type of work simultaneously pursues a thematic and biographical approach to the works and lives of a number of thinkers. These will have been cohesive enough to form a recognized school or to constitute an interconnected group, either...