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4 - On the Instrumental View of Law in American Legal Culture

Published online by Cambridge University Press:  31 July 2009

By
Brian Z. Tamanaha
Edited by
Francis J. Mootz III
Francis J. Mootz III
Affiliation:
University of the Pacific, California
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Summary

Karl Llewellyn's “On Philosophy in American Law” was not a philosophical essay but rather a chronological survey of the impact of philosophical ideas about law in American legal culture since the founding. Llewellyn (1934: 206) made this clear at the outset of his essay: “Thus what is here before the telescope is the changing array not of verbalized philosophies, but of philosophies-in-action as the history of law in these United States has gone its way. What those philosophies were, what needs they served – and whose. I am not so much concerned with the philosophers themselves, with whom indeed my acquaintance is but scanty. I am concerned with philosophy-in-action, with implicit philosophy, with those premises, albeit inarticulate and in fact unthought, which yet make coherence out of a multiplicity of single ways of doing.” It is important to consider the impact of philosophical ideas in this sense, Llewellyn wrote, because “once a philosophy has been established in the habits and attitudes of any person, it has effects” (Llewellyn 1934: 206).

An underlying theme of Llewellyn's survey is that philosophical ideas have time and again been enlisted in law to serve the powers that be. His sketch can be conveyed in a few strokes. Matters started off well enough at the founding and for several subsequent generations, Llewellyn suggests, during which judging was infused with ideas about natural law and right reason.

Type
Chapter
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On Philosophy in American Law , pp. 27 - 34
Publisher: Cambridge University Press
Print publication year: 2009

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References

Bix, Brian. Jurisprudence: Theory and Context. Durham, NC: Carolina Academic Press, 2004.Google Scholar
Cook, Walter Wheeler. “Scientific Method and the Law,” A.B.A. J. 13.6 (1927): 303–9.Google Scholar
Cramton, Roger C. “The Ordinary Religion of the Law School Classroom,” J. Legal Educ. 29.3 (1978): 247–63.Google Scholar
Gordon, Robert W. “The Independence of Lawyers,” B.U. L. Rev. 68.1 (1988): 1–83.Google Scholar
Holmes, Oliver Wendell. “Law in Science and Science in Law,” Harv. L. Rev. 12.7 (1899): 443–63.CrossRefGoogle Scholar
Holmes, Oliver Wendell. “The Path of the Law,” Harv. L. Rev. 10.8 (1897): 457–78.Google Scholar
Kennedy, Walter B. “Pragmatism as a Philosophy of Law,” Marq. L. Rev. 9.2 (1925): 63–77.Google Scholar
Leff, Arthur Allen. “Unspeakable Ethics, Unnatural Law,” Duke L.J. 1979.6 (1979): 1229–49.CrossRefGoogle Scholar
Llewellyn, Karl N.The Bramble Bush: On Our Law and Its Study. Dobbs Ferry, NY: Oceana Press, 1960.Google Scholar
Llewellyn, Karl N. “On Philosophy in American Law,” U. Pa. L. Rev. 82.3 (1934): 205–12.Google Scholar
Llewellyn, Karl N. “Some Realism about Realism – Responding to Dean Pound.” Harv. L. Rev. 44.8 (1931): 1222–64.CrossRefGoogle Scholar
Moore, Michael S. “The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism.” Cornell L. Rev. 69.5 (1984): 988–1013.Google Scholar
Pound, Roscoe. “Mechanical Jurisprudence.” Colum. L. Rev. 8.8 (1908): 605–23.CrossRefGoogle Scholar
Purcell, Edmund. The Crisis of Democratic Theory: Scientific Natural and the Problem of Value. Lexington: Univ. of Kentucky Press, 1973.Google Scholar
Raz, Joseph. The Authority of Law. Oxford, UK: Clarendon Press, 1979.Google Scholar
Stoddard, Thomas R. “Bleeding Heart: Reflections on Using the Law to Make Social Change.” N.Y.U. L. Rev. 72.5 (1997): 967–91.Google Scholar
Summers, Robert. Instrumentalism and American Legal Theory. Ithaca, NY: Cornell Univ. Press, 1982.Google Scholar
Tamanaha, Brian Z.Law as a Means to an End: Threat to the Rule of Law. New York: Cambridge Univ. Press, 2006.CrossRefGoogle Scholar
White, G. Edward. “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change.” Va. L. Rev. 59.2 (1973): 279–302.CrossRefGoogle Scholar
Woodward, Calvin. “The Limits of Legal Realism: An Historical Perspective.” Va. L. Rev. 54.4 (1968): 689–739.CrossRefGoogle Scholar

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