1. Bishop, Joel, Joel Prentiss Bishop, 20 Cent. L.J. 321, 322 (1885)Google Scholar (quoting letter from the University informing Bishop of his award). See also, Note, A Deserved Tribute, 18 Am. L. Rev. 853, 854 (1884)Google Scholar; Letter to Author from Dr. Franziska Rogger, University Archivist, Universitat Bern (July 16, 1993) (indicating Bishop was the only American honoree for any degree).

2. Note, Mr. Bishop as a Law Writer, 21 Cent. L.J. 81 (1885) (quoting with approval The Chicago Legal News)Google Scholar; Bishop, supra note 1, at 321.

3. Note, supra note 1, at 853–54.

4. Id. at 854.

5. Bishop is remembered chiefly by specialists in the history of family law. See infra note 18. He is also a standard reference for scholars and practitioners seeking to determine nineteenth-century family law, criminal law, and criminal procedure doctrines. A search in the Westlaw text and periodicals data base, using the parameters “‘J. Bishop’ or Joel w/2 Bishop & date (after 1989),” produced forty-nine articles using his work, chiefly in the criminal and family law areas. The same search in Westlaw's United States Supreme Court data base produced ten cases drawing from his work in criminal procedure, criminal law and torts.

6. This article employs the term “classical” to describe the dominant strand of American legal thought between 1850 and 1930. For a generation, scholars used the term “legal formalism” to describe this strand, and some scholars still do. I regard “classicism” and “formalism” as interchangeable terms. I prefer “classicism” because commentators generally employed “formalism” in analyzing late-nineteenth-century private law thought. Scholars who speak of “classical legal thought” tend to study both private and public law jurisprudence, emphasizing their interconnection. See infra text accompanying note 166. While this study focuses on a private law scholar, I adopt “classical” as the appropriate usage because I agree that late-nineteenth-century public and private law were two aspects of a unified whole.

7. See infra text accompanying notes 14–17. See also Simpson, A. W. B., The Rise and Fall of the Legal Treatise, 48 U. Chi. L. Rev. 632, 674, 677 (1981)CrossRefGoogle Scholar (recognizing Bishop as a precursor to Langdell).

8. See, e.g., Friedman, Lawrence, A History of American Law 611–19 (2d ed. 1985)Google Scholar; Grey, Thomas, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983).Google Scholar The studies that cast a wider net still treat classicism as a monolithic project dominated by, or typified by, developments at Harvard. See, e.g., Horwitz, Morton, The Transformation of American Law, 1870–1960, at 13–16, 35–39 (1992).Google Scholar

9. See, e.g., Horwitz, supra note 8; Howe, Daniel, The Political Culture of American Whigs 210–38 (1979)Google Scholar; Newmyer, Kent, Supreme Court Justice Joseph Story (1985)Google Scholar; Presser, Stephen, The Original Misunderstanding (1991).Google Scholar

10. See, e.g., Forbath, William, Law and the Shaping of the American Labor Movement (1991).Google Scholar

11. See infra text accompanying notes 150, 156–58.

12. The remarks in the following paragraphs are drawn principally from Bishop, supra note 1, at 321; Bishop, Charles, Joel Prentiss Bishop, LL.D., 36 Am. L. Rev. 1 (1902).Google Scholar Other sources are 2 Knot, H. W. Howard, Joel Prentiss Bishop, Dictionary of American Biography (1929)Google Scholar; Note, Death of Joel Prentiss Bishop, 23 Nat. Corp. Reptr. 326 (1901). These sources will not be cited further.

13. Bishop, supra note 1, at 321.

14. Bishop, Joel, Commentaries on the Law of Marriage and Divorce (1852).Google Scholar Bishop eventually expanded this work to two volumes and saw it through seven thoroughly revised editions. The seventh edition was retitled 1–2 New Commentaries on Marriage, Divorce, and Separation (1891).

15. 1 Bishop, Joel, Commentaries on the Law of Criminal Procedure (3d ed. 1880).Google Scholar After 1852, Bishop virtually abandoned involvement in social causes, writing only a few pamphlets and speeches on the issues of his time. See Bishop, Joel, Thoughts for These Times (1863)Google Scholar; Bishop, Joel, Secession and Slavery (1864)Google Scholar; Bishop, Joel, Strikes and Their Related Questions (1886)Google Scholar; Bishop, Joel, The Common Law as a System of Reasoning, 22 Am. L. Rev. 1 (1888)Google Scholar, republished as Joel Bishop, the Common Law and Codification (1888).

16. 1 Bishop, Joel, New Criminal Procedure vi (2d ed. 1913).Google Scholar

17. Bishop, Joel, The First Book of the Law (1868).Google Scholar In addition to this book, Bishop published a series of short articles concerning the role of principles in the law. Bishop, Joel, Law in the United States (pts. 1–8), 3 Am. L. Reg. 60, 185, 252, 312, 381, 505, 632, 759 (1855)Google Scholar [hereinafter Principles]. In addition to his work on marriage and divorce, see supra, he wrote 1–2 Bishop, Joel, Commentaries on the Law of Married Women (1871–1875)Google Scholar on the common law and the rapidly developing statutory reforms of that area. Bishop's work on criminal law, 1–2 Bishop, Joel, Commentaries on the Criminal Law (1856–1858)Google Scholar went through eight thoroughly revised editions. The eighth edition was retitled 1–2 Bishop, Joel, New Commentaries on the Criminal Law (1892)Google Scholar. This work was sufficiently popular for another edition to be published twenty-two years after his death. Id. (John Zane and Carl Zollmann eds. 1923). His work on criminal procedure, 1–2 Bishop, Joel, Commentaries on the Law of Criminal Procedure (1866)Google Scholar went through four thoroughly revised editions. The fourth edition was retitled 1–2 Bishop, Joel, New Commentaries on the Law of Criminal Procedure (1895–1896)Google Scholar. This work was sufficiently popular for another edition to be published twelve years after his death. Id. (H. C. Underhill ed. 1913). For Bishop's work on statutory interpretation, see Bishop, Joel, Commentaries on the Written Laws and Their Interpretation (1882)Google Scholar; for contract law, see Bishop, Joel, Commentaries on the Law of Contracts (1887)Google Scholar [hereinafter Contracts]. This work was sufficiently popular for another edition to be published seven years after his death. Id. (M. C. Early ed. 1907). Bishop's main work on contracts was an expansion of an earlier volume, Bishop, Joel, The Doctrines of the Law of Contracts (1878).Google Scholar For tort law, see Bishop, Joel, Commentaries on the Non-Contract Law (1889).Google Scholar

18. Bishop thought his writings in these areas “wrought a revolution.” 1 Bishop, New Criminal, supra note 17, at xiii. See also 1 Bishop, New Marriage, supra note 14, at v (describing judicial conformity to his views). In family law, Bishop's opinion may be close to the mark. See, e.g., Swisher, Peter, Miller, H., and Weston, William, Family Law: Cases, Materials and Problems XXV (1990).Google Scholar He is still a standard reference for modern scholars seeking to describe nineteenth-century family law. Bishop is discussed, for example, in Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America 21–24, 89–90, 144–45, 291–92 (1985).Google Scholar

19. See, e.g., 1 Bishop, New Marriage, supra note 14, at 486 n.3; Charles Bishop, supra note 12, at 7; Book Review, 17 Am. L. Rev. 580, 583 (1883); Book Review, 27 Am. L. Rev. 973, 947 (1893); supra text accompanying notes 1–5, note 18 and infra notes 70, 72.

20. See, e.g., 1 Bishop, New Marriage, supra note 14, at xxvii; Schouler, James, A Treatise on the Law of Personal Property v (1873)Google Scholar; Charles Bishop, supra note 12, at 1–9; Note, supra note 2, at 81; Book Review, 27 Am. L. Rev. 937, 947 (1893); supra text accompanying note 3.

21. Neither does this summary reveal some of Bishop's less attractive qualities: his inordinate vanity, conceit and self-righteousness. See Book Review, 19 Am. L. Rev. 463, 465 (1885); Book Review, 27 Am. L. Rev. 937, 938 (1893).

22. I have not discovered any direct evidence of Bishop's denominational affiliation. His views accord with New School Presbyterian views, and the area in which he was raised and the schools he attended were dominated by that denomination. His denomination, however, is less important than his general evangelical, Protestant religiosity.

23. See infra text accompanying notes 171–86. Harvard scholars were fairly taciturn about their jurisprudence. Dean Langdell, for example, left only a few short jurisprudential musings. Samuel Williston, despite a multi-volume corpus of writings, only treated legal philosophy in a superficial discussion in his autobiography, Williston, Samuel, Life and Law 198–216 (1940).Google Scholar Thomas Grey's marvelous reconstruction of the Harvard Law School's strand of classicism, in Grey, supra note 8, is so masterful because he had so little writing from which to draw. John Chipman Gray and John Henry Beale were something of exceptions to these comments.

24. Although Bishop wrote one book and one series of short articles on jurisprudence, see supra note 17 and accompanying text, most of his treatises contain lengthy prefaces addressing jurisprudential concerns. He also occasionally inserted jurisprudential discussions into the treatises' text. See, e.g., 1 Bishop, Criminal (2d ed.), supra note 17, at 1–13; Bishop, Non-Contract, supra note 17, at 33–37, 385 n.3, 617–39.

25. I draw my understanding of classical legal thought from Horwitz, supra note 8, at 9–63; Grey, supra note 8; Hoeflich, Michael, Law & Geometry: Legal Science from Leibniz to Langdell, 30 Am. J. Leg. Hist. 95, 95–96, 119–21 (1986)CrossRefGoogle Scholar; Kennedy, Duncan, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940, 3 Res. L. & Soc. 3 (1980)Google Scholar; Pound, Roscoe, Mechanical Jurisprudence, 8 Colum. L. Rev. 605 (1908)CrossRefGoogle Scholar; Siegel, Stephen, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. Rev. 1 (1991).Google Scholar

26. See, e.g., Grey, supra note 8, at 5.

27. See, e.g., id. at 16–20.

28. See, e.g., Friedman, supra note 8, at 613–14, 617–18.

29. See, e.g., id.; Grey, supra note 8, at 10–11, 13, 16–20, 24–28; Hoeflich, supra note 25, at 119–21.

30. Gray, John Chipman, The Rule Against Perpetuities (1886).Google Scholar This analysis of Gray's treatise is drawn from Siegel, Stephen, John Chipman Gray, Legal Formalism, and the Transformation of Perpetuities Law, 36 Univ. Miami L. Rev. 439, 439–55 (1982).Google Scholar

31. Gray, supra note 30, at ix.

32. Id. at ix.

33. Siegel, supra note 30, at 440–46, 449–53.

34. Id. at 454.

35. Fox, Jabez, The Criticism of Cases, 6 Harv. L. Rev. 195, 200 (1892).CrossRefGoogle Scholar

36. Gray, John Chipman, Remoteness of Charitable Gifts, 7 Harv. L. Rev. 406, 408 (1894).CrossRefGoogle Scholar

37. Id. at 407, 408.

38. See Gray, John Chipman, The Nature and Sources of Law 101, 225 (2d ed. 1921)Google Scholar; Gray, supra note 30, at v. Significantly, Gray acknowledged that legal and natural science were dissimilar in that a mistaken theory of a legal scientist could become the truth. Gray, Nature, supra, at 101, 225.

39. On the classicists' claim to study law as positive scientists, see Siegel, Stephen, Historism in Late Nineteenth-Century Constitutional Thought, 1990 Wis. L. Rev. 1431, 1437, 1515–47Google Scholar; Hoeflich, supra note 25, at 119–21.

40. See, e.g., 1 Bishop, New Marriage, supra note 14, at iii–iv, xxi; Bishop, First, supra note 17, at 138–42; Bishop, Non-Contract, supra note 17, at 35–36.

Baconian methodology stood for the use of empirical observation and inductive reasoning in searching for the principles governing events in the phenomenal world. Compared to modern philosophies of inductive science, it was a simplistic and naive assertion of the possibility and procedures of experimental method. Yet it was the reigning paradigm of scientific investigation throughout the first half of the nineteenth century. See, e.g., Bozeman, Theodore, Protestants in an Age of Science: The Baconian Ideal and Antebellum Religious Thought 3–31, 72–74 (1977)Google Scholar; Hovenkamp, Herbert, Science and Religion in America, 1800–1860, at 23–38 (1978)Google Scholar; March, , The Relation of the Study of Jurisprudence to the Origin and Progress of the Baconian Philosophy, 6 New Englander 548 (1848).Google Scholar

On Bishop's belief in the power of Baconian method and empirical observation, see 1 Bishop, New Marriage, supra, at iv, xix; 1 Bishop, Marriage (6th ed.), supra note 14, at xiii; 1 Bishop, Procedure (3d ed.), supra note 17, at viii–xi.

41. See, e.g., 1 Bishop, New Marriage, supra note 14, at xxv–xxix; 1 Bishop, Criminal (2d ed.), supra note 17, at ix; Bishop, Contracts, supra note 17, at x, xi; Bishop, First, supra note 17, at 107–08; 1 Bishop, Procedure, supra note 17, at 718; 1 Bishop, Procedure (3d ed.), supra note 17, at xiii; 2 Bishop, Women, supra note 17, at vi–vii.

Most classical scholars said they were merely describing American law, but never seemed to find instances of conflict between good morals and existing law. See, e.g., Siegel, supra note 39, at 1465–69. Bishop, in pursuing his positivist stand, on occasion did point out doctrines in which American law differed from morally correct law. See, e.g., 1 Bishop, Criminal (2d ed.), supra note 17, at 7 (discussing caveat emptor).

42. 1 Bishop, Criminal (2d ed.), supra note 17, at 3.

43. Bishop, First, supra note 17, at 108. See also material cited infra note 71; 1 Bishop, Procedure, supra note 17, at 717–18 (positivist analysis of appropriate legal argument). Bishop's disquisitions on separating law and morals must be read with the caveat that he thought moral principles were part of the legal system's principles. See infra text accompanying notes 84–91.

44. Holmes, Oliver Wendell, The Path of the Law, 10 Harv. L. Rev. 457, 457, 458, 461, 465 (1897).Google Scholar The modernity of this stance is discussed in Horwitz, supra note 8, at 53, 56, 59–60, 140. In Holmes's view, a prediction theory of law necessitated rejection of the classical view that law “is something different from what is decided by the courts …, that it is a system of reason … which may or may not coincide with the decisions.” Holmes, supra, at 460; Horwitz, supra, at 140. Bishop, however, argued that the prediction theory necessitated rejection of the view that the law was what courts had decided. To him, it counseled adoption of the “system of reason” view. See infra text accompanying notes 88–91, 186.

45. Bishop, Contracts, supra note 17, at x. See also Bishop, Marriage, supra note 14, at vii; 1 Bishop, Procedure, supra note 17, at 703, 737–38; 1 Bishop, Criminal (4th ed.), supra note 17, at 21; Bishop, Contracts, supra note 17, at x; Bishop, First, supra note 17, at 127, 141–42.

Holmes and Bishop also agreed that the great legal scholar wrote for and achieved more influence on the future than on the present. Holmes, supra note 44, at 478; 1 Bishop, Procedure (3d ed.), supra note 17, at v; 1 Bishop, Marriage (6th ed.), supra note 14.

46. See, e.g., Bishop, Non-Contract, supra note 17, at 33–35; Bishop, Principles (pt. 2), supra note 17, at 186; Bishop, Principles (pt. 3), supra note 17, at 253; Bishop, Principles (pt. 5), supra note 17, at 382; Holmes, Oliver Wendell, The Common Law 1, 127 (1881).Google Scholar

47. See, e.g., Bishop, First, supra note 17, at 127, 141–42; Holmes, Oliver Wendell, Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1 (1870)Google Scholar; Holmes, supra note 46, at 77–78, 127. Sometimes Bishop says the law begins with popular customs which the courts adopt. But he depicts customs as discrete decisions about proper behavior and not as conscious applications of abstract principles or theories. See, e.g., Bishop, New Marriage, supra note 14, at 289; Bishop, Contracts, supra note 17, at 171; Bishop, Non-Contract, supra note 17, at 612–13; 1 Bishop, Women, supra note 17, at 674–75.

48. As Bishop says “It sometimes happens that the facts which are presented to the practitioner or the court are the same which have transpired and been passed upon before. But this can be only when the parties have dropped out something from their recital because of an instinctive feeling that it is unimportant. In truth, no two sets of facts were ever absolutely identical.” Bishop, System, supra note 15, at 4–5.

49. See, e.g., 1 Bishop, Procedure, supra note 17, at 703–05, 708–09; Bishop, System, supra note 15, at 4–5, 8–9; Bishop, Joel, The Elements Distinguishing the Successful From the Ordinary Legal Practitioner, and What They Suggest, 17 Am. L. Rev. 80, 85 (1883)Google Scholar; Bishop, First, supra note 17, at 253, 286–87; 1 Bishop, Marriage (6th ed.), supra note 14, at xvi–xxiv.

50. See, e.g., 1 Bishop, New Marriage, supra note 14, at xxv; 1 Bishop, Procedure, supra note 17, at 704–05; Bishop, Principles (pt. 3), supra note 17, at 253.

51. These presuppositions are discussed infra text accompanying notes 75–77.

52. An example of a legal point is that when a contract is formed through the mail, an offer's acceptance is effective upon dispatch, see Adams v. Lindsell, 1 B. & Aid. 681, 106 E.R. 250 (K.B. 1818); Bishop, Contracts, supra note 17, at 123–24. An example of a legal principle is that unsealed, executory contracts require consideration, and that consideration is “something esteemed in law as of value.” Bishop, Contracts, supra note 17, at 14–23.

53. See, e.g., Bishop, First, supra note 17, at 77–95, 139–42. Bishop acknowledged that jurists derive legal principles from a variety of sources beyond judicial decisions. See infra text accompanying note 87. Their studies center on precedent, however, because that is the most common source of law and because it often represents a consideration of the other sources.

54. See, e.g., Bishop, Principles (pt. 7), supra note 17, at 632, 633; Bishop, Elements, supra note 49, at 81; Bishop, First, supra note 17, at 144–45; 1 Bishop, New Criminal, supra note 17, at xviii.

55. Bishop, Principles (pt. 7), supra note 17, at 634–35; infra text accompanying note 139.

56. Thomas Grey prefers to say that the rules would be derived analytically from the principles. Describing reasoning as deductive, he says, implies that reasoning involves only formal inference and excludes broader forms of conceptual analysis. Grey, supra note 8, at 12 n.37. I agree with Grey but do not adopt his terminology here.

57. See, e.g., Bishop, Elements, supra note 49, at 93; 1 Bishop, New Marriage, supra note 14, at vi–viii, xxii–xxiv.

58. Bishop, Non-Contract, supra note 17, at 5, 6. Bishop's discussion was a stock argument in the nineteenth century. Despite its weakness to twentieth-century legalists, it must be noted that no less an intellect than Justice Holmes adopted a version of it, at least in his early career. See Holmes, supra note 46, at 95–96 (grounding the argument in public policy).

59. 1 Bishop, Criminal (2d ed.), supra note 17, at 25–26, 30, 32–33; Bishop, First, supra note 17, at 87–88.

60. 1 Bishop, Criminal Law (2d ed.), supra note 17, at 32.

61. Id. For other examples of Bishop's classical style of analysis of both private and public law issues, see id. at 69–70; 1 Bishop, New Marriage, supra note 14, at xxiii–xiv, 485–86; Bishop, Principles (pt. 4), supra note 17, at 312–14; Bishop, First, supra note 17, at 45–46, 86–103; Bishop, Thoughts, supra note 15, at 20; Bishop, Secession, supra note 15, at iv.

62. Bishop, First, supra note 17, at 88. See also Bishop, Elements, supra note 49, at 92; Bishop, Principles (pt. 2), supra note 17, at 186; Bishop, Principles (pt. 3), supra note 17, at 252; Bishop, Procedure, supra note 17, at 719; 2 Bishop, Women, supra note 17, at viii, 3–6; Bishop, Written, supra note 17, at 3. Bishop did not claim that all points were clear, and he thought treatise writers were obliged to show ambiguity when it was so. See, e.g., 1 Bishop, Procedure (3d ed.), supra note 17, at xiii–xiv.

63. Bishop, First, supra note 17, at 48. See also id. at 55; 1 Bishop, Procedure (3d ed.), supra note 17, at v.

64. See, e.g., Bishop, Non-Contract, supra note 17, at 35–36; Bishop, First, supra note 17, at 54; Bishop, System, supra note 15, at 4–7; Bishop, Elements, supra note 49, at 84.

65. Bishop, Non-Contract, supra note 17, at 35. See also, Bishop, System, supra note 15, at 4–7.

66. See, e.g., 1 Bishop, Procedure (3d ed.), supra note 17, at vi–vii, xv–xvi; 2 Bishop, Women, supra note 17, at ix; Bishop, Contracts, supra note 17, at ix.

67. See, e.g., Bishop, Marriage, supra note 14, at 35–36 (explicating sequence of succeeding chapters); 1–2 Bishop, Criminal, supra note 17, passim; 1–2 Bishop, Procedure, supra note 17, passim; Bishop, Non-Contract, supra note 17, passim.

68. See, e.g., Bishop, Marriage, supra note 14, at xiii–xiv; 2 Bishop, Women, supra note 17, at xii; 2 Bishop, New Marriage, supra note 14, at 804 (large index entry entitled “Not thought of” which consists of cases he explains differently from previous courts and scholars).

69. 1 Holmes-Pollock Letters 17 (Howe, M. ed. 1941) (letter of April 10, 1881)Google Scholar. See also supra text accompanying note 35 (Jabez Fox's similar criticism of John Chipman Gray).

70. See, e.g., Bishop, First, supra note 17, at 144; 1 Bishop, New Marriage, supra note 14, at iv; 1 Bishop, Criminal (4th ed.), supra note 17, at 20–21; Bishop, Principles (pt. 3), supra note 17, at 252–54.

71. 1 Bishop, New Criminal, supra note 17, at xxi. See also id. at xix; 1 Bishop, Procedure (3d ed.), supra note 17, at xiii; Bishop, Contracts, supra note 17, at ix; 1 Bishop, New Marriage, supra note 14, at xxvi, xxxiii.

72. See, e.g., 2 Bishop, Women, supra note 17, at ix; 1 Bishop, New Criminal, supra note 17, at xxi; 1 Bishop, New Procedure, supra note 17, at vi–vii; 1 Bishop, Criminal (4th ed.), supra note 17, at 20–21. In Bishop's view, his treatises “follow[] no opinion of any preceding writer or judge which an examination shows to be contrary to the reasonings and settled doctrines of the law, and especially [they] never introduce[] any opinion or reasoning of the author, but state[] instead the law's reasonings and conclusions as every judge will hold them on being duly enlightened from the bar. For [my treatises] recognize[] the fact that while the past lives in its translated wisdom and reason, its inert, dead forms are buried, and the dealings of practitioners and judges are exclusively with the present and future.” 1 Bishop, New Marriage, supra note 14, at iv.

73. See, e.g., Bishop, Contracts, supra note 17, at ix–xi; supra note 72. Also, in further contrast to modern jurists, who believe with Holmes that “[g]eneral propositions do not decide concrete cases,” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), Bishop held that he could so present “elementary doctrines … in such a manner as to render obvious their application in practice, and indicate the true rule where opinions differ.” Bishop, Contracts, supra note 17, at iii. See also Bishop, Thoughts, supra note 15, at 20; Bishop, First, supra note 17, at 90–92.

74. 1 Bishop, New Criminal, supra note 17, at xviii.

75. Bishop's thought is like a body of knowledge as described by postmodern philosophers. Postmodernists do not view bodies of knowledge as structured in a linear fashion, that is, in which complex matters are derived from simple foundations. Rather, postmodernists take a holistic approach to bodies of knowledge. They hold that “the truth of any one statement or proposition is a function … of the degree to which it ‘hangs together’ with everything else we take to be true.” Patterson, Dennis, Postmodernism/Feminism/Law, 11 Cornell L. Rev. 254, 270 (1992).Google Scholar Knowledge is less a logically structured mirror of reality than a field (or network, or web) of belief that interacts with real world experiences only at its periphery. As W. V. O. Quine says, knowledge “is a man-made fabric which impinges on experience only along the edges A conflict with experience at the periphery occasions readjustments in the interior of the field…. Reevaluation of some statements entails reevaluation of others, because of their logical interconnections…. But the total field is so underdetermined by … experience … that there is much latitude of choice as to what statements to reevaluate in light of any single contrary experience. No particular experiences are linked with any particular statements in the interior of the field, except indirectly through consideration of equilibrium affecting the field as a whole.” Patterson, supra, at 270–71 (quoting Willard Quine, Two Dogmas of Empiricism, in From a Logical Point of View 42–43 (1953). As a consequence, Quine concludes, “Any statement can be held true come what may, if we make drastic enough adjustments elsewhere in the system.” Id. at 271.

76. 1 Bishop, New Marriage, supra note 14, at xxv; 1 Bishop, Procedure, supra note 17, at 704–5.

77. See, e.g., 1 Bishop, Criminal, supra note 17, at 1–2; Bishop, Non-Contract, supra note 17, at 33–37; Bishop, Contracts, supra note 17, at 1–3. A belief in natural theology may have allowed Bishop to regard himself as a positive scholar despite his reliance on religious faith to structure his jurisprudence. See Bishop, Non-Contract, supra, at 33; Hovenkamp, supra note 40, at ix, 22–56.

78. Bishop, System, supra note 15, at 3–4.

79. 1 Bishop, Criminal (2d ed.), supra note 17, at 1–2. Significantly, the text accompanying this note is the sentence with which he opens the second edition of his well-received treatise, directed mainly to a professional audience.

80. Bishop, First, supra note 17, at 25, 47.

81. Bishop, Non-Contract, supra note 17, at 34. See also Bishop, Contracts, supra note 17, at 4–6; Bishop, Principles (pt. 2), supra note 17, at 185; Bishop, Principles (pt. 6), supra note 17, at 506; Bishop, System, supra note 15, at 4, 6, 18; Bishop, Elements, supra note 49, at 84–85. Bishop even argues that God's natural law is a true law in the sense that punishment follows its violation. See, e.g., 1 Bishop, Criminal (2d ed.), supra note 17, 4–5, 6, 10; Bishop, Strikes, supra note 15, at 25–26.

82. Bishop, First, supra note 17, at 25. See also id. at 25–26; 1 Bishop, Criminal, supra note 17, at 1.

83. See, e.g., Bishop, First, supra note 17, at 25–27, 47–49, 154; Bishop, Non-Contract, supra note 17, at 33–37; Bishop, Principles (pt. 6), supra note 17, at 506; supra text accompanying note 81. Religious and moral arguments premised upon what was called “the analogy of nature” were much in vogue in Bishop's day.

Bishop's position is not that national law needs to mirror classicism's precepts perfectly. Perfection, he says, is not to be expected in this world. The issue is whether national law generally does so. See, e.g., Bishop, First, supra, at 58–60.

84. Bishop, First, supra note 17, at 65. See also Bishop, Non-Contract, supra note 17, at 10; Bishop, Contracts, supra note 17, at x; 1 Bishop, Criminal (2d ed.), supra note 17, at 8; Bishop, Principles (pt. 2), supra note 17, at 185.

85. Bishop, First, supra note 17, at 9.

86. Id. at 9–12; 1 Bishop, Criminal (2d ed.), supra note 17, at 6.

87. Bishop, First, supra note 17, at 63–64; 1 Bishop, Women, supra note 17, at 674. In addition to these sources of law, Bishop argues that courts properly draw from contemporary scientific knowledge. See Bishop, System, supra note 15, at 4. Perhaps this is because Bishop thinks courts, whenever possible, should draw their decisions from the most probable examples of “truth” that bear on the problem.

88. See, e.g., 1 Bishop, Criminal (2d ed.), supra note 17, at 2; 1 Bishop, New Marriage, supra note 14, at xxvi; Bishop, First, supra note 17, at 20–21; 1 Bishop, Procedure, supra note 17, at 733.

89. See Bishop, First, supra note 17, at 66, 69–72. Bishop says that legislation violating God's fundamental law can be disregarded under the doctrine that the constitutional grant of legislative power to state and federal legislatures was not intended to encompass such authority. Bishop thus is able to conceive himself as a positivist who nonetheless finds natural law limits to legislative power. See Siegel, Lochner, supra note 25, at 52–61 (discussing the legislative power doctrine in antebellum constitutional discourse as the textual link for extra-textual principles).

Although Bishop never states that impious rules may not be contained in the Constitution, he does argue that constitutions are subject to the law of nations because the law of nations is what constitute the nation. See Bishop, Thoughts, supra note 15, at 19. By analogy, constitutions are subject to the clear law of God since God's law is the fundamental law that ordains the establishment of constitutions.

90. See 1 Bishop, Criminal Law (2d ed.), supra note 17, at 2; Bishop, Principles (pt. 3), supra note 17, at 252.

91. 1 Bishop, Criminal (2d ed.), supra note 17, at 2, 11. See also Bishop, First, supra note 17, at 66. Bishop also uses his view of the residual effect of natural law to support a number of specific doctrinal and jurisprudential positions. See 1 Bishop, Criminal (2d ed.), supra note 17, at 24–33, 69–70; Bishop, System, supra note 15, at 1–3, 10–11, 24–26.

91. Bishop, First, supra note 17 at 65–66. See also 1 Bishop, New Marriage, supra note 14, at xix. In this way, Bishop differentiates himself from eighteenth-century natural law jurists who devised legal systems by deductive elaboration from the first principles of morality. Bishop accords natural law reasoning a minor role. By and large, he claims to use Baconian empiricism to discover the law.

93. 1 Bishop, Criminal (2d ed.), supra note 17, at 2.

94. Id. It is unclear to me whether this remark should be read as limited by, or conflicting with, his assertions that rules clearly violating fundamental moral precepts are not law.

95. See, e.g., Bishop, First, supra note 17, at 77, 131, 298–300; 1 Bishop, Procedure, supra note 17, at 715.

96. Bishop, System, supra note 15, at 6.

97. Id. at 5. Bishop means “obvious and plain” in a literal sense. He claims that the principles revealed by patterns of case decisions are as apparent to the mind as colors are to the eye or sounds to the ear. Bishop, Contracts, supra note 17, at viii; Bishop, Elements, supra note 49, at 83.

98. Bishop, First, supra note 17, at 129–30. See also id. at 127–28.

99. See, e.g., Hovenkamp, supra note 40, at 79–95; Wharton, Francis, A Suggestion as to Causation 3–4 (1874)Google Scholar (legal scholar discussing God's ability to answer prayer).

100. This is Bishop's term, which he uses when asserting that Sir Edward Coke held the same position. See Bishop, First, supra note 17, at 128.

101. See, e.g., Porter, Noah, The Human Intellect With an Introduction Upon Psychology and the Soul 40–46 (4th ed. 1886) (1st ed. 1868)Google Scholar; Wayland, Francis, The Elements of Intellectual Philosophy 9–15 (1855)Google Scholar; Bowen, Francis, The Metaphysics of Sir William Hamilton 284–563 (1862)Google Scholar; Hedge, Levi, Elements of Logick 13–30 (1872 ed.) (1st ed. 1816)Google Scholar; 1 Reid, Thomas, The Works of Thomas Reid 221 (Hamilton, William ed., 7th ed. 1872) (repr. ed. 1992)Google Scholar; 1 Dugald Stewart, Works passim (1828). The cited texts are all leading American texts. Reid and Stewart were Scots but they were widely read in America.

There was, of course, great debate over the nomenclature of the mind's powers, over the classes of powers, and over the allocation of specific faculties among the classes. See, e.g., 2 Reid, supra, at 511 and accompanying note. There was even debate over whether the division of the mind into separate faculties was real or conventional. See Porter, supra, at 40–46.

102. Wayland, Francis, The Elements of Moral Science 45–69 (1877 ed.) (1st ed. 1835)Google Scholar; Porter, Noah, The Elements of Moral Science: Theoretical and Applied 133–39 (1885)Google Scholar. In general, see Wills, Gary, Inventing America: Jefferson's Declaration of Independence 193–206 (1978)Google Scholar; Grave, S. A., The Scottish Philosophy of Common Sense 224–57 (1960)Google Scholar; Meyer, Donald, The Instructed Conscience: The Shaping of the American National Ethic 43–50 (1972).Google Scholar

103. See Meyer, supra note 102, at 48–49. It is important to note that common sense philosophers typically agreed that although the moral faculty was a human endowment, final judgments on moral questions were to be left to the educated elite and not the masses. See, e.g., Bowen, supra note 101, at 502–3.

104. See, e.g., Wayland, supra note 102, at 44–57, 59; Wayland, supra note 101, at 12–13, 136–37, 173–74; Porter, supra note 102, 133–39, 258; Porter, supra note 101, at 479–86; 2 Reid, supra note 101, at 637; Meyer, supra note 102, at 41.

Noah Porter, a prominent late-nineteenth-century psychologist, denied the existence of the moral sense. But his position was that all the mind's powers were unified and no individual faculty had a separate existence. His “unitary faculty” thesis still allowed him to assert that the mind possessed intuitive insight into moral reality. See Porter, supra note 102, at 137–39; Porter, supra note 101, at 40–46, 49–50.

105. See, e.g., 1 Reid, supra note 101, at 99–103; Wayland, supra note 101, at 131–36, 160–61; Bowen, Francis, The Idea of Cause, 55 Princeton Rev. (pt. 1) 615, 615 (1879)Google Scholar, reprinted in Gleanings From a Literary Life 164, 164 (1880); Hovenkamp, supra note 40, at 3–18; Bozeman, supra note 40, at xii–xv, 3–31; Meyer, supra note 102, at 35–42; Wills, supra note 102, at 181–217; Howe, Daniel, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861, at 27–45 (1970)Google Scholar; Bryson, Gladys, Man and Society: the Scottish Inquiry of the Eighteenth Century 122–36 (1945)CrossRefGoogle Scholar; Grave, S. A., Common Sense, in 2 Encyclopedia of Philosophy 155–57 (1967)Google Scholar; Grave, S. A., Thomas Reid, in 7 Encyclopedia of Philosophy 118–21 (1967)Google Scholar; Grave, supra note 102, at 4, 226.

106. See, e.g., 1 Reid, supra note 101, at 220–21; Howe, supra note 105, at 27–28; Williams, Bernard, Descartes: The Project of Pure Enquiry 278–303 (pb. ed. 1978).Google Scholar

107. See, e.g., Williams, supra note 106, at 278–303; Williams, Bernard, René Descartes, 2 Encyclopedia of Philosophy 344, 350 (1967)Google Scholar; John Nelson, Innate Ideas, 4 id. 196, 197.

108. Locke, John, An Essay Concerning Human Understanding 65, 84, 105, 117, 131 (Nidditch, Peter ed. 1975) (1st ed. 1689).Google Scholar

109. See, e.g., Wayland, supra note 101, at 133–36 (discussing Hume's influence without naming him); Howe, supra note 105, at 28–29.

110. Berkeley's teaching made the world illusory; Hume's made God and the world not rationally knowable.

111. On Reid's and Stewart's respective roles, see Ahlstrom, Sydney, The Scottish Philosophy and American Theology, 24 Church History 257, 260–61 (1954)CrossRefGoogle Scholar; Bozeman, supra note 40, at 4–6. Scholars commonly focus on Reid as common sense realism's paradigmatic and most influential philosopher. Grave, supra note 102, at 5–10; Hov-Enkamp, supra note 40, at 7–9; Wills, supra note 102, at 181–206 (also focusing on Hutchinson). See also Ahlstrom, supra, 259–60 (tracing Scottish philosophy's earlier roots).

112. See 2 Reid, supra note 101, at 741–990; Mill, John Stuart, An Examination of Sir William Hamilton's Philosophy (1865).Google Scholar

113. Hovenkamp, supra note 40, at 3–21; Bozeman, supra note 40, at 3, 21–31; Howe, supra note 105, at 31–33; Meyer, supra note 102, at 3–50; May, Henry, The Enlightenment in America 62–64, 205–07, 348–49 (1976)Google Scholar; Sloan, Douglas, The Scottish Enlightenment and the American College Ideal (1971)Google Scholar; Smith, Wilson, Professors and Public Ethics: Studies of Northern Moral Philosophers Before The Civil War 36–41, 60–61, 187–89 (1956)Google Scholar; Ahlstrom, supra note 111; Noll, Mark, Common Sense Traditions and American Evangelical Thought, 37 Am. Quart. 216 (1985)CrossRefGoogle Scholar; Howe, supra note 105, at 29–68; Stevenson, Louise, Scholarly Means to Evangelical Ends: The new Haven Scholars and the Transformation of Higher Learning in America, 1830–1890, at 18 (1986).Google Scholar

114. Porter, supra note 101, at 40–46, 486, 497, 661–62; Porter, supra note 102, at 133–39. See also the volumes defending the Scottish Philosophy and refuting Mill by Princeton's president. McCosh, James, An Examination of Mr. J. S. Mill's Philosophy: Being a Defense of Fundamental Truth (1880)Google Scholar; McCosh, James, The Scottish Philosophy (1874).Google Scholar

115. The comments in this and the following paragraph are drawn from Hovenkamp, supra note 40, at 6–56; Bozeman, supra note 40, at xii–xv, 3–31; Meyer, supra note 102, at 35–42; Howe, supra note 105, at 27–31; Wills, supra note 102, at 175–206; Bryson, supra note 105, at 114–47; Grave, supra note 102, at 11–150; Wayland, supra note 101, at 137.

116. Introspection of one's internal world was thought to parallel observation of the external world, especially since observation was not yet taken to necessarily imply experimentation. It was the move to experimental science that also marked the shift in psychology from the study of mind to the study of brain, and from faculty psychology to experimental psychology. See Daston, Lorraine, The Theory of the Will versus the Science of the Mind, in The Problematic Science: Psychology in Nineteenth-Century Thought 88 (Woodward, W. & Ash, M. eds. 1982).Google Scholar

117. See, e.g., Wills, supra note 102, at 186–92; Bozeman, supra note 40, at 10, 21; Bowen, supra note 101, at 501–2; See Grave, supra note 102, at 147.

118. Ahlstrom, supra note 111, at 260.

119. See, e.g., Meyer, supra note 102, at 3–11, 28–31, 123–33.

120. He was raised in the “burned-over district” of New York, which witnessed the full force of Scottish-influenced evangelicalism. The preparatory schools he attended were similarly dominated by Scottish-influenced evangelicals. When he lived in the New Haven area, Yale was being reconstituted by religiously oriented scholars immersed in the common sense school. See Ashley, Franklin, Memories of Whitestone Seminary, Unita Daily Press (June 9, 1928)Google Scholar; Cross, Whitney, The Burned-Over District (1950)Google Scholar; Stevenson, supra note 113.

121. Bishop, First, supra note 17, at 303. See also Bishop, Principles (pt. 2), supra note 17, at 186; 1 Bishop, Criminal (2d ed.), supra note 17, at 35. It is clear that Bishop considered the moral sense a gift from God. See Bishop, Principles (pt. 3), supra note 17, at 252.

122. Bishop, Criminal (2d ed.), supra note 17, at 1 (quoted supra text accompanying note 79). See also Bishop, First, supra note 17, at 128–29, 154. Bishop's adherence to the two substance theory is but another way of stating his belief that God created a universe endowed with moral, as well as physical, law. Matter involved inert stuff and was governed by physical law; mind involved active beings capable of voluntary acts and was governed by moral law.

123. Bishop's usage comports with the nineteenth-century practice in which the term mind was used sometimes to refer to the human mind and sometimes to all nonphysical reality. 6 Oxford English Dictionary 461 (1933); Daston, supra note 116, at 91–96.

124. See, e.g., Bishop, Non-Contract, supra note 17, at 34; Bishop, First, supra note 17, at 25, 128–29; Bishop, Marriage, supra note 14, at xiii; Bishop, Marriage (3d ed.), supra note 14, at xviii. For an explication of the conditions that must be met for judges, to recognize legal truth, see supra text accompanying note 98.

125. Bishop, First, supra note 17, at 131; 1 Bishop, Criminal (2d ed.), supra note 17, at 36, 42; Bishop, Principles (pt. 2), supra note 17, at 186; infra text accompanying note 128.

126. Bishop, Non-Contract, supra note 17, at 33–35; Bishop, First, supra note 17, at 72.

127. Bishop, Non-Contract, supra note 17, at 33–35; Bishop, First, supra note 17, at 129. Yet Bishop opposed codification, fearing it would freeze the process of common law development. See, e.g., 1 Bishop, New Marriage, supra note 14, at xix–xx; Bishop, System, supra note 15, at 1–3, 10–11, 24–26; 1 Bishop, Procedure (3d ed.), supra note 17, at xiv–xv.

128. Bishop, Non-Contract, supra note 17, at 33–35. See also, 1 Bishop, Criminal (2d ed.), supra note 17, at 35–36, 38, 40–41; Bishop, Principles (pt. 2), supra note 17, at 186; Bishop, Principles (pt. 3), supra note 17, at 253; Bishop, Principles (pt. 5), supra note 17, at 382.

129. See supra note 92; Bishop, First, supra note 17, at 130. Bishop says the most frequent cause of bad decisions is inadequate argument by counsel. See 1 Bishop, Procedure, supra note 17, at 717–20; Bishop, Elements, supra note 49, at 93.

130. See, e.g., 1 Bishop, Procedure, supra note 17, at 714, 717–34; Bishop, First, supra note 17, at 311 (discussing improper influences on elected judges).

131. Bishop, First, supra note 17, at 307.

132. See, e.g., Bishop, First, supra note 17, at 77, 130–31, 292, 300, 307; 1 Bishop, Procedure, supra note 17, at 704–16. This is an aspect of his position that “a court is always bound by authority” but “authority does not consist of cases, but of principles.” Bishop, First, supra, at 77 (emphasis in the original).

133. Bishop, First, supra note 17, at 130, 131.

134. See, e.g., Bishop, First, supra note 17, at 130; 1 Bishop, Procedure, supra note 17, at 709, 714; Bishop, Contracts, supra note 17, at 4; Bishop, Principles (pt. 5), supra note 17, at 382; supra text accompanying notes 51–57.

135. See, e.g., 1 Bishop, Procedure, supra note 17, at 731; Bishop, Marriage, supra note 14, at xiii; Bishop, Principles (pt. 3), supra note 17, at 253–54; Bishop, Principles (pt. 4), supra note 17, at 314; Bishop, Principles (pt. 5), supra note 17, at 382; infra text accompanying notes 159–64. It should be noted that many twentieth-century jurists would agree with the secular reasons Bishop advances.

136. Bishop, First, supra note 17, at 120–22, 132, 153–54; supra text accompanying note 98.

137. 1 Bishop, New Criminal, supra note 17, at xxii.

138. Bishop, First, supra note 17, at 250. Bishop draws from these observations to justify the often-noted characteristic of classical scholars to reconcile cases according to principles never alluded to by the judges who decided the cases. See, e.g., 1 Bishop, Procedure, supra note 17, at 735, 737; supra text accompanying notes 35–36, 96.

139. 1 Bishop, New Marriage, supra note 14, at xxi. See also id. at iii–iv; 1 Bishop, Procedure (3d ed.), supra note 17, at viii–xi.

140. 1 Bishop, New Marriage, supra note 14, at xxi.

141. Bishop, First, supra note 17, at 84.

142. Bishop frequently describes scholarly determinations of legal principles as discoveries. See, e.g., Bishop, First, supra note 17, at 141, 303, 313; 1 Bishop, Criminal (2d ed.), supra note 17, at 41, 43–44.

143. 1 Bishop, New Marriage, supra note 14, at iv, xxvi, xxvii. That every judge will adopt the correct reason when it is articulated is an overstatement which Bishop himself recognizes. See, e.g., 1 Bishop, New Procedure, supra note 17, at xii–xiii.

144. Bishop, First, supra note 17, at 154, 307; 2 Bishop, Women, supra note 17, at viii.

145. Bishop's position superficially anticipates the views of Joseph Beale and Thomas Kuhn. See Beale, Joseph, A Treatise on the Conflict of Laws 150 (1916)Google Scholar; Samuels, Warren, Joseph Henry Beale's Lectures on Jurisprudence, 1909, 29 U. Miami L. Rev. 260, 289, 293 (1975)Google Scholar; Kuhn, Thomas, The Structure of Scientific Revolutions 174–210 (2d ed., pb. ed. 1970).Google Scholar

146. Bishop, Marriage, supra note 14, at xiii. Bishop continued to emphasize this view until his death. See, e.g., 1 Bishop, New Marriage, supra note 14, at v.

147. 1 Bishop, New Marriage, supra note 14, at v. By moral law, I mean a law of the realm of mind. See supra note 123.

148. 1 Bishop, New Criminal, supra note 17, at xxi (speaking of the “voice of the law”). See also 1 Bishop, New Marriage, supra note 14, at v–vi.

149. 1 Bishop, New Marriage, supra note 14, at vii. See also id. at v, xxviii.

150. See, e.g., Smith, supra note 113, at 3; Stevenson, supra note 113, at 1–13; Bozeman, supra note 40, at xiv–xv.

151. 1 Bishop, Procedure (3d ed.), supra note 17, at v; Bishop, supra note 1, at 322; 1 Bishop, New Procedure, supra note 17, at vi. See also Charles Bishop, supra note 12, at 7.

152. See, e.g., Bishop, Strikes, supra note 15, at 9–11; Bishop, Principles (pt. 1), supra note 17, at 60–61; Bishop, System, supra note 15, at 24–26.

153. Bishop, System, supra note 15, at 2, 3.

154. 1 Bishop, Procedure (3d ed.), supra note 17, at v–vi.

155. 1 Bishop, Procedure, supra note 17, at 733.

156. See Bishop, Non-Contract, supra note 17, at 33; Stevenson, supra note 113, at 67–102.

157. Porter, supra note 101, at 486 (emphasis in the original). Noah Porter was the doyen of nineteenth-century religiously informed scholars. The quoted text is the climax of his extensive investigation of the human intellect. See Stevenson, supra note 113, at 69.

158. Stevenson, supra note 113.

159. Horwitz, supra note 8, at 199. See also Frank, Jerome, Law and the Modern Mind 210–18 (1963 ed.) (1st ed. 1930).Google Scholar

160. See, e.g., Grey, supra note 8; Friedman, supra note 8, at 611–19.

161. See supra note 23.

162. Cf. Lapiana, William, Logic and Experience 110–47 (1994)Google Scholar (noting the Harvard faculty's positivism in analyzing the development of, and opposition to, case method teaching). By positivistic, I mean to emphasize that the Harvard professors' analyses focused exclusively on law's secular determinates, presenting only what they claimed to discover without any theological superstructure.

163. For an example of another theistic classical scholar, see Pattee, W., Essential Nature of Law (1909)Google Scholar. I call Bishop's orthodoxy theistic because of the extent to which he grounded it in beliefs about a transcendent Creator.

164. I use “positive” here to emphasize that Bishop presented himself as basing his conclusions on an inductive study of empirical phenomena.

165. See, e.g., Wharton, Francis, Commentaries on Law iii, 1–106 (1884)Google Scholar; 1 Blackstone, William, Commentaries on the Laws of England xviii, 96–103 (Hammond, William ed. 1890)Google Scholar, establishing a branch I call “historistic” classicism. Historistic classicism conceived each nation's law as evolutionary, as the product of the constant interaction of divinely implanted principles of racial inheritance and shifting historical conditions. Compared to Bishop's theistic classicism, historistic classicism was as religiously informed yet more historically contingent. However, historistic classicism's sense of historical contingency was neither random nor purposeless, as modern theories of social change require. Historism as a mode of late-nineteenth-century social theory is discussed in Siegel, Historism, supra note 39.

166. See, e.g., Friedman, supra note 8, at 611–19; Kennedy, supra note 25; Horwitz, supra note 8, at 9–31; Llewellyn, Karl, The Common Law Tradition 38–41, 73–74 (1960)Google Scholar; Pound, supra note 25 (which draws to a minor extent from public law decisions); Grey, supra note 8, at 33–35.

167. Langdell, Christopher Columbus, A Selection of Cases on the Law of Contracts vii–viii (2d ed. 1879).Google Scholar

168. Gray, Nature, supra note 38, at 287–88. Although Gray is well known for taking the position that law ultimately was the will of the sovereign, he also said the judges' sense of morality was the most frequent source of the rules that judges willed and the sovereign accepted. Id. at 294–96, 303.

169. Beale, supra note 145, at 150; Samuels, supra note 145, at 289, 293.

170. Bishop, Strikes, supra note 15, at 21–26 (advocating laissez-faire); supra text accompanying note 89 (indicating Bishop's approval of implied limitations and active review). See also Wharton, supra note 165, at 56–59, 422–25, 563–68, 679–91 (a religiously minded classical scholar advocating laissez-faire constitutionalism).

171. See, e.g., Friedman, supra note 8, at 617–20; Gordon, Robert, Legal Thought and Practice in the Age of American Enterprise, 1870–1920, in Professions and Professional Ideologies in America, 1730–1940, at 70, 72–97 (Geison, Gerald ed. 1983).Google Scholar

172. Dean Langdell, for example, in his discussion of the mailbox rule notoriously dismissed considerations of justice as irrelevant to proper analysis. Langdell, Christopher Columbus, A Summary of the Law of Contracts 20–21 (2d ed. 1880)Google Scholar, discussed infra text accompanying note 183. The word “acceptable” is Thomas Grey's and he discusses the secondary role acceptability played in Langdell's jurisprudence in Grey, supra note 8, at 10–15.

173. See, e.g., Friedman, supra note 8, at 617; Grey, supra note 8, at 24–28. Precedent might be incorrect; but so might the facts on which scientists relied since facts were themselves the product of fallible sense perception. See Grey, supra, at 24.

174. Langdell, supra note 172, at 21, discussed in Grey, supra note 8, at 4, 14. Grey notes that justice was not entirely irrelevant to classical scholars. Justice was relevant to the extent it was embodied in the legal system's principles. But it could not be used to directly justify particular rules or decisions. Id. at 13–15. Some Harvard scholars did acknowledge a place for morality in legal analysis, but they conceived morality more as opinion than as truth. See Ames, , Law and Morals, 22 Harv. L. Rev. 97, 106, 113 (1908)CrossRefGoogle Scholar; infra note 185.

175. See Cohen, Morris and Cohen, Felix, Readings in Jurisprudence and Legal Philosophy 678–89 (1951)Google Scholar (translating Rudolf von Jhering, In the Heaven of Legal Concepts).

176. Bishop, First, supra note 17, at 16; 1 Bishop, New Marriage, supra note 14, at xxxiii (“[t]he soul of the law is as absolute a thing as your soul, and your body would be fit only for the worms if the soul were fled”); supra text accompanying notes 88–91.

177. In his study of classicism, Thomas Grey considers moral sense psychology (and other forms of intuitionism) as a plausible candidate for the cornerstone of classical thought before rejecting it in favor of stare decisis. Grey says classical scholars rejected intuitionism as their ultimate touchstone because they eschewed theories “permitting direct decision of cases from the facts.” Grey, supra note 8, at 22. Grey's point is that classical scholars believed that stare decisis, by establishing precedent as authoritative, allowed jurists to derive legal principles from a fund of observable facts analogous to the data underlying natural science. Id. at 24. Yet my analysis of Bishop's metaphysics shows that his belief in moral-sense psychology allowed him to believe that moral intuitionism functioned to provide a fund of independently authoritative data from which to induce underlying principles. Bishop thought the promptings of the moral sense were just as much a matter of sense perception as the eyes' appreciation of the colors of the rainbow or the ears' noticing the sound of thunder. See, e.g., Bishop, Contracts, supra note 17, at viii; Bishop, System, supra note 15, at 5; Bishop, Elements, supra note 49, at 83.

178. See, e.g., Bishop, First, supra note 17, at 298; 1 Bishop, Procedure, supra note 17, at 714–16.

179. See, e.g., Bishop, First, supra note 17, at 16, 77, 131, 252–54, 292–300; 1 Bishop, Criminal (2d ed.), supra note 17, at 2, 45–46; 1 Bishop, New Marriage, supra note 14, at ix, xx; 1 Bishop, Procedure, supra note 17, at 714; 1 Bishop, Criminal (4th ed.), supra note 17, at 20–21; supra text accompanying note 89.

180. 1 Bishop, Procedure, supra note 17, at 714. See also Bishop, First, supra note 17, at 294.

181. 1 Bishop, Criminal (4th ed.), supra note 17, at 20, 21.

182. See Langdell, supra note 172, at 15–22; Bishop, Contracts, supra note 17, at 203–7.

183. Langdell, supra note 172, at 20–21.

184. Because Langdell does not discuss the validity of wagering Contracts, a direct contrast with Bishop's discussion of wagers is impossible. Bishop, however, does discuss the mailbox rule and supports the opposite result from Langdell. Of relevance to my analysis is not that Bishop supports the contrary rule, but that he finds his preferred outcome “not only sustained by the decisions; but [by] the nature of things.” Bishop, Contracts, supra note 17, at 124 n.3. In Bishop's analysis the laws of logic dictate the correct mailbox rule. Thus common law precedent (as usual) is coincident with the true rule; it has recognized, not constituted, the rule.

185. Even if legal change resulted from changes in the judges' or the legal professions' moral views, as John Chipman Gray and John Henry Beale respectively maintained, see supra text accompanying notes 168–69, there was no moral science indicating which views were correct and no guarantee that legal change was morally progressive. See Gray, Nature, supra note 38, at 305–7.

186. Bishop, System, supra note 15, at 5, 6.