Jurisprudence: Realism in Theory and Practice

549 Pages·2008·10.16 MB·English

by  Karl N. Llewellyn

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N ew material this edition © 2008 by Transaction Publishers, New Brunswick,
New Jersey. Originally published in 1962 by the University of Chicago Press.
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Library of Congress Catalog Number: 2008000990
ISBN: 978-1-4128-1378-5(E-Book)
Printed in the United States of America

Library of Congress Cataloging-in-Publication Data
Llewellyn, Karl N. (Karl Nickerson), 1893-1962.
Jurisprudence : realism in theory and practice / Karl N. Llewellyn.
p. cm.
Previously published: Union, N.J. : Lawbook Exchange, 2000.
With a new introd. by James J. Chriss.
Includes bibliographical references and index.
ISBN 978-1-4128-0786-9
1. Law—United States. 2. Jurisprudence—United States. I. Title.
KF213.L55 2008
349.73—dc22 2008000990
CONTENTS
INTRODUCTION TO THE TRANSACTION EDITION vii
PREFACE xvii
REALISM
1 A Realistic Jurisprudence: The Next Step 3
2 Some Realism about Realism 42
3 Legal Tradition and Social Science Method 77
4 Frank's Law and the Modern Mind 101
5 Natural Law for Judges 111
6 Impressions of the Conference on Precedent 116
7 On Reading and Using the Newer Jurisprudence 128
8 On the Good, the True, the Beautiful, in Law 167
g On the Current Recapture of the Grand Tradition !05
INSTITUTION, RULES, AND CRAFT 231
10 On the Nature of an Institution 233
11 The Bar's Troubles, and Poultices-and Cures? 243
12 American Common Law Tradition, and American
Democracy 282
13 The Crafts of Law Re-valued 316
14 The Modern Approach to Counselling and Advocacy 323
15 Law and the Social Sciences-Especially Sociology 352
16 The Content of a Jurisprudence Course 372
17 The Study of Law as a Liberal Art 375
CONTENTS
CONTROLLING BEHAVIOR: HOW AND WHY? 397
18 Law Observance Versus Law Enforcement 399
19 Theft as a Behavior Problem 412
20 Who Are These Accused? 431
21 The Anthropology of Criminal Guilt 439
22 Group Prejudice and Social Education 451
23 Yes, It Takes Mass Production 468
24 The Law, Human Dignity, and Human Civilization 4 76
25 What Law Cannot Do for Inter-Racial Peace 480
MEN 489
26 Wesley Newcomb Hohfeld-Teacher 491
27 Roscoe Pound 495
28 Mr. Justice Holmes 507
29 Holmes 513
INDEX 521
INTRODUCTION TO THE TRANSACTION EDITION INTRODUCTION TO THE TRANSACTION EDITION
Karl N. Llewellyn’s Jurisprudence: Realism in Theory and Karl N. Llewellyn’s Jurisprudence: Realism in Theory and
Practice was originally published in 1962 by the University of Practice was originally published in 1962 by the University of
Chicago Press. The book is a compilation of many of his most Chicago Press. The book is a compilation of many of his most
important writings, and ironically enough it was published in important writings, and ironically enough it was published in
the year of his death. Not much of what Llewellyn wrote in the the year of his death. Not much of what Llewellyn wrote in the
1930s, 1940s, and 1950s will strike contemporary observers as 1930s, 1940s, and 1950s will strike contemporary observers as
especially innovate or provocative. But for his time Llewellyn did especially innovate or provocative. But for his time Llewellyn did
offer fresh approaches to the study of law and society, and it is a offer fresh approaches to the study of law and society, and it is a
testament to his foresight that the ideas he was advancing many testament to his foresight that the ideas he was advancing many
decades ago have now become commonplace among contempo- decades ago have now become commonplace among contempo-
rary jurisprudence scholars as well as social scientists studying rary jurisprudence scholars as well as social scientists studying
law and legal issues. law and legal issues.
In this introduction I fi rst offer a brief biography of Llewellyn, In this introduction I fi rst offer a brief biography of Llewellyn,
which will place his work within the broader historical and cul- which will place his work within the broader historical and cul-
tural context of American jurisprudence since 1870. Rightly or tural context of American jurisprudence since 1870. Rightly or
wrongly, Llewellyn’s work will always be compared with that of wrongly, Llewellyn’s work will always be compared with that of
Roscoe Pound whose own program of sociological jurisprudence Roscoe Pound whose own program of sociological jurisprudence
preceded Llewellyn’s by some twenty years (see Treviño, 1996). preceded Llewellyn’s by some twenty years (see Treviño, 1996).
Although Pound and Llewellyn both advocated legal realism, Although Pound and Llewellyn both advocated legal realism,
their versions were incompatible to such an extent that heated their versions were incompatible to such an extent that heated
exchanges between the two—both public and private—marked exchanges between the two—both public and private—marked
their professional careers (see Herget, 1990; Hull, 1997). their professional careers (see Herget, 1990; Hull, 1997).
Legal realism is a jurisprudential philosophy that attempted Legal realism is a jurisprudential philosophy that attempted
to contextualize the practice of law. Its proponents argued that to contextualize the practice of law. Its proponents argued that
a host of extra-legal factors—social, cultural, historical, and a host of extra-legal factors—social, cultural, historical, and
psychological, to name a few—are at least as important in deter- psychological, to name a few—are at least as important in deter-
mining legal outcomes as are the rules and principles by which mining legal outcomes as are the rules and principles by which
the legal system operates. Oliver Wendell Holmes, Jr., whose the legal system operates. Oliver Wendell Holmes, Jr., whose
book The Common Law was published in 1881, is regarded as book The Common Law was published in 1881, is regarded as
the founder of legal realism. Holmes stated that in order truly to the founder of legal realism. Holmes stated that in order truly to
understand the workings of law, one must go beyond the techni- understand the workings of law, one must go beyond the techni-
cal (or logical) elements entailing its rules and procedures. The cal (or logical) elements entailing its rules and procedures. The
life of the law is not only that which is embodied in statutes and life of the law is not only that which is embodied in statutes and
court decisions guided by procedural law. Law is just as much court decisions guided by procedural law. Law is just as much
vii vii
INTRODUCTION TO THE TRANSACTION EDITION INTRODUCTION TO THE TRANSACTION EDITION
Karl N. Llewellyn’s Jurisprudence: Realism in Theory and Karl N. Llewellyn’s Jurisprudence: Realism in Theory and
Practice was originally published in 1962 by the University of Practice was originally published in 1962 by the University of
Chicago Press. The book is a compilation of many of his most Chicago Press. The book is a compilation of many of his most
important writings, and ironically enough it was published in important writings, and ironically enough it was published in
the year of his death. Not much of what Llewellyn wrote in the the year of his death. Not much of what Llewellyn wrote in the
1930s, 1940s, and 1950s will strike contemporary observers as 1930s, 1940s, and 1950s will strike contemporary observers as
especially innovate or provocative. But for his time Llewellyn did especially innovate or provocative. But for his time Llewellyn did
offer fresh approaches to the study of law and society, and it is a offer fresh approaches to the study of law and society, and it is a
testament to his foresight that the ideas he was advancing many testament to his foresight that the ideas he was advancing many
decades ago have now become commonplace among contempo- decades ago have now become commonplace among contempo-
rary jurisprudence scholars as well as social scientists studying rary jurisprudence scholars as well as social scientists studying
law and legal issues. law and legal issues.
In this introduction I fi rst offer a brief biography of Llewellyn, In this introduction I fi rst offer a brief biography of Llewellyn,
which will place his work within the broader historical and cul- which will place his work within the broader historical and cul-
tural context of American jurisprudence since 1870. Rightly or tural context of American jurisprudence since 1870. Rightly or
wrongly, Llewellyn’s work will always be compared with that of wrongly, Llewellyn’s work will always be compared with that of
Roscoe Pound whose own program of sociological jurisprudence Roscoe Pound whose own program of sociological jurisprudence
preceded Llewellyn’s by some twenty years (see Treviño, 1996). preceded Llewellyn’s by some twenty years (see Treviño, 1996).
Although Pound and Llewellyn both advocated legal realism, Although Pound and Llewellyn both advocated legal realism,
their versions were incompatible to such an extent that heated their versions were incompatible to such an extent that heated
exchanges between the two—both public and private—marked exchanges between the two—both public and private—marked
their professional careers (see Herget, 1990; Hull, 1997). their professional careers (see Herget, 1990; Hull, 1997).
Legal realism is a jurisprudential philosophy that attempted Legal realism is a jurisprudential philosophy that attempted
to contextualize the practice of law. Its proponents argued that to contextualize the practice of law. Its proponents argued that
a host of extra-legal factors—social, cultural, historical, and a host of extra-legal factors—social, cultural, historical, and
psychological, to name a few—are at least as important in deter- psychological, to name a few—are at least as important in deter-
mining legal outcomes as are the rules and principles by which mining legal outcomes as are the rules and principles by which
the legal system operates. Oliver Wendell Holmes, Jr., whose the legal system operates. Oliver Wendell Holmes, Jr., whose
book The Common Law was published in 1881, is regarded as book The Common Law was published in 1881, is regarded as
the founder of legal realism. Holmes stated that in order truly to the founder of legal realism. Holmes stated that in order truly to
understand the workings of law, one must go beyond the techni- understand the workings of law, one must go beyond the techni-
cal (or logical) elements entailing its rules and procedures. The cal (or logical) elements entailing its rules and procedures. The
life of the law is not only that which is embodied in statutes and life of the law is not only that which is embodied in statutes and
court decisions guided by procedural law. Law is just as much court decisions guided by procedural law. Law is just as much
vii vii
viii INTRODUCTION TO THE TRANSACTION EDITION viii INTRODUCTION TO THE TRANSACTION EDITION
about experience: about real fl esh-and-blood human beings about experience: about real fl esh-and-blood human beings
doings things together and making decisions. For a long time doings things together and making decisions. For a long time
precedent (stare decisis) was deemed to refl ect merely the inner precedent (stare decisis) was deemed to refl ect merely the inner
workings or the logic of the legal system, whereby judges could workings or the logic of the legal system, whereby judges could
render competent verdicts just so long as diligent attention was render competent verdicts just so long as diligent attention was
paid to procedural rules as applied to cases before them. Holmes paid to procedural rules as applied to cases before them. Holmes
([1881] 2005, p. 1), however, proposed that infl uences impinging ([1881] 2005, p. 1), however, proposed that infl uences impinging
on law from outside the system need to be taken into account in on law from outside the system need to be taken into account in
a more meaningful and systematic way. Hence, a more meaningful and systematic way. Hence,
the felt necessities of the time, the prevalent moral and political the felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious, even theories, intuitions of public policy, avowed or unconscious, even
the prejudices which judges share with their fellow-men, have had a the prejudices which judges share with their fellow-men, have had a
good deal more to do than the syllogism in determining the rules by good deal more to do than the syllogism in determining the rules by
which men should be governed. which men should be governed.
Both Pound’s and Llewellyn’s versions of legal realism were Both Pound’s and Llewellyn’s versions of legal realism were
heavily infl uenced by the seminal position of Holmes. For ex- heavily infl uenced by the seminal position of Holmes. For ex-
ample, Pound’s (1911) famous distinction between “law in books” ample, Pound’s (1911) famous distinction between “law in books”
and “law in action” is an acknowledgement of the gap that exists and “law in action” is an acknowledgement of the gap that exists
between law as embodied in criminal, civil, and administrative between law as embodied in criminal, civil, and administrative
code books, and law as practiced by a wide range of personnel code books, and law as practiced by a wide range of personnel
including police, judges, attorneys, prison staff, as well as govern- including police, judges, attorneys, prison staff, as well as govern-
ment offi cials of the executive and legislative branches. Although ment offi cials of the executive and legislative branches. Although
Llewellyn admired Pound’s “sociological jurisprudence,” he also Llewellyn admired Pound’s “sociological jurisprudence,” he also
criticized him for not being empirical enough. For all of his pro- criticized him for not being empirical enough. For all of his pro-
nouncements regarding the contextualization of law, Pound did nouncements regarding the contextualization of law, Pound did
not show much interest in the actual behavior of judges and of not show much interest in the actual behavior of judges and of
others whose job it was to apply or interpret the law. Llewellyn, in others whose job it was to apply or interpret the law. Llewellyn, in
other words, was advocating for an even more positivistic, behav- other words, was advocating for an even more positivistic, behav-
ioristic form of legal realism. From his perspective, Pound never ioristic form of legal realism. From his perspective, Pound never
completely escaped from the conventional, formal jurisprudence completely escaped from the conventional, formal jurisprudence
that placed great emphasis on legal precepts and verbalizations. that placed great emphasis on legal precepts and verbalizations.
Instead, a fully formed legal realism insists on studying the be- Instead, a fully formed legal realism insists on studying the be-
havior of legal practitioners, including their practices, habits, havior of legal practitioners, including their practices, habits,
and techniques of action. and techniques of action.
A BRIEF BIOGRAPHY A BRIEF BIOGRAPHY
Karl Nickerson Llewellyn was born on May 22, 1893 in Seattle, Karl Nickerson Llewellyn was born on May 22, 1893 in Seattle,
Washington. His father, William, was a businessman whose Washington. His father, William, was a businessman whose
fortunes rose and fell in cycles. After the panic of 1893, for fortunes rose and fell in cycles. After the panic of 1893, for
example, William was forced to fi le bankruptcy (Twining 1973, example, William was forced to fi le bankruptcy (Twining 1973,
1997). Shortly thereafter the family moved to Brooklyn with the 1997). Shortly thereafter the family moved to Brooklyn with the
younger Llewellyn attending the public school system there. younger Llewellyn attending the public school system there.
viii INTRODUCTION TO THE TRANSACTION EDITION viii INTRODUCTION TO THE TRANSACTION EDITION
about experience: about real fl esh-and-blood human beings about experience: about real fl esh-and-blood human beings
doings things together and making decisions. For a long time doings things together and making decisions. For a long time
precedent (stare decisis) was deemed to refl ect merely the inner precedent (stare decisis) was deemed to refl ect merely the inner
workings or the logic of the legal system, whereby judges could workings or the logic of the legal system, whereby judges could
render competent verdicts just so long as diligent attention was render competent verdicts just so long as diligent attention was
paid to procedural rules as applied to cases before them. Holmes paid to procedural rules as applied to cases before them. Holmes
([1881] 2005, p. 1), however, proposed that infl uences impinging ([1881] 2005, p. 1), however, proposed that infl uences impinging
on law from outside the system need to be taken into account in on law from outside the system need to be taken into account in
a more meaningful and systematic way. Hence, a more meaningful and systematic way. Hence,
the felt necessities of the time, the prevalent moral and political the felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious, even theories, intuitions of public policy, avowed or unconscious, even
the prejudices which judges share with their fellow-men, have had a the prejudices which judges share with their fellow-men, have had a
good deal more to do than the syllogism in determining the rules by good deal more to do than the syllogism in determining the rules by
which men should be governed. which men should be governed.
Both Pound’s and Llewellyn’s versions of legal realism were Both Pound’s and Llewellyn’s versions of legal realism were
heavily infl uenced by the seminal position of Holmes. For ex- heavily infl uenced by the seminal position of Holmes. For ex-
ample, Pound’s (1911) famous distinction between “law in books” ample, Pound’s (1911) famous distinction between “law in books”
and “law in action” is an acknowledgement of the gap that exists and “law in action” is an acknowledgement of the gap that exists
between law as embodied in criminal, civil, and administrative between law as embodied in criminal, civil, and administrative
code books, and law as practiced by a wide range of personnel code books, and law as practiced by a wide range of personnel
including police, judges, attorneys, prison staff, as well as govern- including police, judges, attorneys, prison staff, as well as govern-
ment offi cials of the executive and legislative branches. Although ment offi cials of the executive and legislative branches. Although
Llewellyn admired Pound’s “sociological jurisprudence,” he also Llewellyn admired Pound’s “sociological jurisprudence,” he also
criticized him for not being empirical enough. For all of his pro- criticized him for not being empirical enough. For all of his pro-
nouncements regarding the contextualization of law, Pound did nouncements regarding the contextualization of law, Pound did
not show much interest in the actual behavior of judges and of not show much interest in the actual behavior of judges and of
others whose job it was to apply or interpret the law. Llewellyn, in others whose job it was to apply or interpret the law. Llewellyn, in
other words, was advocating for an even more positivistic, behav- other words, was advocating for an even more positivistic, behav-
ioristic form of legal realism. From his perspective, Pound never ioristic form of legal realism. From his perspective, Pound never
completely escaped from the conventional, formal jurisprudence completely escaped from the conventional, formal jurisprudence
that placed great emphasis on legal precepts and verbalizations. that placed great emphasis on legal precepts and verbalizations.
Instead, a fully formed legal realism insists on studying the be- Instead, a fully formed legal realism insists on studying the be-
havior of legal practitioners, including their practices, habits, havior of legal practitioners, including their practices, habits,
and techniques of action. and techniques of action.
A BRIEF BIOGRAPHY A BRIEF BIOGRAPHY
Karl Nickerson Llewellyn was born on May 22, 1893 in Seattle, Karl Nickerson Llewellyn was born on May 22, 1893 in Seattle,
Washington. His father, William, was a businessman whose Washington. His father, William, was a businessman whose
fortunes rose and fell in cycles. After the panic of 1893, for fortunes rose and fell in cycles. After the panic of 1893, for
example, William was forced to fi le bankruptcy (Twining 1973, example, William was forced to fi le bankruptcy (Twining 1973,
1997). Shortly thereafter the family moved to Brooklyn with the 1997). Shortly thereafter the family moved to Brooklyn with the
younger Llewellyn attending the public school system there. younger Llewellyn attending the public school system there.
INTRODUCTION TO THE TRANSACTION EDITION ix INTRODUCTION TO THE TRANSACTION EDITION ix
However, by age sixteen his studies were no longer a challenge However, by age sixteen his studies were no longer a challenge
to Llewellyn and his father arranged to have him spend some to Llewellyn and his father arranged to have him spend some
time in Germany. Llewellyn spent three productive years in time in Germany. Llewellyn spent three productive years in
Mecklenburg, boarding with relatives of a family friend and at- Mecklenburg, boarding with relatives of a family friend and at-
tending the Realgymnasium at Schwerin. He was already fl uent tending the Realgymnasium at Schwerin. He was already fl uent
in German, and later went on to publish a book and several law in German, and later went on to publish a book and several law
articles in the language. articles in the language.
Llewellyn graduated in 1911 and returned to the United States Llewellyn graduated in 1911 and returned to the United States
to attend Yale College later that same year. Although he excelled to attend Yale College later that same year. Although he excelled
academically his fi rst three years, he was not involved in sports academically his fi rst three years, he was not involved in sports
or social activities more generally. Seeking greater intellectual or social activities more generally. Seeking greater intellectual
challenges he spent the spring of 1914 studying law, Latin, and challenges he spent the spring of 1914 studying law, Latin, and
French at the Sorbonne in Paris. However, with World War I loom- French at the Sorbonne in Paris. However, with World War I loom-
ing over the horizon, Llewellyn made his way back to Germany ing over the horizon, Llewellyn made his way back to Germany
and somehow managed to enlist in the 78th Prussian Infantry. and somehow managed to enlist in the 78th Prussian Infantry.
He was wounded in a skirmish near Ypres (Belgium) in Novem- He was wounded in a skirmish near Ypres (Belgium) in Novem-
ber, 1914 and spent several months convalescing in a military ber, 1914 and spent several months convalescing in a military
hospital in Nürtingen, Germany. After his discharge in 1915 hospital in Nürtingen, Germany. After his discharge in 1915
he was awarded the Iron Cross (2nd Class) and subsequently he was awarded the Iron Cross (2nd Class) and subsequently
returned to Yale. returned to Yale.
Shortly after his arrival at Yale Llewellyn became interested in Shortly after his arrival at Yale Llewellyn became interested in
the writings of Yale sociologist William Graham Sumner, who had the writings of Yale sociologist William Graham Sumner, who had
died a few years before but whose ideas were still in circulation died a few years before but whose ideas were still in circulation
thanks to the efforts of his one-time close associate, A.G. Keller. thanks to the efforts of his one-time close associate, A.G. Keller.
Especially important to Llewellyn was Sumner’s landmark book Especially important to Llewellyn was Sumner’s landmark book
Folkways, published in 1906. Here Sumner cited a plethora of Folkways, published in 1906. Here Sumner cited a plethora of
anthropological studies documenting the various and varied cus- anthropological studies documenting the various and varied cus-
toms, practices, and laws prevalent in different societies at differ- toms, practices, and laws prevalent in different societies at differ-
ent times. Customs which are habitual (the folkways) and which ent times. Customs which are habitual (the folkways) and which
have been passed down across the generations may reach such a have been passed down across the generations may reach such a
level of agreement and taken-for-grantedness among the people level of agreement and taken-for-grantedness among the people
that they enter a new stage, namely that of the mores. Mores are that they enter a new stage, namely that of the mores. Mores are
more formalized norms—some of which become laws—that are more formalized norms—some of which become laws—that are
considered to be so vital to the well-being of a population that considered to be so vital to the well-being of a population that
they are accorded special status and backed with the coercive they are accorded special status and backed with the coercive
power of the state. Social institutions such as law evolve out of power of the state. Social institutions such as law evolve out of
the customary ways of a people (Twining, 1973, p. 93). the customary ways of a people (Twining, 1973, p. 93).
What Llewellyn took away from his reading of Sumner, then, What Llewellyn took away from his reading of Sumner, then,
is that law must be understood within its institutional contexts is that law must be understood within its institutional contexts
and settings. From his law school training at Yale and on through and settings. From his law school training at Yale and on through
to his later work of fashioning curricula at Columbia School of to his later work of fashioning curricula at Columbia School of
Law, Llewellyn always understood law as being shot through Law, Llewellyn always understood law as being shot through
with custom. To keep this seemingly simple idea foremost in with custom. To keep this seemingly simple idea foremost in
INTRODUCTION TO THE TRANSACTION EDITION ix INTRODUCTION TO THE TRANSACTION EDITION ix
However, by age sixteen his studies were no longer a challenge However, by age sixteen his studies were no longer a challenge
to Llewellyn and his father arranged to have him spend some to Llewellyn and his father arranged to have him spend some
time in Germany. Llewellyn spent three productive years in time in Germany. Llewellyn spent three productive years in
Mecklenburg, boarding with relatives of a family friend and at- Mecklenburg, boarding with relatives of a family friend and at-
tending the Realgymnasium at Schwerin. He was already fl uent tending the Realgymnasium at Schwerin. He was already fl uent
in German, and later went on to publish a book and several law in German, and later went on to publish a book and several law
articles in the language. articles in the language.
Llewellyn graduated in 1911 and returned to the United States Llewellyn graduated in 1911 and returned to the United States
to attend Yale College later that same year. Although he excelled to attend Yale College later that same year. Although he excelled
academically his fi rst three years, he was not involved in sports academically his fi rst three years, he was not involved in sports
or social activities more generally. Seeking greater intellectual or social activities more generally. Seeking greater intellectual
challenges he spent the spring of 1914 studying law, Latin, and challenges he spent the spring of 1914 studying law, Latin, and
French at the Sorbonne in Paris. However, with World War I loom- French at the Sorbonne in Paris. However, with World War I loom-
ing over the horizon, Llewellyn made his way back to Germany ing over the horizon, Llewellyn made his way back to Germany
and somehow managed to enlist in the 78th Prussian Infantry. and somehow managed to enlist in the 78th Prussian Infantry.
He was wounded in a skirmish near Ypres (Belgium) in Novem- He was wounded in a skirmish near Ypres (Belgium) in Novem-
ber, 1914 and spent several months convalescing in a military ber, 1914 and spent several months convalescing in a military
hospital in Nürtingen, Germany. After his discharge in 1915 hospital in Nürtingen, Germany. After his discharge in 1915
he was awarded the Iron Cross (2nd Class) and subsequently he was awarded the Iron Cross (2nd Class) and subsequently
returned to Yale. returned to Yale.
Shortly after his arrival at Yale Llewellyn became interested in Shortly after his arrival at Yale Llewellyn became interested in
the writings of Yale sociologist William Graham Sumner, who had the writings of Yale sociologist William Graham Sumner, who had
died a few years before but whose ideas were still in circulation died a few years before but whose ideas were still in circulation
thanks to the efforts of his one-time close associate, A.G. Keller. thanks to the efforts of his one-time close associate, A.G. Keller.
Especially important to Llewellyn was Sumner’s landmark book Especially important to Llewellyn was Sumner’s landmark book
Folkways, published in 1906. Here Sumner cited a plethora of Folkways, published in 1906. Here Sumner cited a plethora of
anthropological studies documenting the various and varied cus- anthropological studies documenting the various and varied cus-
toms, practices, and laws prevalent in different societies at differ- toms, practices, and laws prevalent in different societies at differ-
ent times. Customs which are habitual (the folkways) and which ent times. Customs which are habitual (the folkways) and which
have been passed down across the generations may reach such a have been passed down across the generations may reach such a
level of agreement and taken-for-grantedness among the people level of agreement and taken-for-grantedness among the people
that they enter a new stage, namely that of the mores. Mores are that they enter a new stage, namely that of the mores. Mores are
more formalized norms—some of which become laws—that are more formalized norms—some of which become laws—that are
considered to be so vital to the well-being of a population that considered to be so vital to the well-being of a population that
they are accorded special status and backed with the coercive they are accorded special status and backed with the coercive
power of the state. Social institutions such as law evolve out of power of the state. Social institutions such as law evolve out of
the customary ways of a people (Twining, 1973, p. 93). the customary ways of a people (Twining, 1973, p. 93).
What Llewellyn took away from his reading of Sumner, then, What Llewellyn took away from his reading of Sumner, then,
is that law must be understood within its institutional contexts is that law must be understood within its institutional contexts
and settings. From his law school training at Yale and on through and settings. From his law school training at Yale and on through
to his later work of fashioning curricula at Columbia School of to his later work of fashioning curricula at Columbia School of
Law, Llewellyn always understood law as being shot through Law, Llewellyn always understood law as being shot through
with custom. To keep this seemingly simple idea foremost in with custom. To keep this seemingly simple idea foremost in