Formal Causes and the Five Eras of American Law

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 405

The four styles of interpretation detailed in Chapters 9-12 determine in individual cases which results will be "hammered out" at any particular time. The next four Chapters in this book discuss the causes which help explain why a majority of Justices on the Supreme Court at different times in our Nation's history have adopted one of the four judicial decisionmaking styles. In discussing these efficient causes of why the dominant interpretation style in different eras has changed, Chapter 13 focuses on the formal fact of changes in American legal history from an initial natural law era, through formalist, Holmesian, and instrumentalist eras, to a modern natural law era today. Chapter 14 focuses on the material cause of these changes, that is, the changing background of social and political events in society which forms the material base from which constitutional law emerged in its various eras. Chapter 15 focuses on aspects of cognitive and moral developmental psychology which are part of the efficient cause related to explaining changes in the majority approach from one judicial era to the next. Finally, Chapter 16 relates the cognitive and moral developmental stages and the judicial eras to issues of contemporary societal development, the final cause or end of legal change being to reflect and advance such societal developments.

ß 13 1 Classic Account of American Legal History: Five Eras of American Law

- Original Natural Law, Formalist, Holmesian, Instrumentalist, and Modern Natural Law Eras

In the more than 200 years since ratification, the Constitution's interpretation and application have been determined by Supreme Court Justices whose members have reflected different combinations of the four interpretation styles discussed in Chapters 9-12. In general, there are five eras of Supreme Court decisionmaking: (1) the original natural law era of 1789-1873, which corresponds roughly to the Marshall and Taney Courts, with Justice Story as a bridge between the two; (2) the formalist era of 1873-1937, which corresponds to the Court's treatment of the 1873 Slaughter-House Cases as precedent during the last third of the 19th century and the Lochner v. New York/Hammer v. Dagenhart era of the first third of the 20th century; (3) the Holmesian, New Deal Court era of 1937-54, which involved the rejection of Lochner and Dagenhart against the backdrop of President Roosevelt's "Court-Packing Plan" in 1937; (4) the modern instrumentalist era of 1954-86, which was inaugurated by Brown v. Board of Education and lasted through the Warren and Burger Courts; and (5) the emerging modern natural law era of the Court since 1986.

These eras of Supreme Court decisionmaking are matched by similar eras in the development of American law generally. For example, in 1977, Professor Grant Gilmore published his classic statement of the development of American law, The Ages of American Law. In this book, Professor Gilmore, building on earlier writings by Professor Karl Llewellyn, divided American legal history into three distinct ages: a pre-Civil War Golden Age, a post-Civil war to World War I formalist or conceptualist age, and a modern period which harkens back to the Golden Age of the pre-Civil War period.1 As discussed at ß 3.3, a number of commentators have called this modern period and its Page 406 approach to law instrumentalism.2 Gilmore's understanding of the ages of American law was based on this simple dichotomy of two basic decisionmaking styles: formalism and instrumentalism. This approach reflected prevailing jurisprudential writing at the time that emphasized similarities and differences between formalism and instrumentalism as judicial decisionmaking styles.3

As summarized in Chapter 3, and detailed in Chapters 9-12, a more complete typology of judicial decisionmaking styles involves adding the Holmesian and natural law decisionmaking styles to Gilmore's discussion of formalism and instrumentalism. This addition helps to clarify the ages of American law. The formalist style associated with Langdell and Englishmen John Austin, discussed at ß 3.1, is unquestionably the post-Civil War style, and instrumentalism, discussed at ß 3.3, was the dominant style for much of the last half of the 20th century. As Professor Kermit Hall noted in The Magic Mirror: Law in American History,4 an overview of American legal history, "From the Civil War to about 1900 the trend favored the formalistic and conservative judicial approach. . . .

The Great Depression was a catalyst for liberal legalism [which] fused the social reformist impulse of Progressivism, the relativism and instrumentalism of legal realism and sociological jurisprudence, and the regulatory responsibility of the state associated with the New Deal."

However, in the formative era of American law, the pre-Civil War period, the dominant mode of legal analysis is better characterized not as Gilmore's or Llewellyn's earlier instrumentalist Golden Age, but rather as reflecting natural law presuppositions. In this period, judges adopted a normative perspective, a view shared by instrumentalist and natural law judges, as discussed at ßß 3.3-3.4. Thus, judges were sensitive to the consequences that adopting a particular rule would have. As noted by Harvard University Law School Professor and Historian Morton Horwitz in The Transformation of American Law, 1780-1860,5 "During the last fifteen years of the eighteenth century, one can identify a gradual shift in the underlying assumptions about common law rules. For the first time, lawyers and judges can be found with some regularity to reason about the social consequences of particular legal rules." In addition, during this period judges recognized that they did, and needed, to make law, particularly common law, which reflected a particular social value system. As Horwitz stated, "What dramatically distinguished nineteenth century law from its eighteenth century counterpart was the extent to which common law judges came to play a central role in directing the course of social change. Especially during the period before the Civil War, the common law performed at least as great a role as legislation in underwriting and channeling Page 407 economic development. . . . As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies."6

However, unlike the functional perspective of instrumentalism, discussed at ß 3.3, during this formative era of American law both lawyers in their argumentation, and judges in their opinions, grounded the underlying legitimacy of their enterprise in a notion of natural law. Law, for them, could be organized and systematized around rational principles, the natural law analytic premise, as discussed at ß 3.4, not the instrumentalist functional premise. As Dean Roscoe Pound noted in 1938 in The Formative Era of American Law,7 "A mode of thought [natural law] which produced and developed the classical international law, which modernized the civil law so that it could go round the world, which had much influence on the development of equity and the law merchant - the liberalizing agencies in the Anglo-American common law - which was the theoretical basis of much of the best work of Lord Mansfield, of the Declaration of Independence and bill of rights, and of the legislation, judicial decision, and doctrinal writings of the formative era of American law, is not to be rated as nothing in legal history." Indeed, Professor Gilmore himself noted in The Ages of American Law,8 "The post-Revolutionary generation of American lawyers approached the problem of providing a new law for a new land as convinced eighteenth-century rationalists."

The characterization of the Pre-Civil War era as one of natural law is not inconsistent with Professor Gilmore's or Llewellyn's account of judicial decisionmaking. Professors Gilmore, Llewellyn, Horwitz, and others are right that judges during this period shared the instrumentalist premise that judges could, and needed, to make law to advance particular ends, and that this fact distinguished the pre-Civil War judicial decisionmaking style from the post-Civil War style of formalism. To the extent Gilmore, Llewellyn, and Horwitz were focused on a single dichotomy, formalism versus instrumentalism, the pre-Civil War style certainly did not adopt the formalist style. However, once attention is drawn to the two different kinds of normative judicial styles, natural law versus instrumentalism, the natural law character of the pre-Civil War judicial decisionmaking style emerges. The ends that judges advanced during this period were defined not in purely functional terms, but rather in terms of advancing rationally and systematically the dominant natural law vision in America at the time - an Enlightenment vision of the social contract, Adam Smith's theory of competition and economic growth, and John Locke's theory of property rights.

Even writers, like Horwitz, who have used the term instrumentalism to distinguish the pre-Civil War period from the post-Civil War formalist period, have agreed that judges routinely resorted to economic natural law arguments to alter the common law during the pre-Civil War period. As Horwitz stated, "This increasing preoccupation with using law as an instrument of policy is everywhere apparent in the early years of the nineteenth century. Two decades earlier it would have been impossible to find an American judge ready to analyze a private law question by agreeing 'with...

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