Star-spangled thinking on the fabric of a nation

Patterns of American Jurisprudence
June 21, 1996

Unlike its European counterpart, United States jurisprudence has long been unselfconsciously fascinated by itself. It has been characterised by frequent and often vitriolic clashes between its personalities, and has spawned a cottage industry producing acc- ounts of its history. It is perhaps ironic, then, that the first comprehensive account of the history of US jurisprudence has been written by a British academic.

Neil Duxbury's book is thoroughly researched and well-written. He seeks to show that, contrary to the views of most commentators, US jurisprudence cannot be characterised in terms of pendulum swings from formalism to realism, back to formalism, and then again to realism.

Unfortunately Duxbury undercuts his argument by not adequately defining formalism and realism. In the first chapter, he unconvincingly confines legal formalism to the Langdellian casebook method of teaching and the Supreme Court's support of laissez-faire economics. Most of the chapter is then devoted to arguing that Oliver Wendell Holmes and the other so-called "protorealists", who inspired the "real" realists, were not very radical and were in fact formalists.

In the next chapter, Duxbury provides a useful discussion of some of the important influences on and themes in American realism. He argues that the realists were either inconsistent in their views or lacked the courage of their convictions in matters such as utilising the social sciences and replacing the case-book method of teaching. However, uninitiated readers are unlikely to obtain an overview of realism sufficiently detailed to enable them to evaluate Duxbury's arguments. Nor will they fully appreciate the worldwide impact of realism. Notwithstanding Duxbury's strictures, realism brought about a seachange in attitudes to adjudication, to the relationship between law and society, and ushered in multidisciplinarian and contextual approaches to law.

In this regard, the remaining four chapters are far more satisfactory. The first of these deals with the policy science of Harold Lasswell and Myres Smith Dougal, who sought to train lawyers to become policy makers committed to the values of US democracy. However, the amount of space devoted to this movement is somewhat ironic given that Duxbury dismisses it as having had minimal impact. Chapter four looks at process jurisprudence - a movement which sees law as being a rational process premised upon universal underlying principles. My only specific criticisms of this chapter are that the detailed discussion of writers with broadly similar views becomes repetitive and that the considerable impact of the ideas of Ronald Dworkin on contemporary jurisprudence is severely underplayed.

The final two chapters assess two theories at opposite ends of the political spectrum. The law and economics movement seeks to apply the economic theories of neoliberalism to the analysis of law, whereas critical legal studies involves a combination of American realism and a variety of left-leaning theories on law and society. The book ends with a brief, one-sentence questioning of the future trajectory of American jurisprudence, rather than a more evaluative concluding chapter.

This ending illustrates the book's main weakness: the assumption that an accurate and highly detailed description of the patterns of US jurisprudence is more important than, firstly, an evaluation of the persuasiveness of the various legal theories and, secondly, their impact on the actual practice of law, on legal education and worldwide jurisprudence. At times, some of these concerns - particularly the first - are addressed and addressed well. But in general the book at over 500 pages is made unduly long by concentrating on less important issues.

Thus, while the most commendable aspect of Duxbury's book is his intelligent exploration of the various nonlegal intellectual movements and other factors which influenced US jurisprudence, at times he becomes overly embroiled in the internal debates in these various intellectual disciplines. Less justifiable is his excessive curiosity about issues which most British legal academics would regard as matters of conference gossip.

Moreover, throughout the book, Duxbury seems to go to extreme lengths in supporting his main argument regarding the patterns of US jurisprudence and in challenging existing views on other issues. This is most obvious in relation to the realists - proto- and otherwise. For example, Duxbury was so concerned to show that various influential antiformalist statements of the protorealists were taken out of context that he himself ignores other evidence of their antiformalism.

Where, for example, was Holmes's "Bad Man"? In any case, the fact that these proto-realists were formalist as well as antiformalist does not make their antiformalist opinions any less radical. The description of the main ideas of the realists is even more misleading. Llewellyn's later, more sophisticated ideas on adjudication and law's function are ignored. Jerome Frank's still unduly neglected fact-scepticism is given equal billing with some of his more bizarre, yet unimportant, ideas, such as his argument that the formalist's desire for legal certainty echoes a child's desire for a father figure. Duxbury seems almost more concerned with pointing out that Frank was guilty of formalism and similar childish thought-ways than with assessing the importance of Frank's ideas on adjudication and fact-finding.

Ultimately, one wonders whether it was worth expending so much energy in challenging the characterisation of US jurisprudence in terms of pendulum swings between formalism and realism. It is unlikely that intellectual development in any country or any discipline is going to be so neatly characterisable, yet in very broad terms the pendulum idea is not misleading, except perhaps in the case of law and economics which seems to lie outside the formalism/realism dichotomy.

Nevertheless the book will be of much interest and use to those already familiar with US jurisprudence. Its encyclopedic coverage make it essential reading for those requiring more information than that found in traditional textbooks.

Donald Nicolson is lecturer in law, University of Bristol.

Patterns of American Jurisprudence

Author - Neil Duxbury
ISBN - 0 19 825850 X
Publisher - Clarendon Press, Oxford
Price - £40.00
Pages - 520

You've reached your article limit.

Register to continue

Registration is free and only takes a moment. Once registered you can read a total of 3 articles each month, plus:

  • Sign up for the editor's highlights
  • Receive World University Rankings news first
  • Get job alerts, shortlist jobs and save job searches
  • Participate in reader discussions and post comments
Register

Have your say

Log in or register to post comments