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Telling the Law’s Two Stories

Published online by Cambridge University Press:  13 April 2016

Michael Robertson
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Extract

In jurisprudence there is an orthodox position which stresses law’s rationality and coherence, and an unorthodox position which stresses law’s inconsistency and malleability. It is often assumed that you have to choose one and reject the other, but I want to consider the position that law cannot reject either orthodoxy or unorthodoxy as general accounts of law. This is not an attempt to produce a synthesis of the two accounts, or an attempt to say that each account is true of part of the law. Rather it is the claim that law is required to tell two incompatible stories about itself in order to do the important jobs assigned to it in Western pluralist societies. I argue that this jurisprudential position is advanced by Thurman Arnold, Oren Perez, Anthony Kronman, Karl Llewellyn and Stanley Fish.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 2 , July 2007 , pp. 429 - 451
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

My thanks to Richard Bronaugh for his very helpful critique of an earlier version of this paper.

1. Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961)Google Scholar at ch. 7.

2. For analyses of the meaning of legal pragmatism and its relationship to philosophical pragmatism, see Dickstein, Morris, ed., The Revival of Pragmatism: New Essays on Social Thought, Law, and Culture (Durham, NC: Duke University Press, 1998)CrossRefGoogle Scholar; Michael Brint & Carver, William, eds., Pragmatism in Law and Society (Boulder, CO: Westview Press, 1991)Google Scholar; Warner, Richard, “Legal Pragmatism” in Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996) 385.Google Scholar

3. Tamanaha, Brian Z., On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar at chs. 1 and 2.

4. Aristotle, Politics, quoted in Tamanaha, ibid. at 9.

5. Tamanaha, supra note 3 at 11.

6. Kronman, Anthony T., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, MA: Belknap Press of Harvard University Press, 1993)Google Scholar at ch. 4.

7. Tamanaha, supra note 3 at ch. 9.

8. Llewellyn, Karl N., Jurisprudence: Realism in Theory and Practice (Chicago, IL: University of Chicago Press, 1962) at 90–91 Google Scholar, n. 8. See Llewellyn, too Karl N., The Common Law Tradition: Deciding Appeals (Boston, MA: Little, Brown, 1960) at 116 Google Scholar, 181, and especially 341-42.

9. Altman, Andrew, “Legal Realism, Critical Legal Studies, and Dworkin” (1986) 15 Phil. & Public Affairs 205 Google Scholar at 211.

10. Walter Cook, Wheeler, quoted in Kalman, Laura, Legal Realism at Yale, 1927-1960 (Chapel Hill: University of North Carolina Press, 1986) at 22.Google Scholar For Karl Llewellyn to similar effect, see Jurisprudence, supra note 8 at 95 and The Common Law Tradition, supra note 8 at 185. The same analysis would hold for statute law as well as case law.

11. Altman, supra note 9 at 221.

12. Arnold, Thurman N. The Symbols of Government (New York: Harbinger Books, Harcourt, Brace & World, Inc., 1962)Google Scholar. (Originally pub. in 1935 by Yale University Press.)

13. Ibid. at 9-10.

14. See Rumble Jr., Wilfred E., American Legal Realism. Skepticism, Reform, and the Judicial Process (Ithaca, NY: Cornell University Press, 1968) at 140 Google Scholarff.

15. Arnold, supra note 12 at 44 and see 7-8.

16. Ibid. at 34.

17. Ibid. at 248-49.

18. Ibid. at 147.

19. Ibid. at 49-50, 57-58.

20. Ibid. at 64-65.

21. Perez, Oren, “The Institutionalisation of Inconsistency: From Fluid Concepts to Random Walk” in Perez, Oren & Teubner, Gunther, eds., Paradoxes and Inconsistencies in the Law (Oxford: Hart, 2006) 119.Google Scholar

22. Ibid. at 119.

23. Ibid. at 121.

24. Ibid. at 122.

25. Ibid. at 123-27, 131-37.

26. Ibid. at 127.

27. Kronman, supra note 6 at 162.

28. Ibid. at ch. 2 (“Practical Wisdom and Political Fraternity”).

29. Ibid. at 340-41.

30. Frank, Jerome, Law and the Modern Mind (London: Stevens, 1949)Google Scholar, especially chs. 1, 12, 13. See too Kronman, supra note 6 at 191-93.

31. See Llewellyn, Jurisprudence, supra note 8 at 21ff, 53ff, 126; The Common Law Tradition, supra note 8 at 179, 181, 185, 190.

32. Llewellyn, The Common Law Tradition, supra note 8 at 36ff, 62ff.

33. Llewellyn develops this position throughout The Common Law Tradition, supra note 8 especially 213ff (“Appellate Judging as a Craft of Law”). See too Llewellyn, Jurisprudence, supra note 8 at 116ff. As we shall see, this stress on the importance of being embedded within a craft-tradition anticipates Stanley Fish’s account of “interpretive communities”.

34. Kronman argues that in emphasizing the constraining role of legal tradition, Llewellyn moved away from the scientific model of law to which he had earlier been attracted. See Kronman, supra note 6 at 209-10.

35. See Llewellyn, Jurisprudence, supra note 8 at 357-59 and see Llewellyn, K.N., “The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method” (1940) 49 Yale L. J. 1355.CrossRefGoogle Scholar

36. Llewellyn, Jurisprudence, supra note 8 at 142.

37. Ibid. at 90.

38. Ibid. at 97.

39. Llewellyn, The Common Law Tradition, supra note 8 at 77ff (precedents) and Appendix C (statutes).

40. Cohen, Felix, “Transcendental Nonsense and the Functional Approach” (1935) 35 Colum. L. Rev. 809 at 833 Google Scholar.

41. Llewellyn, Jurisprudence, supra note 8 at 90-91, n. 8 [emphasis in original]. See too Llewellyn, The Common Law Tradition, supra note 8 at 5, 116, 181, and especially 341-42.

42. Fish, Stanley, There’s No Such Thing as Free Speech … And It’s a Good Thing, Too (New York: Oxford University Press, 1994) at 173 Google Scholar, 177.

43. Ibid. at 142.

44. Fish, Stanley, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989)CrossRefGoogle Scholar at 137 and see 157, and Fish, There’s No Such Thing as Free Speech, supra note 42 at 143.

45. Fish, supra note 42 at 213.

46. Ibid. at 142.

47. For an expansion of this argument, see Robertson, Michael, “Does the Unconstrained Legal Actor Exist?” (2007) 20 Ratio Juris 258.CrossRefGoogle Scholar

48. Fish, supra note 42 at 134-38. See generally Fish, Stanley, The Trouble with Principle (Cambridge, MA: Harvard University Press, 1999).Google Scholar

49. See Fish’s discussion of the different conceptions of reason held by secular humanists and conservative Christians in Fish, supra note 48 at Part III (“Reasons for the Devout”). For an analysis of the argument, see Robertson, Michael, “The Limits of Liberal Rights: Stanley Fish on Freedom of Religion” (2002) 10 Otago L. Rev. 251.Google Scholar

50. Fish, supra note 42 at 175. See Robertson, Michael, “Principle, Pragmatism, and Paralysis: Stanley Fish on Free Speech” (2003) 16 Can. J. L. & Juris. 287 CrossRefGoogle Scholar for an analysis of how Fish advances this argument in the context of the free speech principle.

51. Fish, supra note 44 at 131 and see 516, and Fish, supra note 42 at 158-59.

52. Fish, supra note 42 at 179.

53. Ibid. at 209.

54. Ibid. at 173 and 176. On this point see generally 171-77.

55. Ibid. at 222.

56. Ibid. at 141-68.

57. Ibid. at 163-64. See 170 for Fish’s description of Clare Dalton’s similar analysis of contract law.

58. See supra note 41.

59. Fish, supra note 44 at 514-15 and see 94, 523, and Fish, supra note 42 at 271.

60. See supra note 38.

61. Fish, supra note 42 at 169.

62. Ibid. at 161.

63. Ibid. at 179.

64. Ibid. at 170.

65. Ibid. at 156.

66. See Fish, supra note 44 at ch. 20 (“Rhetoric”).

67. Fish, supra note 42 at 156.

68. Ibid. at 168.

69. Ibid. at 169.

70. Ibid. at 176.

71. Ibid. at 179.

72. See Fish, supra note 48 at 113-14, 150, and especially at 292.

73. See Robertson, Michael, “‘What Am I Doing?’ Stanley Fish on the Possibility of Legal Theory” (2002) 8 Legal Theory 359 CrossRefGoogle Scholar on the consequentiality of “strong theory” and “sham theory”.

74. See supra note 49.

75. See supra note 29.

76. See Harden, Ian & Lewis, Norman, The Noble Lie: The British Constitution and the Rule of Law (London: Hutchinson, 1986).Google Scholar

77. For Fish’s development of this general position, see Fish, Stanley, Is There a Text in this Class? The Authority of Interpretive Communities (Cambridge, MA: Harvard University Press, 1980)Google Scholar at Part II. For him applying this analysis to law, see Fish, supra note 42 at 141-56.

78. See Fish, supra note 42 at 151-52 for this point being made with respect to the parol evidence rule, and at 162-63 for this point being made with respect to the consideration requirement in contract law.

79. Ibid. at 204.

80. For an expansion of this argument, see Robertson, “Does the Unconstrained Legal Actor Exist?” supra note 47.

81. Fish, supra note 42 at 301 and see Fish, supra note 48 at 294-95: “… when you come to the end of the anti formalist road what you will find waiting for you is formalism; that is, you will find the meanings that are perspicuous for you, given your membership in what I have called an interpretive community, and so long as you inhabit that community (and if not that one, then in some other), those meanings will be immediately conveyed by public structures of language and image to which you and your peers can confidently point.”

82. Fish, supra note 48 at 124.

83. Fish, supra note 42 at 4.

84. Ibid. at 191.

85. Ibid. at 290-91. See also 191, 240.

86. Ibid. at 156.