ebook img

Formalism and Pragmatism in American Law PDF

270 Pages·2014·1.172 MB·English
Save to my drive
Quick download
Download
Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.

Preview Formalism and Pragmatism in American Law

Formalism and Pragmatism in American Law The Social Sciences of Practice The History and Theory of Legal Practice Series Editor Philip C. C. Huang (University of California, Los Angeles and Renmin University of China) VOLUME 2 The titles published in this series are listed at brill.com/ssop Formalism and Pragmatism in American Law By Thomas C. Grey LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data Grey, Thomas C., author.  Formalism and pragmatism in American law / by Thomas C. Grey.   pages cm. — (The social sciences of practice : the history and theory of legal practice ; v. 2)  Includes bibliographical references.  ISBN 978-90-04-27288-0 (hardback : alk. paper) — ISBN 978-90-04-27289-7 (e-book) 1. Law—United States—Philosophy. 2. Legal positivism. 3. Realism. 4. Pragmatism. I. Title.  KF380.G74 2014  340’.1—dc23 2014006671 This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. issn 2214-952X isbn 978 90 04 27288 0 (hardback) isbn 978 90 04 27289 7 (e-book) Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. Contents Author’s Biography  vi Series Foreword  vii Introduction  1 1 Do We Have an Unwritten Constitution?  12  The Pure Interpretive Model  12  Beyond Interpretation  15  The Implications of the Pure Interpretive Model  20  Beyond Interpretation: A Program of Inquiry  25  Conclusion  29 2 The Disintegration of Property  30 3 Langdell’s Orthodoxy  46 4 Holmes and Legal Pragmatism  100  The Priority of Practice  107  Law as Experience  121  Law as Logic  133  Law as Prediction  145  Holmes Divided: The Spectator at the Storm Center  157  The End-Means Continuum and the Lawyer’s Work  174  Appendix: Holmes and the Pragmatists  189 5 Accidental Torts  198  What is a Tort?  199  A Proper Subject?  202  The Structure and Domain of Tort Law  228  Conclusion  254 Bibliography  258 Index of Terms  260 Author’s Biography Thomas C. Grey, Sweitzer Professor of Law, Emeritus, at Stanford Law School, is a lead- ing legal theorist and historian of the development of modern American legal thought. He has written extensively on the development of such strains of legal thought as prag- matism, formalism, and realism with particular attention to the jurisprudence of Oliver Wendell Holmes Jr. Earlier in his career, he wrote significant articles on consti- tutional law, history, and theory, with special emphasis on the “unwritten constitution” of unenumerated constitutional rights. He also taught torts to first-year students for more than 30 years before his retirement in 2007. Professor Grey is a fellow of the American Academy of Arts and Sciences and is the recipient of an honorary law doctorate from Chicago-Kent College of Law. Before join- ing the Stanford Law School faculty in 1971, he served as a clerk to Justice Thurgood Marshall of the U.S. Supreme Court and Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit. Series Foreword 黄宗智 Philip C. C. Huang The social sciences in China and the U.S. have come to be rather heavily dominated by abstract theorizing divorced from practical realities. What this series proposes to emphasize instead is actual economic and legal, and historical and social practices, and the theoretical logics evidenced therein. The theoretical works included in the series proceed not from theory to practice, but rather from practice to theory; the empirical studies included are ones of important theoretical implications. We propose to include selected major works in each of five sub-series, to be pub- lished simultaneously in both English and Chinese, or, where the work is already avail- able in one language (English or Chinese), then its translation into the other. The five sub-series include one each in the history and theory of legal practice, the economic history and economics of practice, and the social history and sociology of practice. The fourth series consists of broader cross-disciplinary works in historical political econ- omy, in the tradition of the likes of Adam Smith, Karl Marx, and Max Weber. The fifth series includes major innovations evident in Chinese economic, legal, social, and political-economic practices that have yet to receive full theoretical elaboration. The typical social science study today proceeds from a certain theoretical position, and asks a question derived from that particular perspective, with the intention of proving (or, sometimes, disproving) the posited “hypothesis.” This may be done explic- itly or implicitly, but always with a host of assumptions, often unspoken, even unconscious. Since almost all existing social science theories have originated from the West, such an epistemological approach often comes with the belief that the Western experience (e.g., capitalism and democracy and formalist law) and the theoretical abstractions therefrom are universally applicable. When applied to the developing non-Western world, the research can become mainly a matter of finding inadequacies in the subject country or region, often with implicit or explicit advocacy for development in the direction of the Western “model.” This is most evident, for example, in the disciplines of economics and jurisprudence, the most formalistic and ideological of the “modern” disciplines. Our “social sciences of practice,” however, calls for inverting that epistemological process, to proceed not from (Western-originated) theory (and hypotheses derived therefrom), but rather from the practical realities of the subject country. Non-Western countries, faced with the economic-military as well as cultural-intellectual expansion of the West in modern times, have been placed unavoidably into a historical situation of conflicting tugs between tradition and (Western) “modernity,” the indigenous and viii series foreword the imported, East and West. What exist in practice are almost of necessity paradoxical when seen from the perspective of Western theory. We start with practice because, unlike theory, practice is anchored in the subject country’s own social-economic and political contexts, perspectives, and discourses. And problems seen through practice rather than theory are far more likely to be of indigenous concern to the subject country itself rather than just theoretical / episte- mological concern to the West. Practice, in fact, tells first and foremost about paradoxes—or the co-existence of pairs of seemingly contradictory and mutually exclusive realities that are both true and real, like (globalized) commercialization without development, or capitalism without democracy, or Westernized formalist legal codes without their judicial prac- tice. It challenges the very validity of commonly used (Western) theories that presup- pose a cause and effect relationship between those, and therefore cries out for new theoretical formulations. In addition, unlike theory, which tends to be dominated by deductive / formal (and Western-originated) logic, and hence insists on logical consis- tency, practice readily accommodates the seemingly contradictory. It demands con- ceptualization and theorizing in terms of its own logic—such as, for example, China’s “feeling for the stones while crossing the river.” The perspective from practice is one that calls for taking historical process as the point of departure, and for theoretical formulations therefrom. Such practical and theoretical concerns do not mean, however, the simple rejection or disregard of Western social science theory, but rather deliberate dialoguing with existing theory, and also deliberate borrowing from and developing the West’s multiple alternative theoretical traditions. Such research can in fact highlight the need to combine “mainstream” formalist theoretical traditions with alternative Western theoretical tra- ditions to conceptualize Western experience itself—e.g., combining the jurispruden- tial traditions of “classical orthodoxy” with legal pragmatism (and Marxism and postmodernism) to understand the past and present of American law, or the Smithian with the Marxist and substantivist to understand the economic history of the West. Better yet, to uncover the operative theoretical logics of those combinations that exist in practice and to search for ways to go beyond the either/or juxtaposition of binaries that are seen to be mutually exclusive. Our series proposes to include such works in economics, law, sociology, and politi- cal economy, as well as works on such Chinese innovations that have already been made in practice but have yet to receive full theoretical formulation and attention. Our goal is to develop a series of works guided by problematics and theoretical conceptions that are better suited to Chinese concerns and realities than typical “mainstream” formalist studies. Introduction This book was launched when Prof. Philip Huang contacted me offering to arrange translation and Chinese publication of a selection of my articles. I did wonder whether my writings, mostly about American law, could have much to say to a Chinese audience. But given Prof. Huang’s intimate involvement with both legal systems throughout his distinguished scholarly career, I accepted his flattering judgment that they might, and I am very grateful to him for making the necessary arrangements. The result is this selection from my writings, for which I agreed to write this introduction. Prof. Huang’s 2007 article “Whither Chinese Law?”1 helped me understand why he thinks Chinese law students and legal academics might be interested in these writings of mine. That article provides a lively summary of the struggle between Westernizers and proponents of indigenous tradition in the course of Chinese jurisprudence over the last century, illustrated by a number of instructive case studies. It then answers the question posed by its title by urg- ing acceptance of the coexistence of the competing schools rather than the triumph of any one of them as the best way into the future for Chinese law. In support of this recommendation, Prof. Huang offers an analogy to what he sees as a comparable development in modern American legal thought and prac- tice. “If the essence of modernity in American law is indeed the coexistence of its classical orthodoxy with legal pragmatism, then the essence of China’s modernity lies perhaps in the coexistence of Western formalism with Chinese practical moralism.”2 Much of my own scholarly career has been devoted to writing about clas- sical orthodoxy and pragmatism in 19th and 20th century American legal thought. In two of the articles included here, “Langdell’s Orthodoxy” (1983) and “Holmes and Legal Pragmatism” (1989),3 I have tried to provide accounts of these jurisprudential tendencies that were accurate and as sympathetic as possible. Viewed as tendencies, they are readily seen in tension with each other, so that the history of modern American legal thought is a narrative of their ongoing struggle. 1 33 Modern China 1 (2007). 2 Id. at 29. 3 1983, 1989. See Bibliography of Principal Publications, at end, where articles are identified by bolded dates, followed by full citations. I use the bolded dates as citations in these footnotes, inviting readers seeking original sources to look to the Bibliography. © koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004�7�897_��� 2 introduction At the same time, I argue that legal pragmatism, understood as the theory of law articulated by Oliver Wendell Holmes Jr., in harmony with the general pragmatist philosophy of John Dewey, is a jurisprudence that supports what Prof. Huang describes as the “essence” of modern American law—that is, the “coexistence” of the classical tendency with the practical and flexible prag- matic tendency. To avoid terminological confusion, I prefer to keep the term “legal pragmatism” for this overarching jurisprudential account, which makes space for both of the competing tendencies. I label the tendencies them- selves formalist and legal realist. Classical orthodoxy is then a jurisprudence that attempts to subject the whole domain of law to the formalist tendency. (I believe Chinese law may have felt the influence of something like this juris- prudence at the time of the adoption of the German Civil Code, one of the great embodiments of classical European legal science.) In my view, such a universal formalism cannot be a successful general account of law, though the tendency which animates it, the drive to make law coherent and predictable, is a necessary aspect of any successful legal system. The heart of legal pragmatism as I understand it, following Holmes, is a view of law as an enterprise that is practical in two senses. First, it is “constituted of practices—contextual, situated, rooted in shared expectations;” second, it is “instrumental, a means for achieving socially desired ends, and available to be adapted to their service.”4 The first sense, emphasizing practice, suggests the historical school of jurisprudence; the second, emphasizing practicality, suggests the analytical-utilitarian school. These were regarded as rival juris- prudential approaches in the 19th century, but it was Holmes’s insight that they were partners rather than rivals, each stating important but partial truths about law. Thus Holmes promoted legal pragmatism as a “both-and” rather than an “either-or” theory—a synthesis of historical and analytical jurispru- dence, law as both guided by past practice and looking forward in a practical spirit to future consequences. The historical school urged that law is founded in customs and community social norms, which represent the collective wisdom of experience, and are unlikely to be improved by rationalist schemes of legal reconstruction. The analytical school saw law as the articulate command of a present legislative sovereign, with the power and the duty to shake off the dead hand of the past and consciously shape law to achieve the present and future greatest happi- ness of the greatest number. A characteristic aphorism of Holmes’s captured his synthesis of the two approaches, emphasizing the descriptive power of the historical school and the normative force of analytical utilitarianism: “historic 4 1989 at 805.

See more

The list of books you might like

Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.