Resonses to Karl Llewellyn

As Karl Llewellyn opens his essay, “A Realistic Jurisprudence – The Next Step” he catches the reader by surprise. The author plants his feet firmly and declares that no definition of the law (which happens to be his subject) will be forthcoming. At first blush, one wonders if this isn’t an easy out for what might otherwise be a tough and controversial task. It turns out, however, that his rational runs much deeper. Law, in his view, is not a monolith so much as a “heterogeneous multitude of engines.” It is natural, he admits, to take the world in, impose categories on it, and demand that order exists even perhaps where it does not. In some cases, concepts and categories are useful if not unavoidable but they also have the uncanny ability to distort whatever they’re applied to.

According to Llewellyn, it is the cult of words and legal phraseology (the tool chest of the legal theorist) that inadvertently undermines the integrity of the law. Legal theorists like to focus on the idea of substantive rules and rights. Both, however, make the law less clear not more. The widely bandied term “this is the rule” is one such instance. In Llewellyn view, that term might mean any one number of things from “this is what people agree the law is” to “this what courts have said it is.” By stressing one element over another, any one of these formulations might lead to radically different judicial outcomes; in the first, by emphasizing the perceptions of the layman and in the second, by emphasizing legal precedent. With respect to substantive rights, the concern is that the jurist or theorist subconsciously slips between descriptive rules (how something is) to prescriptive ones (how it ought to be). Prescriptive rules are of special concern to Llewellyn because they introduce value judgments that conflate the legal with the moral and break down the clarity and soundness of the law.

What’s to be done? Rather than focusing on definitions or trying to forge universals so that one law is applicable under any number of circumstances, Llewellyn states that the focus of law ought to be “…on the area of contact between judicial behavior and the behavior of the ‘governed’.” Under this paradigm law becomes the study of social interactions, emphasizing observations about behavior over words and definitions. As Llewellyn puts it, “Real rules,” then, if I had my way with words, would by legal scientist be called the practices of the courts, and not “rules” at all. And statements of “rights’ would be statements of likelihood that in a given situation a certain type of court action loomed in the offing”(p. 30). For Llewellyn, this new paradigm will demystify law and place it on a solid edifice.

Llewellyn might be right, I don’t know. It is true, I think, that all to often a jurist conflates the legal with the moral. And the entire structure of law suffers from rules that are not fixed and predictable. In contemporary parlance, judicial activism captures one aspect of problem. As regards the abandonment of any reference to “rules” and “rights,” the point is thought provoking but the picture Llewellyn paints of an alternative based on the “point of contact between judges and governed” seems esoteric; quite heavy on theory but light on examples. So I can neither discard nor embrace his position. The essay is worth another go through; I’ll probably do so later in the semester when I have a better idea of the relevant issues.