Theory about law: jurisprudence for a free society.

• Author: Reisman, W. Michael
• Position: Testimonial to late Yale Law School Professor Myres McDougal

Theory about law was the center of Myres McDougal's intellectual enterprise. Each of his treatises and monographs, even his occasional papers and court pleadings, every dissertation, and, as many of you here know, every student paper done under his supervision, was and had to be an explicit and intentional application of his theory. Whether it was resource use and planning in the Connecticut Valley, in the oceans, or in outer space, whether it was the law of war or human rights, treaty interpretation or constitutional interpretation, each study tried to be an integrated application of the theory.

From the beginning, theory about law was McDougal's primary interest. Fresh from Oxford, a newly minted Analytical Positivist, he arrived at Yale and told a bemused Dean Clark that he intended to teach jurisprudence. And he did. Whether his course was negotiable instruments, debtors' rights, property, or any of the areas of international law he addressed, he was always teaching one year-long seminar on jurisprudence, closely analyzing the theories of others while elaborating his own.

With the exception of the theory of the constitutive process, the jurisprudence was essentially completed in manuscript by the late 1950s. Many of you here today studied jurisprudence with McDougal from different versions of that manuscript, then called Law, Science and Policy. For reasons biographers will explore, the manuscript was only published in 1992 in two volumes under the title of Jurisprudence for a Free Society: Studies in Law, Science and Policy.(1) It was co-authored by Harold Lasswell. A paperback student edition appeared in 1997. The dedication page of the volumes has three words: "To our students." To all of us here today.

Many modern theories of law trace their origins to a single insight. H.L.A. Hart saw that Austin's notion that law was the command of a political superior could not account for the authoritative component of law and addressed that missing item in the rest of his work.(2) Hans Kelsen saw that historicist conceptions of law could not serve the needs of decision-makers in the modernizing multiethnic empire that was the Dual Monarchy and invented a "pure theory of law" to rise above them.(3) McDougal's insight came from the deficiencies of Legal Realism, the persuasion to which he was converted at Yale, and which he then had the opportunity to test and revise in the powerfully formative experience of serving in the government during the war.

One of Realism's patron saints, Holmes, had said, "The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the law."(4) Legal Realists demonstrated that predictions about the future decisions of courts could never be made on the basis of text--black-letter law--alone and many of them...