gordley - the state's private law.pdf

The State's Private Law and Legal AcademiaAuthor(s): James GordleySource: The American Journal of Comparative Law, Vol. 56, No. 3, Special Symposium Issue:"Beyond the State: Rethinking Private Law" (Summer, 2008), pp. 639-653Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/20454634 .Accessed: 02/09/2014 19:51

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Society of Comparative Law is collaborating with JSTOR to digitize, preserve and extend access toThe American Journal of Comparative Law.

http://www.jstor.org

This content downloaded from 128.122.149.145 on Tue, 2 Sep 2014 19:51:20 PMAll use subject to JSTOR Terms and Conditions

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).



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).



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.


Article Contentsp. 639p. 640p. 641p. 642p. 643p. 644p. 645p. 646p. 647p. 648p. 649p. 650p. 651p. 652p. 653

Issue Table of ContentsThe American Journal of Comparative Law, Vol. 56, No. 3, Special Symposium Issue: "Beyond the State: Rethinking Private Law" (Summer, 2008), pp. 527-846Front MatterBeyond the State? Rethinking Private Law: Introduction to the Issue [pp. 527-539]RelationsPrivate Law without the State and during Its Formation [pp. 541-565]The State as a Foundation of Private Law Reasoning [pp. 567-604]The Anti-Network: Private Global Governance, Legal Knowledge, and the Legitimacy of the State [pp. 605-630]The Anti-Network. A Comment on Annelise Riles [pp. 631-638]

ActorsThe State's Private Law and Legal Academia [pp. 639-653]Taking the Institutional Context Seriously. A Comment on James Gordley [pp. 655-665]The Science of Private Law and the State in Nineteenth Century Germany [pp. 667-689]Public Law, Private Law, and Legal Science [pp. 691-702]The State's Private Law and the Economy: Commercial Law as an Amalgam of Public and Private Rule-Making [pp. 703-721]Contract Regulation, with and without the State: Ruminations on Rules and Their Sources. A Comment on Jrgen Basedow [pp. 723-742]

ValuesPrivate Law beyond the Democratic Order? On the Legitimatory Problem of Private Law "Beyond the State" [pp. 743-767]Law after the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law [pp. 769-808]The Limited Autonomy of Private Law [pp. 809-833]State Policies in Private Law? A Comment on Hanoch Dagan [pp. 835-843]

Books Received [pp. 845-845]Back Matter

gordley - the state's private law.pdf

Documents

states private law

private law summer

work jurists

state authority

work of western jurists

late natural law era

state authorities

roman jurists