Jurisprudence for a Free Society: Studies in Law, Science, and Policy.

• Author: Falk, Richard A.

In what must be a virtually unsurpassed record of forbearance, Professors Myres McDougal and Harold Lasswell polished and perfected the huge manuscript that was to become Jurisprudence for a Free Society for several decades after it was ready for publication in virtually its present form. Such perfectionism exhibited and confirmed a deep commitment by the authors to the most precise possible formulation of their jurisprudential position. It also represented great confidence that their influence would be exerted in a literal and comprehensive fashion, that readers would be guided quite specifically in their thinking about law through a study of this text. Only time will tell whether this preoccupation with precision that delayed publication more than thirty years was warranted.

McDougal and Lasswell locate their endeavor in an evolutionary process of thinking about law, repudiating naturalism because of its supraempirical claims of validation, and positivism because of its formalistic reliance on logical derivations of legal decisions from abstract doctrines.(1) They perceive American legal realism as an antecedent to their work, admirable for its critical focus on the interplay between rules and social process in the enunciation of law in authoritative form, especially through the operations of appellate Courts.(2) Indeed, the McDougal and Lasswell undertaking can be regarded as converting the core insight of legal realism into a comprehensive framework of inquiry, including the provision of a normative rudder--the eight constituent values of a free society dedicated to the promotion of human dignity--by which to assess the relative merits of opposing lines of argument and analyses of factual circumstances.(3)

McDougal and Lasswell thus offer a jurisprudence that breaks radically from the positivism of John Austin and Hans Kelsen, viewing law not as the command of the sovereign(4) or--in the more contemporary formulation of H.L.A. Hart--as the product of some rational "rule of recognition,"(5) but rather as the end result of an authoritative decision-making process.(6) For scholars and policymakers, McDougal and Lasswell's configurative jurisprudence offers the promise of a rigorous approach to decision, as well as one embedded in social context. By following the steps set forth, McDougal and Lasswell argue that a scientifically grounded answer to any given policy problem may be reached that is likely to promote the common interest in achieving a world order founded on fundamental principles of human dignity.(7)

As part of this endeavor, McDougal and Lasswell emphasize the distinction between "the observational standpoints of the scholar and decision maker," with respect to "enlightenment, as well as ... decision."(8) The stress on this distinction is explained primarily by a presumed difference in orientation. The scholar is thought to be preoccupied with aggregating the knowledge relevant to reaching the most informed decision, while the decision maker is conditioned by the dimension of power. As McDougal and Lasswell put it, the decision maker--unlike the scholar--is constrained by "the making of effective choices in conformity with demanded public order."(9) Without such a distinction, it becomes impossible for the scholar to do that part of her job that involves "appraising the rationality" of legal events "in terms of community interest of either claims or decision."(10)

The other side of this search for a better jurisprudence is to ground it in policy science properly conceived: in essence, empirical knowledge analyzed by reference to purposive outcome. McDougal and Lasswell express their outlook as follows: "Science is sometimes said to be `value free'; and yet the most obvious fact about policy is that it is value oriented, since policy is only intelligible when it is seen as a deliberate search for the maximization of valued goals."(11)

Another take on the McDougal and Lasswell enterprise is that its aims are primarily pedagogical rather than policy-oriented. Their preoccupation with legal education is expressed by both their dedication "To Our Students," and their first published effort Legal Education and Public Policy: Professional Training in the Public Interest, reprinted as an Appendix to their jurisprudence.(12) There is no question that the approach they advocate is more contextual, interdisciplinary, processive, systematic, and visionary than the standard emphases on legal reasoning and fact/law analysis characteristic of the way law mainly was (and is) being taught in American law schools. In some sense, McDougal and Lasswell conceive of legal education less in terms of vocational training and more as a means of producing enlightened citizens capable of understanding the issues of the day as a struggle to realize the values of human dignity. Thus, they seek through their jurisprudence a dynamic of political engagement needed to achieve and sustain a free society.

Despite the huge delay in publication, this mammoth work remains "unfinished." Harold Lasswell, who died in 1978, had evidently planned to expand and document substantially the chapters for which he took primary responsibility.(13) These constitute the bulk of the second volume. And more surprisingly, despite a long prepublication process that included numerous reconsiderations of how to formulate this or that dimension of the overall orientation, the work as published has a dated quality arising partly from the authors' failure to refer in the text or footnotes to the major scholarly work or historical developments of the last twenty-five years. It poses a question for reader and reviewer. Why was this mystifying preoccupation with exactitude, which was responsible for the long deferral of publication, coupled with an unwillingness to look up from the manuscript to take account of what others were writing during these years and of what was going on in the world?

My own explanation would be that the core of this remarkable jurisprudential enterprise was conceptual, pedagogical, professional, and scientific, with reference being made to other scholarly work either for polemical purposes (to orient critical arguments)(14) or as a matter of academic decorum (to exhibit a reassuring and professionally proper awareness of other, related work).(15) The documentation, aside from cross-referencing other work proceeding from a kindred, and generally collaborative, viewpoint,(16) adds very little to the essentials of the approach. Updating would have added, at most, little more than an aura of contemporaneity. Similarly with the evolving global setting. Aside from the crucial, and historically (and ethically) appropriate, distinction between democratic and totalitarian public order systems,(17) the authors were not really concerned about depicting empirical levels of reality at a given historical juncture.

Theirs was a remarkable collaboration, noteworthy for its coherence of vision and pedagogical impact. But I shall argue that the jurisprudence is conceptually troubled, and unlikely to survive once the charismatic spell cast by its progenitors has passed.

1. COLLABORATIVE SCHOLARSHIP

   It is highly unusual to find distinguished scholars with independent reputations collaborating on works of conceptual magnitude.(18) It is unique to find a work of this sort prefaced by short essays by each author on his sense of his partner in collaboration, a self-consciousness that acknowledges just how special this jointness of endeavor really is. Lasswell begins his essay, entitled "Lasswell on Collaboration with McDougal," with a characteristically engaging remark: "Professor McDougal and I have been able to work together for over thirty years in what must establish a record of sorts for an interdisciplinary team whose members are not shackled together by the love, hate, and duty bonds of matrimony."(19) My own experience with collaborative scholarship has been somewhat opposite, creating some of the bonds, for better and worse, of a mini-marriage. But Lasswell is all business: "The essential point in our collaboration is common purpose and shared expectation about what is to be done.... The aim is to show how a comprehensive approach to the role of knowledge in society generates a jurisprudence that furthers self-appraisal and innovation in systems of public and civic order."(20)

   Lasswell also tells us about the interplay of the collaborators' interests and orientations, including his preference for working papers in contrast to McDougal's inclination to rely on exhaustive outlines and critiques of preliminary drafts as a way of producing by stages a manuscript. Lasswell also takes note of McDougal's "furious tenacity" and his deployment of an "intellectual bulldozer" to remove from the path of inquiry "traditional modes of thought."(21) And Lasswell celebrates difference, perhaps most tellingly in terms of intellectual style: "McDougal loves verbal combat, especially in the frame of a prescriptive system and an appellate court. So far as I am concerned, most combat is boring and time-wasting. My preference is for inquiry into factual causes and consequences."(22)

   Lasswell's inquiring mind was always pushing back the frontiers of knowledge in relation to the social sciences. He recognized early in his career the implications for knowledge of psychoanalysis and psychological self-scrutiny,(23) of modern communications and the manipulation of information as a dimension of power,(24) and of the relevance of polling and sampling techniques to politics in large, contemporary democracies.(25) Such social science perspectives, when filtered through McDougal's more focused preoccupation with law (conceived as the processes of authoritative decision making), give credence to McDougal and Lasswell's joint claim to provide a comprehensive framework for inquiry into the interface between law and policy.

   McDougal's assessment of Lasswell is more...