Time for a Legal Counterrevolution

For most of the history of Western civilization, some form of higher law or natural law jurisprudence dominated legal thought.  Despite the rich variation within this tradition, nearly all of its proponents agreed that there really was a standard by which human law could be judged to determine its validity.  Obviously, for most, this standard was God and His word.

So dominant was this thinking that, for the most part, it dominated legal philosophy well into the nineteenth century.  Then, in a little over a century, it has all but disappeared within the legal academy.  Well, maybe “disappeared” is too strong a term.  But, comparatively, the influence of this type of thinking, and certainly its Christian underpinnings, has, within the academy, waned nearly to the point of disappearing.

Judge Posner, who would probably say “great and good riddance” to the preceding, described the progression from a natural or higher law position to Oliver Wendell Holmes very well in the opening chapter of his book The Problems of Jurisprudence.  He writes:

Despite Bentham’s promptings [toward codification of the law], neither the English Parliament nor American legislatures showed much taste for codification.  Throughout the nineteenth century and well into this one, therefore, most Anglo-American law was still common law.  Bentham’s onslaught, however, together with the steady diminution in religious belief among the educated classes, had left the intellectual foundations of the orthodox view [of law, i.e. the higher/natural law view] in disarray.  If the common law did not come from God, where did it come from?  It was one thing to speak of “natural law” when nature was conceived to be the expression of divine love or order, and quite another to find universal legal norms in Darwinian nature, red in tooth and claw.  The natural law project has never recovered from what Nietzche called the death of God (at the hands of Darwin).  If not from God or nature, where could the common law have come but from the judges themselves?  That would make them legislators—unelected ones, to boot.  Many of our states confronted this possibility head on, by making their judiciaries elective.  But this experiment merely undermined judicial independence and encouraged the perception (at times self-perception) of judges as nothing more than legislators in robes (if that: until late in the nineteenth century, most American judges did not wear robes).  Despite its persistence, the concept of an elective judiciary is generally and correctly regarded as a failure.

Into the breach stepped the American legal formalists, of whom the best known today is Dean Christopher Columbus Langdell of the Harvard Law School.  On one level the formalist were Platonists, believing that there existed a handful of permanent, unchanging, indispensable principles of law imperfectly embodied in the many thousands of published judicial opinions, and that the goal of legal reasoning was to penetrate the opinions to the principles.  That is the flavor of Langdell’s own scholarship.  On another—more interesting but not sharply distinct—level the formalists had reconceived law as an inductive science.  . . .  The reports of appellated decisions were the data from which the principles of the common law could be inferred—principles such as that a promise is not legally enforceable unless supported by consideration, or that liability in tort requires proof of blameworthy conduct.  Once these principles were brought to light the correct outcome of a case could be deduced.  Thus the principles could be used both to show that outliers in the sample of appellate cases from which the principles had been derived had been decided incorrectly and to guide the decision of new cases.  Although man-made, the principles could minimize judicial discretion, just as Blackstone’s divinely originated common law had been thought to.  And although these principles did not have divine backing they had something almost as good—the power of scientific induction and the verdict of time.

The orthodox view had been reinstated in secular, scientific dress.  But the challenge remained of explaining just how the creation of legal principles as by-products of judicial decision making could confer on them a political legitimacy equivalent to that of legislative rules.  The use of induction to derive principles from cases left a gap between “is” and “ought,” and the verdict of time could easily be questioned in a period when social conditions were changing rapidly.

As Bentham had taken on Blackstone, so it fell to Holmes to take on the heirs of Blackstone.[1]

Despite the fact that I feel a small shudder at his characterization of Christopher Columbus Langdell as an heir of Blackstone, I generally find Posner’s description of what took place helpful.  He briefly and accurately describes Langdell’s evolutionary approach to the law, and he correctly diagnoses the cause of the gap into which Langdell strode—the decline of religious belief among the educated classes.

He lumps Blackstone and Langdell together not because of their shared religious commitments—Blackstone was a Christian and Langdell an evolutionist and not particularly religious—but because of their shared belief that some form of higher or natural law did indeed exist.  Blackstone saw it as coming from God, while Langdell saw it buried in the cases (the data) waiting to be extracted and systematized.  In this sense (and probably in this sense only,) Langdell could be considered and heir of Blackstone.

But, Langdell’s jurisprudence was similar to Holmes’s in many respects as well.  Of this, Prof. Alschuler writes:

Holmes and his supposed nemesis Christopher Columbus Langdell agreed far more than they differed, and what Robert Gordon wrote of Langdell and his followers was equally true of Holmes:

[They] agreed that [legal] science should be a positive science based on observable facts.  . . .  [T]his commitment expressed an attitude—a “masculine” readiness to look brute reality unblinkingly in the face, to throw off the crutches of religion, moral sentiment, and the stale formulae of conventional professional wisdom, and to embark upon the strenuous, tough-minded, intellectual path.[2]

So, we see then that, in the sense of being willing to throw off the clutches of religion and moral sentiment, Holmes had much more in common with Langdell than either of them did with Blackstone.  In that sense, it would be more accurate to view Holmes and Langdell in a camp together against Blackstone and the orthodox view of law, as Posner calls it.  (In fact, that is the argument that Prof. Alschuler makes.)

And, here we are, the “beneficiaries” of Holmes’s (and Langdell’s) legal revolution.  Hmm.  Judging from the state of the American legal system and the crisis facing the Western Legal Tradition as a whole, maybe it is time for the true heirs of Blackstone to take on the heirs of Holmes and Langdell.  Yes, it seems that it is high time for a counterrevolution.  May God by His grace raise up men to wage it and grant its success.

[1]Richard A. Posner, The Problems of Jurisprudence 14-15 (1990) (footnotes omitted).

[2]Albert W. Alschuler, From Blackstone to Holmes: The Revolt Against Natural Law, 36 Pepp. L. Rev. 491 (2009) (footnotes omitted).