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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
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JAMES GORDLEY*
The State's Private Law and Legal Academia
The work of Western jurists has traditionally depended on a
symbiotic relationship between the law as promulgated by state au
thority and law as understood by jurists. Starting with the law
laid down by state authority, the jurists have arrived at more
general rules, doctrines and principles which were reflected, later
on, in the law that state authorities laid down. During the late
natural law era, that relationship was undermined when rationalists
took as their starting point, not the law in force, but supposedly
self-evident princi ples from which they thought the law could be
deduced. With the rise of positivism in the nineteenth century,
jurists took the law in force as their starting point, but they
tried to interpret it with the deductive and conceptualistic
methods of the rationalists. They thus became vul nerable to
critics who pointed out why these methods would not work, but who,
nevertheless, did not distinguish an attack on these methods from
an attack on the work jurists traditionally have done.
I. THE TRADITION
Intellectual traditions have a beginning in time. Western philos
ophy began with the Greeks, modern physics with Galileo and Newton,
and modern economics with Adam Smith. Similarly, one can date the
Western legal tradition to the Romans, and in particular, to the
work of the Roman jurists. The tradition they founded has en dured
for centuries. Today, I believe, it is threatened.
At the core of the tradition is a symbiotic relationship between
the law as promulgated by state authority and the law as understood
by jurists. Traditionally, the starting point for jurists has been
the law laid down by state authority. Their goal has been to
understand and explain that law. In doing so, jurists have sought
more general rules, doctrines, and principles which the state
authorities who promulgated the law did not have explicitly in
mind. The authorities have then drawn upon their work to administer
justice.
I hope the word "state" is not misleading. Public authority has
taken many forms, and "states" in the modern sense are a new phe
nomenon. By state, I will mean any public authority that
administers
639
* W.R. Irby Distinguished University Professor, Tulane Law
School.
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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].
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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).
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642 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
correct method is to explore its implications. For example, when
Rich ard Posner discusses American rules of private law, his sole
concern is whether economic principles can explain them.8 According
to my friend and former colleague Robert Cooter, while the law
always had the goal of shaping human conduct, from the time of the
Romans un til the rise of the law and economics movement, the
results were hap hazard. Now they can be established
scientifically.9 Neither writer seems to think that jurists have
had an intellectually respectable method of their own, one worthy
of attention even after the advent of the economic approach. I have
the same sense when I read much that is written about public law.
One gets the impression that if only peo ple long ago had the right
political theory or the right political agenda or the right
economic principles, the world would never have needed jurists, or
at least not those who do what jurists have traditionally done.
In continental Europe, the symbiotic relationship seems to be
threatened in the opposite way. The law declared by state
authorities is becoming, not merely a starting point, but an ending
point. From the time of Toullier to that of Planiol, the French
wrote long multi volume treatises filled mostly with the author's
reflections. Now they tend to write short works filled mostly with
cases and code provisions and punctuated by occasional reflections.
German jurists once wrote short but profound treatises like those
of Puchta and Windscheid which attempted to explain the
foundational principles of private law. Now, many German academics
write contributions to long multi volume treatises, each volume
divided into a multitude of subsec tions, and each subsection
written by a different author. Each subsec tion is a summary of
code provisions and case law, punctuated by Stichworte. The Einheit
der Rechtsordung is either left to take care of itself or is
handled by cross-references. The short French treatises tell a
student what he should know to pass a course. The longer Ger
man ones tell the reader everything that the authors and their
assist ants know. But neither goes much distance from the law as it
has been declared by legislatures and judges. That law has become
an ending point.
More recently, the ending point has become the law that might be
declared some day by a hypothetical authority. Dozens of scholars
are working on a code-like document called the "Common Frame of
Reference." Its provisions are to be based on the existing codes
and case law of member states of the European Union. Synthesizing
so much legal material would seem to be an enormous intellectual
pro ject. It took the Germans decades to draft their civil code,
even though they built on earlier decades of work by German jurists
who
8. Richard Posner, Economic Analysis of Law (7th ed. 2007). 9.
Robert Cooter & Thomas Ulen, Law and Economics (4th ed.
2004).
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 643
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).
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644 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
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.
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 645
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).
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646 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
Pothier17 (1699-1772), whose work later shaped the French Civil
Code. Other writers approached law in a Cartesian-fashion. The most
notable example was Christian Wolff (1679-1754). His treatises were
a series of definitions supposedly connected to conclusions by
logical deduction.18 As in mathematics, the conclusions were
supposed to fol low with deductive certainty. Many people in
thel8th century thought that Wolff had succeeded. He acquired an
immense reputa tion, especially in his native Germany. For many,
his work epito
mized what it meant to write about "natural law." For natural
lawyers such as Wolff, the Roman texts ceased to
matter. Nevertheless, lawyers and judges needed books that would
explain the law in force. In France, this need could be met by
writers such as Pothier and Domat who cared about natural law but
never theless took the law in force seriously. In Germany and the
Nether lands, it was met, increasingly, by works such as Samuel
Stryk's Usus modernus pandectarum (1690 ff.). The authors of these
works made no use of the writings of the natural lawyers, to whom
they abandoned the intellectual high ground. Nor were these authors
as concerned as jurists once were with determining the scope of
each Roman text, with reconciling conflicts among texts, and with
identify ing rule or doctrines implicit in texts. Perhaps they
thought that,
with the high ground abandoned, their task was the practical one
of exposition. Perhaps they thought that little of importance could
be learned from a close reading of the texts and prolonged
reflection on their meaning.
In any event, they wrote as though their job were to describe
the law in force in a manner that judges and lawyers could digest.
Their treatises consist of simplified propositions about Roman law
accom panied by citations to the Roman texts. Sometimes these
propositions convey, in a general way, what one might make of the
texts, without asking how the differences among them could be
reconciled. Some times they restate conclusions that had been
familiar for centuries
without examining their foundation in the texts. Sometimes they
state what courts do in practice without explaining what courts
should do.
For Wolff, the law found in Roman texts or court practice was no
longer a starting point. For Stryk and his successors, it had
become an ending point. Thus the symbiotic relationship between the
work of jurists and the law in force was broken, and in the same
ways that we have seen in the writing of our contemporaries. If the
trend had con tinued until all those concerned with the larger
principles neglected
17. See, e.g., Robert Pothier, Trait? des obligations in 2 M.
Bugnet, ed., Oeuvres de Pothier (2d ed. 1861).
18. E.g., Christian Wolff, Ius naturae methodo scientifica
pertractatum
(1740-48).
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 647
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.
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648 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
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).
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 649
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).
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650 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
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).
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 651
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
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652 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56
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,
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2008] STATE S PRIVATE LAW AND LEGAL ACADEMIA 653
they undermine any form of the symbiotic relationship on which
the work of jurists has depended. Few now believe that the rule of
law is an illusion or merely a tool of the powerful. Yet a
dwindling number are committed to probing the law in force in
search of more basic principles, as jurists traditionally have
done. That sort of work has been discredited-if we are right for
the wrong reasons. Nineteenth century jurists tried to escape a
rationalist version of natural law without escaping its premises.
They were attacked by critics who themselves accepted these
premises without seeing any need to defend or explain them. The
real illusion is that their attack has much to do with the
traditional work of ju rists. Once we realize that it does not,
perhaps we can get back to work.
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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