An introduction to legal thought: four approaches to law and to the allocation of body parts.

AuthorCalabresi, Guido

INTRODUCTION

Throughout this century in the United States, four approaches to law have vied for dominance among legal scholars. While there have been many more than four "schools" of law or "movements," many of these, I think, have represented a variant, a particular form or specific application, of one of these four underlying points of view. In other instances, the particular school or movement has merged elements of more than one of my approaches. (And, in such cases, the school was usually criticized for its vagueness and lack of coherence, but more on that later.) Each of these approaches is very much alive and influential today--and each is so in a relatively recent form or manifestation.

In this Article, I would like to describe briefly the four points of view, indicate how the current manifestations of each relate to earlier versions, and finally suggest how each would analyze an issue that is, and will become ever more, pressing in the law, namely, whether we own our bodies and their parts or whether, instead, they belong, at least in some instances, to those who need them.

  1. DOCTRINALISM OR AUTONOMISM

    The first approach which was dominant at the beginning of the century, and probably remains so in Europe today, may be termed formalism, doctrinalism, or autonomism. (1) While it has taken more than its share of lumps throughout this century in America, (2) it is currently enjoying something of a renaissance. This is especially so among a widely varied group of contemporary legal scholars who would, if pressed, probably describe themselves as members of quite different schools or movements, but all of whom, in fact, share this way of doing legal scholarship. (3)

    Its fundamental characteristic is that it views law as autonomous and distinct from other fields of learning. (4) Legal analysis, under this approach, at least in its pure form, can be carried out without reference to other disciplines or other sources of values. The principal job of such analysis is to render the rules of law consistent and coherent with each other, so that like cases are treated alike. (5) And, of course, what is "a like case," itself derives from values already inherent in the system (however they got there), rather than from some exogenous source. (6) In its traditional European form, it abjures studies, "de jure condendum," and attempts solely to rationalize and render coherent the rules that derive from the great Codes of Law (themselves, as it happens, mainly nineteenth century artifacts). (7) In the United States today, the system--the legal landscape--it seeks to make consistent or rational is more complex. For it is made up of a large mishmash of common law precedents as well as statutory and constitutional norms, both at the state and federal level. (8) This complexity of legal sources, while it makes the job of modern American doctrinalists harder and quite interesting, does not really make it different, in approach, from that of their earlier predecessors, or their European counterparts.

    Some have described this approach as inherently conservative. (9) And so in a sense it is, for it does not contemplate the introduction of new or modified values into the scheme as part of the role of legal scholarship. As a result, that scholarship, while nominally only engaged in the elucidation of preexisting values and not in their justification, nevertheless readily comes to be taken as a defender of the values it finds embedded in the system. Some forms of it are, however, much more conservative than others. If the approach negates the right of anyone--legislatures as well as courts--to change the codes (as it sometimes did in Europe), or to alter the fundamental legal relationships established by that odd mixture of common law, statutory, and constitutional rules that constitutes our legal landscape (as it occasionally seemed to do even in the United States), it becomes very, very conservative indeed. If, instead, it only asserts that the introduction of new values (or the criticism of the system on the basis of exogenous values) is not the role of scholars (or, perhaps, of courts), it merely removes one or more actors from the play of reform and renewal. It does not, in itself, deny that "others"--sometimes named and sometimes unnamed--do have that job to do. (10) As such, its conservatism is far more limited.

    In any event, conservatism, in this sense, does not mean "right wing" (in modern political parlance). That is, the values that the system may embody (which formalism does not question) may be "left" values, "right" values, what sometimes are called "traditional liberal" values, or any other set that somehow came to be rooted in the legal landscape, or codes. It is conservative as against reformist or radical in its view of the role of legal scholarship, but what it conserves is quite another matter. (11)

    This can be seen most dramatically by looking at Italy in the fascist era. Those scholars who were themselves politically antifascist were to a person "formalists" of the most extreme sort. The "ancient" codes were not to be tampered with, by anyone, and the fact that those codes were on the whole an embodiment of nineteenth-century thought (political as well as economic) may or may not have been a coincidence. (12) The "legal sociologists," as their opponents were somewhat scornfully termed at the time in Italy, were instead usually fascist sympathizers (or at least not opponents of the regime) to whom the introduction of new, frequently syndicalist, values into Italian law was far from anathema. (13) How these different scholars reacted after the end of fascism is an interesting story. (14) But for the purposes of this Article it is enough to note that in the 1920s and 1930s, those we probably would call "liberal" were doctrinalists, and hence conservative of a nineteenth-century mainly libertarian legal structure, while those we would call "right wingers" were the functionalist reformers.

    Today's autonomists usually make a bow to exogenous values, and this distinguishes them from some of their ancestors. (15) This bow can take various forms:

    * New or exogenous values, of course, must enter the system, but it is not the job of legal scholars (some will add "or courts") to further them. It is up to "the legislatures" or "the people" (or some equivalent construct). (16)

    * In some areas of the law, certainty is all important, hence it is inappropriate to do more than render the field more coherent and predictable. (17)

    * Exogenous values do and should enter and alter the system, and not only through legislative actions, but they do so in mysterious (almost mystical) ways. It is best to let that happen as it will, and for scholars to analyze the implications of what is there, rather than to seek to criticize it. (18)

    * Any attempt by scholars to further reform is elitist and inevitably buttresses, in its melioratism, the existing order. Our job is to make the current order lucid, consistent, and crystal-clear, and let the (inevitable) revolution (when it comes) create the new order. (19)

    All these are modern "prefatory" justifications for different kinds of current neodoctrinalist scholarship. Whether they, in fact, reflect controvertible (that is, value- or empirically based and hence challengeable) grounds for the approach, or whether they are only rationalizations (a kind of homage to dominant nonautonomist views of law) for an underlying belief system, for a deep view of what law is (like that of earlier doctrinalists), is hard to say. It is, in any case, largely irrelevant, since either can equally be defended.

  2. "LAW AND ..."

    The second approach arose largely in opposition to the first. (20) It sought a greater role for scholars, and frequently for courts as well, (21) in the criticism and reform of law. It often called its view of law as "functionalist," (22) although that said little about the functions it thought law ought to perform. Its underlying aim was, and is, to break out of a self-contained system of legal values which are either unchanging or change only mystically, revolutionarily, or at the hands of legislators unguided by legal scholars' critiques and suggestions. Legal scholarship was to be at the core of lawmaking and law reform! (23) But if it was, why should anyone pay any more attention to the views of such scholars than to those of any other citizen? (24) What special insight did legal scholars have into values that could make them in any way privileged to criticize laws, to recommend reforms, and to indicate the functions that the legal system should serve?

    The answer, for the twentieth-century functionalists, lay (as it had for Bentham long before) in other scholarly disciplines. (25) Legal scholars should look, as appropriate, to economics, philosophy, history, psychology, sociology, literature, or virtually any other field or combinations of fields of study for guidance in developing a scholarly critique of the current legal landscape or of particular parts of it. Law was not to be viewed as independent or autonomous, but rather as dependent on these other fields. (26) Its strength lay in the fact that it could gather together the wisdom (and values) of as many of these fields as were relevant to the issue at hand into one complex and, by tradition, rigorous system. (27) Because of this, the legal scholar did not need to feel bound by the self-imposed limits of the underlying disciplines, however useful they might be for the practitioners of that discipline. He or she must, instead, follow the insights of these disciplines beyond the points where the economist, sociologist, etc., would go, meld them with those of other disciplines, and come up with highly imperfect--but perhaps the best available--guidelines for reforming (or confirming) the legal system in its attempt to serve the current needs of the people. Only in this way could law avoid the tyrannies of mystical...

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