Gordley - The State's Private Law PDF

The State's Private Law and Legal Academia
Author(s): James Gordley

Source: The American Journal of Comparative Law, Vol. 56, No. 3, Special Symposium Issue:
"Beyond the State: Rethinking Private Law" (Summer, 2008), pp. 639-653
Published by: American Society of Comparative Law
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JAMES GORDLEY*
The State's Private Law and Legal Academia
The work of Western jurists has traditionally depended on a
symbiotic relationship between the law as promulgated by state au
thority and law as understood by jurists. Starting with the law laid
down by state authority, the jurists have arrived at more general
rules, doctrines and principles which were reflected, later on, in the
law that state authorities laid down. During the late natural law era,
that relationship was undermined when rationalists took as their
starting point, not the law in force, but supposedly self-evident princi
ples from which they thought the law could be deduced. With the rise
of positivism in the nineteenth century, jurists took the law in force as
their starting point, but they tried to interpret it with the deductive
and conceptualistic methods of the rationalists. They thus became vul
nerable to critics who pointed out why these methods would not work,
but who, nevertheless, did not distinguish an attack on these methods
from an attack on the work jurists traditionally have done.
I. THE TRADITION
Intellectual traditions have a beginning in time. Western philos
ophy began with the Greeks, modern physics with Galileo and
Newton, and modern economics with Adam Smith. Similarly, one can
date the Western legal tradition to the Romans, and in
particular, to
the work of the Roman jurists. The tradition they founded has en
dured for centuries. Today, I believe, it is threatened.
At the core of the tradition is a symbiotic relationship between
the law as promulgated by state authority and the law as understood
by jurists. Traditionally, the starting point for jurists has been the
law laid down by state authority. Their goal has been to understand
and explain that law. In doing so, jurists have sought more general
rules, doctrines, and principles which the state authorities who
promulgated the law did not have explicitly in mind. The authorities
have then drawn upon their work to administer justice.
I hope the word "state" is not misleading. Public authority has
taken many forms, and "states" in the modern sense are a new phe
nomenon. By state, I will mean any public authority that administers
639
*
W.R.
Irby Distinguished University Professor,
Tulane Law School.
640 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
justice on the basis of texts it recognizes or promulgates. There may
have been traditions in which learned men studied a law which was
not recognized by the state or used to administer justice. But in the
Western tradition, that state sanctioned law has been the starting
point for jurists.
For example, when the Roman jurists considered liability for
fault, their starting point was not a general tort law but laws gov
erning specific torts. One was the lex Aquilia. It did not mention
fault. It imposed liability for certain harms on a person who acted
iniuria, which, meant, according to the jurists, that he acted contrary
to ius or what was right.' The jurists concluded that he must have
acted negligently or intentionally.2 When they considered the role of
consent in contract formation, they started with the rules that gov
erned particular contracts. According to these rules, only some con
tracts were binding upon consent.3 The jurists concluded, however,
that consent was required in all contracts.4 Moreover, genuine con
sent required knowledge. Therefore, according to Ulpian, a suffi
ciently important mistake would vitiate consent.5
Excerpts from the writings of the jurists were collected and
promulgated as law by the Emperor Justinian in the sixth century in
what was later called the Corpus iuris civilis. Its texts became the
starting point for jurists centuries later, who, once again, went be
yond these texts. For example, they concluded that the distinctions
between the lex Aquilia and other tort actions, and among contracts
that were and were not binding upon consent, were mere matters of
Roman positive law. In principle, the defendant should be liable for
fault in tort. In principle, all contracts should be binding on consent.6
Those conclusions eventually reshaped positive law. Versions of them
are found in every modern civil code. They raise further questions
which have required, and still require, further work by jurists: for
example, when and whether the defendant should be liable without
fault, and at what moment the contracting parties are bound.
Unlike the civil law, the common law was not shaped by the work
of jurists for a long time. Traditionally, those learned in law were
either judges or practitioners. There was little legal literature beyond
the reports of decided cases. A few treatises had been written, such as
Coke's Institutes, but they were unsystematic
in the extreme. The
1. Dig.
47.10.1.pr.
2. See Reinhard
Zimmermann,
The Law of Obligations: Roman Foundations
of the Civil Law Tradition
1005,
1007-09
(1990).
3. J. Inst.
3.13.22-26,
3.14.
4. Dig. 2.14.1.13.
5. Dig. 18.1.9.
6. James
Gordley,
Foundations of Private Law
Property, Contract, Tort,
Unjust Enrichment
161-62,
292-93
(2006) [hereinafter Gordley,
Philosophical Or
igins];
James
Gordley,
The Philosophical Origins of Modern Contract Doctrine
73-77
(1991) [hereinafter Gordley, Foundations].
2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 641
common lawyers did not try to be systematic. Their law was organ
ized, not by categories such as tort or contract, but by writs, such as
assault and battery or assumpsit. A constellation of past cases deter
mined when each writ could be brought. There was not much order in
the case law. For example, the common law courts sometimes men
tioned fault in connection with writs such as assault and battery, but
they did so unclearly so that it was impossible to tell whether fault
really mattered. Although the plaintiff in assumpsit had to prove
breach of a promise, the courts never considered the role of consent in
promising or whether a mistake could vitiate consent. Beginning
with Blackstone,7 matters changed. Treatise writers reorganized the
common law into doctrinal categories and formulated rules to explain
the cases, borrowing a good deal from civil law. Their method was
like that of the Roman jurists and their continental successors. They
worked in symbiotic relationship with the law as declared by state
authority, which, for them, was case law. They tried to explain this
law in a more systematic way by rules and doctrines which the judges
who had decided these cases did not distinctly have in mind. Judges
then drew upon their work to decide new cases, thus providing them
with further starting points. Their work shaped the modern common
law. The private law of most of the world is now derived from either
civil or common law. If by jurists, we mean those who try to under
stand law by working in symbiotic relationship with state authority,
then the law of the world is in large part the work of jurists.
Today, many who hold academic positions write about law in a
different way. For some academics, particularly in the United States,
the law as declared by state authority no longer seems to be the start
ing point. For others, particularly in continental Europe, the law de
clared by state authority has become an ending point. In both cases,
these academics often seem to have no need for the traditional
method of jurists. They write as though this method can teach them
nothing. That is why I think the intellectual tradition that began
with the Romans is threatened. If everyone writes that way, it will
disappear.
In the United States, in public law, the starting point for many
academics is a political theory. For others, it is a political agenda
such as the empowerment of the less privileged. Examples are those
who do "critical race studies" and "feminist legal theory." In private
law, the starting point for many academics is economic theory.
These jurists are not merely enriching the study of law with in
sights from a different perspective. They test the soundness of legal
rules by asking if these rules are consistent with their starting point.
Some think that is the only way to test the soundness of a rule. They
regard their starting point as exclusively correct, and believe the only
7. William
Blackstone,
Commentaries on the Laws of England
(1766).
642 THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 56
correct method is to explore its implications. For example, when Rich
ard Posner discusses American rules of private law, his sole concern
is whether economic principles can explain them.8 According to my
friend and former colleague Robert Cooter, while the law always had
the goal of shaping human conduct, from the time of the Romans un
til the rise of the law and economics movement, the results were hap
hazard. Now they can be established scientifically.9 Neither writer
seems to think that jurists have had an intellectually respectable
method of their own, one worthy of attention even after the advent of
the economic approach. I have the same sense when I read much that
is written about public law. One gets the impression that if only peo
ple long ago had the right political theory or the right political agenda
or the right economic principles, the world would never have needed
jurists, or at least not those who do what jurists have traditionally
done.
In continental Europe, the symbiotic relationship seems to be
threatened in the opposite way. The law declared by state authorities
is becoming, not merely a starting point, but an ending point. From
the time of Toullier to that of Planiol, the French wrote long multi
volume treatises filled mostly with the author's reflections. Now they
tend to write short works filled mostly with cases and code provisions
and punctuated by occasional reflections. German jurists once wrote
short but profound treatises like those of Puchta and Windscheid
which attempted to explain the foundational principles of private
law. Now, many German academics write contributions to long multi
volume treatises, each volume divided into a multitude of subsec
tions, and each subsection written by a different author. Each subsec
tion is a summary of code provisions and case law, punctuated by
Stichworte. The Einheit der Rechtsordung is either left to take care of
itself or is handled by cross-references. The short French treatises
tell a student what he should know to pass a course. The longer Ger
man ones tell the reader everything that the authors and their assist
ants know. But neither goes much distance from the law as it has
been declared by legislatures and judges. That law has become an
ending point.
More recently, the ending point has become the law that might
be declared some day by a hypothetical authority. Dozens of scholars
are working on a code-like document called the "Common Frame of
Reference." Its provisions are to be based on the existing codes and
case law of member states of the European Union. Synthesizing so
much legal material would seem to be an enormous intellectual pro
ject. It took the Germans decades to draft their civil code, even
though they built on earlier decades of work by German jurists who
8. Richard
Posner,
Economic Analysis of Law
(7th
ed.
2007).
9. Robert Cooter & Thomas
Ulen,
Law and Economics
(4th
ed.
2004).
studied Roman law. One would expect a synthesis of all European
law to take still longer, and to involve a least as much thought. The
deliberations needed for the project should themselves be of great in
tellectual value even if the Common Frame of Reference were never
enacted. As it happens, however, the project is to be completed in a
few years. Its architects apparently think that their deliberations do
not warrant publication. An interim volume on negotiorum gestio /
Geschdftfiihrung ohne Auftrag (translated as "Benevolent Interven
tion in Another's Affairs") contains a proposed set of rules and a sum
mary of the law of member states, but little discussion of the
principles underlying either the present rules or the ones it proposes.
We are told that differences of opinion were settled by majority vote,
but not what the differences were.10 There is empty space between
the law as it has been declared by state authorities in the past and
the law as it may be declared by some authority in the future. That
empty space is where the work of jurists used to be.
If the intellectual tradition in which jurists have worked is of lit
tle value, one wonders how it could have shaped the law that governs
most of the world. If it is of great value, one wonders why academic
writers in the United States and Europe are neglecting it. I think the
current neglect is a contemporary response to a crisis that has been
with us for some time. In my view, we were knocked off course by the
powerful critique, made in the twentieth century, of the legal method
of the nineteenth century. To see why the nineteenth century jurists
wrote as they did, and so were vulnerable to this critique, we must go
back still further. We must go back to an intellectual crisis that be
gan in the seventeenth century soon after Hugo Grotius finished his
great work, De iure belli ac pacis libri tres.
II. THE COMING OF RATIONALISM
Grotius wrote about the "natural law," a body of rules that every
human being should respect simply because he was a human being.
Although this law did not depend for its force on human authority,
nevertheless, Grotius was not hostile to the traditional method of ju
rists. He thought that the rules of natural law could be ascertained
by studying the law recognized by human authority. These rules
could not only be established "a priori" by "show[ing] the necessary
agreement of a thing with a reasonable and social nature." They
could also be established "a posteriori" by "infer[ring] that a thing is
part of the law of nature which is accepted as such among all, or at
least among all the more civilized nations."" While the first method
began with propositions about human nature and worked downward
10. Christian von
Bar,
Benevolent Intervention in Another's Affairs
(2007).
11. Hugo
Grotius,
De iure belli ac pacis libri tres Li. 12
(B.J.A.
de Kanter-van
Hetting Tromp ed., 1939).
to conclusions about law, the second, like the traditional method of
jurists, began with the law actually in force and worked upward to
more general propositions implicit in that law. Indeed, the law
"among all the more civilized nations" on which Grotius drew was,
almost invariably, the Roman law which was then in force in most of
continental Europe. He found it in the texts of the Justinian Corpus
as interpreted by later jurists.
Grotius thought that there could be a happy marriage between
these two methods. The conclusions reached by working downward
from philosophical principles should match those reached by working
upward from the law in force. This, indeed, had been the view of the
late scholastic or Spanish natural law school of the sixteenth and
early seventeenth century from whom Grotius borrowed many of his
conclusions. The members of that school had tried to synthesize Ro
man law with the philosophy of their intellectual heroes, Aristotle
and Thomas Aquinas. That philosophy provided them with a concept
of human nature on which they, like Aristotle and Aquinas, based
their opinions about justice. But they regarded Roman law as a legiti
mate starting point as well. They tried to find interpretations of Ro
man law that would be consistent with their philosophical principles.
When they succeeded, they said the Roman rule also belonged to the
law of nature. When they did not, they said the rule was merely one
of Roman positive law.12
A marriage with the philosophical method was possible only as
long as the philosophy in question did not claim that its principles
were the only legitimate starting point. Aristotelian and Thomistic
philosophy did not. In their philosophy, a person could discern how he
should act through the exercise of "prudence," a capacity possessed by
all human beings to a greater or lesser degree. Prudence was right
reason about things to be done. But it was not formal reasoning. A
prudent person might know what he should or should not do without
being able to explain why. Laws reflected the prudence of lawmakers.
It was no wonder that by examining these laws, one could arrive at a
better understanding of what conduct was right or wrong. One could
then try to explain why that conduct was right or wrong even though
the lawmaker might not have been able to give a clear explanation.13
Grotius published his book in 1625. In 1637, Rene Descartes,
often called the founder of modern philosophy, published his work
Discours de la methode. While the Aristotelian tradition had re
garded common sense and human experience as a source of truth,
Descartes believed that the only path to certainty was to begin by
doubting everything that could be doubted, even the existence of the
physical universe. He then tried to reconstruct human knowledge by
12. See
Gordley,
Philosophical
Origins, supra
note
6,
at 69-111.
13. See
Gordley, Foundations, supra
note
6,
at
7,
32-33.
starting with propositions which were self-evident in the sense that
to doubt them entailed a contradiction. He tried to derive conse
quences from these propositions by logical deduction as one would in
mathematics.
For one who accepted Cartesian philosophy and wished to write
about law, there could be no starting point except self-evident princi
ples which were known independently of experience, and no method
other than logical deduction from those principles. The new method
also changed the way in which principles were formulated. For
Descartes, concepts had to be clear and distinct and principles had to
be free from logical contradiction, as they were in mathematics. But,
in mathematics, concepts are not defined in terms of purposes. A
mathematician does not ask why it is for the best that a triangle have
three sides or that the number five be prime. To do law on the model
of mathematics, one would have to define legal institutions without
regard to the purposes the law ought to serve. In sharp contrast, for
Aristotle and Aquinas, every man-made object, and consequently
every human institution, had to be defined in terms of its purpose,
much as a brake must be defined in terms of the purpose of stopping
a car, or the stomach in terms of digesting food. Conceptual reasoning
could not be separated from reasoning about purposes.14
Thus a choice had to be made whether to write about law like
Grotius or to use the method of Descartes. The tension can be seen in
the work of Samuel Pufendorf, the other great seventeenth century
writer on natural law. Pufendorf waffled. In one work, De iure
naturae et gentium libri octo (1688), he imitated Grotius so faithfully
that he was called "son of Grotius" despite some introductory re
marks which do show a Cartesian influence. He cited a great deal of
Roman law. In another work, De officio humanis et civis iuxta legis
naturalem (1682), he presented legal rules as a series of deductions
from abstract statements about human nature. He cited no Roman
law or any other legal authority although his conclusions are much
like those that jurists had previously drawn.
After Pufendorf, writers on natural law seemed to realize that
they had to write one way or the other. Some influential writers ap
proached law like Grotius, although they no longer clearly distin
guished between a priori and a posteriori methods. Examples are
Jean Barbeyrac15 (1674-1744) who translated Grotius and
Pufendorf's Grotian work into French, adding a widely cited set of
notes, and the Frenchmen, Jean Domat16 (1625-96) and Robert
14. See
Gordley,
Philosophical
Origins, supra
note
6,
at 20-23.
15. See Jean
Barbeyrac,
Le Droit de la guerre et de la paix par Hugues Gro
tius
(1729);
Jean
Barbeyrac,
Le Droit de la nature et des gens . . .
par le baron
de
pufendorf
(1734).
16. See Jean
Domat,
Les Loix civiles dans leur ordre naturel
(2d ed.
1713).
646
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 56
Pothier17 (1699-1772), whose work later shaped the French Civil
Code. Other writers approached law in a Cartesian-fashion. The most
notable example was Christian Wolff (1679-1754). His treatises were
a series of definitions supposedly connected to conclusions by logical
deduction.18 As in mathematics, the conclusions were supposed to fol
low with deductive certainty. Many people in thel8th century
thought that Wolff had succeeded. He acquired an immense reputa
tion, especially in his native Germany. For many, his work epito
mized what it meant to write about "natural law."
For natural lawyers such as Wolff, the Roman texts ceased to
matter. Nevertheless, lawyers and judges needed books that would
explain the law in force. In France, this need could be met by writers
such as Pothier and Domat who cared about natural law but never
theless took the law in force seriously. In Germany and the Nether
lands, it was met, increasingly, by works such as Samuel Stryk's
Usus modernus pandectarum (1690 ff.). The authors of these works
made no use of the writings of the natural lawyers, to whom they
abandoned the intellectual high ground. Nor were these authors as
concerned as jurists once were with determining the scope of each
Roman text, with reconciling conflicts among texts, and with identify
ing rule or doctrines implicit in texts. Perhaps they thought that,
with the high ground abandoned, their task was the practical one of
exposition. Perhaps they thought that little of importance could be
learned from a close reading of the texts and prolonged reflection on
their meaning.
In any event, they wrote as though their job were to describe the
law in force in a manner that judges and lawyers could digest. Their
treatises consist of simplified propositions about Roman law accom
panied by citations to the Roman texts. Sometimes these propositions
convey, in a general way, what one might make of the texts, without
asking how the differences among them could be reconciled. Some
times they restate conclusions that had been familiar for centuries
without examining their foundation in the texts. Sometimes they
state what courts do in practice without explaining what courts
should do.
For Wolff, the law found in Roman texts or court practice was no
longer a starting point. For Stryk and his successors, it had become
an ending point. Thus the symbiotic relationship between the work of
jurists and the law in force was broken, and in the same ways that we
have seen in the writing of our contemporaries. If the trend had con
tinued until all those concerned with the larger principles neglected
17.
See, e.g.,
Robert
Pothier,
Trait? des obligations in 2 M.
Bugnet, ed.,
Oeuvres de Pothier
(2d ed.
1861).
18.
E.g.,
Christian
Wolff,
Ius naturae methodo scientifica pertractatum
(1740-48).
the law in force, and all those concerned about the law in force ne
glected the principles on which it was based, the intellectual tradition
started by the Roman jurists would have vanished. In the nineteenth
century, however, matters took a different course.
III. THE POSITIVIST ALTERNATIVE
The study of natural law was in discredit. As expounded by Gro
tius, it seemed naive. Suppose one doubted the philosophical princi
ples from which his a priori method began. Suppose one doubted that
the law accepted among "civilized nations" instantiated universal
principles, as his a posteriori method required. It would seem, as
Descartes had said, that the doubt could be relieved only by deductive
proof from principles one could not doubt. Nevertheless, it had be
come clear that such a proof was impossible. Wolff had failed. His
first principles might be free from contradiction but their truth was
not self-evident. His chains of reasoning lacked the integrity of
mathematics.
The alternative that academic writers found was legal positiv
ism. They grounded their work on legal texts actually in force. For
French writers, the texts were those of their Civil Code. For
Germans, they were the Roman texts of the Corpus iuris. According
to Savigny and his followers, although the texts were Roman, they
expressed the German Volksgeist, the mind or spirit of the German
people, which, they claimed, was the ultimate source of German law.
In common law jurisdictions, which had finally begun to produce aca
demic writers, the authoritative texts were the decisions of common
law courts.
The nineteenth century authors believed that these texts could
be interpreted without regard to any universal or natural princi
ples.19 Indeed, they had little use for any philosophical principles,
even those that had become fashionable in their own century. Em
manuel Gounot noted that the French authors had an "instinctive
distrust of all that is called philosophy ..20 Valerie Ranouil
agreed.21 Although she believed that they were influenced by Kant,
she acknowledged that they did not cite him and, indeed, never seem
to have read him.22 In contrast, Savigny had read Kant and Hegel
with some care. But he did not do law by working downward from
Kantian or Hegelian principles. He agreed with Kant that law ena
bled "free beings to exist together . .. unobstructed in their develop
19.
Gordley, Foundations, supra
note
6,
at
216-17, 220-22,
225-27.
20. Edouard
Gounot,
Le Principle de l'autonomie de la volont? 8
(thesis,
Paris, 1912).
21. She
quotes
him
favorably.
Val?rie
Ranouil,
L'autonomie de la volunt?:
NAISSANCE ET ?VOLUTION D'UN CONCEPT
79,
n.5
(1980).
22.
Id., 9,
53-55.
ment."23 He took the idea of a Geist from Herder and possibly Hegel.
Unlike Kant or Hegel, however, he did not believe one could begin
with the idea of freedom or the Geist and arrive at legal rules. The
rules that bounded one's freedom or manifested the Volksgeist were
to be found by studying the Roman texts. Thus Savigny did just
enough philosophy to build a wall behind which jurists could study
their texts without worrying about philosophical principles. Anglo
American writers seemed oblivious to such principles, even those of
English philosophers such as Bentham and Mill. Sir Frederick Pol
lock said that the "business" of jurists "is to learn and know . . . what
rules the State does undertake to administer, whatever the real or
professed reasons for these rules may be."24 "The morality of men liv
ing together," he said, is "an existing and sufficiently ascertained
fact. It is for the moralist and the metaphysician to analyze it if they
can. It is enough for us that it is there."25
While grounding their work in a set of authoritative texts, the
nineteenth century jurists went far beyond them. One of the best
works, by Charles Aubry and Charles Rau, began as a translation of
a commentary on French law by Zacharia von Lingenthal. The fourth
edition spanned eight volumes,26 but it was dwarfed by the later trea
tises of jurists such as Charles Demolombe27 and
Frangois
Laurent.28
As mentioned, the vast bulk of these works was spent commenting on
Code provisions and cases and not on summarizing them. One might
criticize their loquacity. But they were so well regarded that they
maintained their authority in France despite the wonders coming out
of Germany which shaped the law of other continental nations.
Beginning with Savigny, German jurists such as Puchta29 and
Windscheid30 built an intellectual system to explain the Roman texts
that was so clear, and yet intricate, and, in its way, so beautiful, that
my teacher John Dawson once called it one of the greatest achieve
ments of the human mind. He acknowledged its limitations, as do
most Germans today. Yet it provided a ground plan of private law
and a precise vocabulary that became the basis of the German Civil
Code.
23. 1 Friedrich Karl von
Savigny,
System
des heutigen R?mischen Rechts
? 52,
331-32
(Berlin, 1840).
24. Sir Frederick
Pollock,
A First Book of Jurisprudence for Students of
the Common Law
(1896),
26-27.
25. Sir Frederick
Pollock,
The Nature
of Jurisprudence
Considered in Relation to
Some Recent Contributions to
Legal Science,
in 1 Sir Frederick
Pollock,
Essays in
Jurisprudence
and Ethics 25-26
(1882).
26. Charles Aubry & Charles
Rau,
Cours de droit civil
fran?ais
d'apr?s
la
m?thode de Zachariae
(4th
ed.
1869-71).
27. Charles
Demolombe,
Cours
de Code Napol?on
(1854-82).
28.
Fran?ois Laurent,
Principes de droit civil
fran?ais (3d
ed. 1869-78).
29. Georg
Puchta,
Pandekten
(2d
ed.
1844).
30. Bernhard
Windscheid,
Lehrbuch des Pandektenrechts
(7th
ed.
1891).
The nineteenth century Anglo-American treatise writers, as we
have seen, found intellectual order when none had been seen before.
In their hands, the common law was transformed into a more or less
orderly set of doctrines.
Thus, in the nineteenth century, a symbiotic relationship
reemerged between the law expounded by learned writers and the
law declared in authoritative state-sanctioned texts. Out of that rela
tionship came much of the law that governs us. The work of the nine
teenth century jurists has been criticized. Their method has been
attacked. Yet to a great extent, we live parasitically off their conclu
sions, even though these conclusions have been much qualified in
both civil and common law jurisdictions.
IV. THE CRITICS
The attack, which began in the late nineteenth century, raised
two objections which proved difficult to answer. One was that any
number of interpretations could be logically consistent with an au
thoritative text. In France,
Frangois
G6ny argued that one could not
deduce the result to be reached in particular cases from the provi
sions of the Civil Code. His solution was what he called libre
recherche scientifique: "free scientific research."3' Many people who
saw the force of his objection found his solution puzzling. If one could
not interpret the Code by logic, what could one use instead? It would
seem that research becomes unscientific to the very extent the re
searcher is free to reach his own conclusions.
A second objection was that the nineteenth century jurists inter
preted their sources through the elucidation of concepts without in
quiring what purpose was served by defining a concept in one way
rather than another. For example, a contract was defined as the will
of the parties, or property as the exclusive right of an owner to use
what he owned as he chose, and then consequences were drawn from
these definitions, without considering why the law should enforce
contracts or protect property. In Germany, this objection was raised
by Rudolf von Jhering in his critique of
Begriffsjurisprudenz,
the ju
risprudence of concepts.32 The question then arose, what purposes
did the law serve? Savigny had said that the rules of private law set
boundaries to the rights of private persons to pursue their own pur
poses. Why and how did the law set those boundaries? Phillip
von
Heck, in his critique of conceptualist jurisprudence, said that the law
did so by balancing the interests of private parties. New cases should
31.
Fran?ois G?ny,
M?thode d'interpr?tation et sources en droit priv?
(2d
ed.
1919).
32.
E.g.,
Rudolf von
Jhering,
Der Zweck im Recht
(4th
ed.
1905).
be decided by striking the same balance.33 But Heck did not explain
why the law should assign more weight to one interest than to an
other, nor how one could tell what weight the law had assigned. In
deed, he did not explain what it meant to say an interest had weight.
In the common law world, both of these objections were made,
and forcefully, in the United States. They inspired the Legal Realist
movement of the 1920s and '30s. They were never successfully an
swered. But the Legal Realists, like continental critics, never
presented an alternative which their contemporaries found convinc
ing. Some academics tried to develop a new method based on interest
balancing or policy science. As time went on, that avenue of escape
seemed less promising. Many academics turned their attention else
where leaving the problems the Legal Realists had raised to slumber.
Unresolved problems do not sleep forever. These ones were
reawakened in the 1970s by the so-called Critical Legal Studies
movement which was centered at Harvard Law School. Some of its
most prominent members were willing to push the arguments of the
Legal Realists to their ultimate conclusion, a step few of the Legal
Realists were willing to take. The ultimate conclusion was that the
rule of law was an illusion. Every new case had to be resolved by
interpretation, and every interpretation was arbitrary. It was only a
matter of time until everyone recognized the illusion, and then law
would disappear. There would be no more lawyers or courts or legis
latures. I was on a fellowship at Harvard when the movement began.
It was like watching an earthquake, except that while some people
panicked, others cheered for the earthquake. Mysteriously, by 1990,
the ground ceased to shake. The questions the movement raised had
still not been answered, but legal academia had turned its attention
elsewhere.
The historical sketch we have given will enable us to see why
these objections took the form that they did, and why they were diffi
cult to answer. The nineteenth century jurists had turned their back
on rationalists such as Christian Wolff. They had grounded their
work on authoritative texts which they explained by formulating sys
tematic doctrine. By so doing, they reestablished a relationship be
tween legal scholarship and state-sanctioned texts that was much
like the traditional one which had come under fire in the seventeenth
and eighteenth centuries. Yet the legal positivism of the nineteenth
century jurists was not merely a return to the traditional method.
They borrowed more than they realized from the rationalism they
rejected.
To begin with, the nineteenth century jurists never rejected the
claim that the only way to draw a conclusion was to begin with a
33.
E.g.,
Philip von
Heck,
Begriffsbildung und Interessenjurisprudenz
(1932).
secure starting point and proceed by deductive logic. The starting
point was now to be found in authoritative texts rather than in sup
posedly self-evident principles. The self-evident principles had once
been thought to be secure because they were self-evidently true. To
preserve that certainty, conclusions had to follow inexorably, as in
mathematics, by deductive logic. The authoritative texts were now
thought to be secure because the source of law was state authority.
These texts were no longer regarded as partial expressions of more
basic truths which the lawmakers had glimpsed. Conclusions had to
follow inexorably or they would not possess the authority of the start
ing point. If a jurist allowed his own conceptions of what the law
should be to affect his conclusions, he would have made law. He
would have usurped authority. Descartes and Wolff claimed that
their conclusions followed by deductive logic because they wanted the
certainty of mathematics. The nineteenth century jurists never re
jected this claim because it was hard to see how their conclusions
could have authority otherwise. Only deductive logic seemed inexora
ble. Thus they were vulnerable when critics pointed out that deduc
tive logic wouldn't work.
Moreover, for the nineteenth century jurists, as for rationalists
such as Wolff, legal concepts were no longer defined, as they were in
the Aristotelian tradition, in terms of the purposes which a rule or a
legal institution served. If they had been, the application of rules and
the structure of institutions would depend on their suitability for a
purpose. Because suitability varies according to the circumstances, it
would then follow, as Aristotle said, that every authoritative state
ment of law is incomplete and needs to be revised when circum
stances change. Legal conclusions could not have the certainty of
mathematics, as Wolff desired. They could not be mere statements of
matters which authority had already resolved, as the nineteenth ju
rists wished. The jurist would not be expounding, as Pollock put it,
the "rules the State does undertake to administer, whatever the real
or professed reasons for these rules may be." The jurist's conclusions
would not be the mere exegesis of a civil code or the articulation of
the demands of a Volksgeist. Thus the nineteenth century jurists
were vulnerable to critics who attacked them as conceptualists who
ignored the purposes that the law serves.
The nineteenth century jurists were vulnerable, then, because
they had combined the traditional method of jurists, based on a
symbiotic relationship with the law in force, with a rationalism that
made that relationship impossible. The objections raised against
them were hard to answer because they pointed to difficulties that
existed precisely because of this combination of incompatible ele
ments. The objections cannot be answered by someone who accepts
the rationalist premises that legal reasoning must be deductive, and
that legal concepts can be defined without regard to purpose. They
have no force against someone who does not. Roman jurists reasoned
non-deductively and developed rules that served the purposes of their
society rather well. For them to be troubled by these objections, one
would first have to convince them they were not reasoning at all, and
then that their concern with concepts was somehow an obstacle to a
concern with purposes. Confronted with these objections, a Roman
jurist might have shrugged. A jurist in the Aristotelian tradition
would have recapitulated Aristotle's account of how practical reason
ing differs from deductive logic, and why human institutions must be
defined in terms of their purposes.
Indeed, the critics who raised these objections seemed to have
had the same difficulty as their adversaries in imagining how reason
ing could be valid, objective, and neutral without being deductive,
and how one could combine thinking in terms of concepts and think
ing in terms of purposes. To put it another way, their very objections
have been based on the rationalist premises that made their adversa
ries vulnerable to attack.
Geny criticized the use of deductive logic but he gave no clear
account of how else one could reason. Libre recherche scientifique
does not sound like a mode of reasoning. Heck rejected conceptual
jurisprudence, but he did not ask what purposes were served by legal
institutions such as tort or contract, or how these purposes were re
lated to concepts such as fault and consent. He thought one must
speak only of the purposes of individuals, and of the balance struck
by the law among their conflicting interests in pursuing them.
The most radical critiques are the ones that fully accept these
premises. On these premises, the radical critiques are correct. Law
must be arbitrary and the rule of law an illusion if, indeed, the only
way to reason about law is by deductive logic. Law must be merely a
tool of the powerful if, indeed, the purposes it serves cannot be de
fined neutrally but must be reduced to the purposes favored by indi
viduals. Law will then be the dictate of those in power as to whose
purposes they favor.
Radical critics ought to explain why they believe that legal rea
soning must be deductive and why the purposes of rules or institu
tions cannot be defined neutrally. Seventeenth and eighteenth
century jurists thought that these premises would give their conclu
sions certainty. Nineteenth century jurists thought that they would
give their conclusions authority. They were mistaken. But one can
understand their desire for certainty or for the sanction of authority.
It is harder to understand the radical critics. They seem to accept the
same premises either because they can't think of an alternative or
because these premises do undermine the possibility of law. Indeed,
they undermine any form of the symbiotic relationship on which the
work of jurists has depended.
Few now believe that the rule of law is an illusion or merely a tool of
the powerful. Yet a dwindling number are committed to probing the
law in force in search of more basic principles, as jurists traditionally
have done. That sort of work has been discredited-if we are right
for the wrong reasons. Nineteenth century jurists tried to escape a
rationalist version of natural law without escaping its premises. They
were attacked by critics who themselves accepted these premises
without seeing any need to defend or explain them. The real illusion
is that their attack has much to do with the traditional work of ju
rists. Once we realize that it does not, perhaps we can get back to
work.

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The State's Private Law and Legal Academia

Author(s): James Gordley

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