In this Article, the author reflects on the limitations upon prevalent modes of formulating and using legal theories. The author\u27s analysis is predominantly contextual, focusing on the impact of legal  future shock.  Other limitations stem from the author\u27s reflections on  living  theories, the linkage between theory and ideology, and the need for humanistic legal theory

Folsom, Ralph H.

English

University of San Diego

Reflections After TeachingAnglo-American Legal Theory*RALPH H. FOLSOM**These reflections concern limitations upon prevalent modes offormulating and using legal theories. The analysis is predomi-nantly contextual, focusing on the impact of legal 'future shock."Other limitations stem from the author's reflections on "living"theories, the linkage between theory and ideology, and the needfor humanistic legal theory.PROLOGUEScene:Law School Commencement ExercisesActors:The High Priest (Dean)The Guest Preacher (Jurist)The Grateful Graduates (Students)The Chorus (Lawyers, including Law Professors)The Proud Parents (People)* The late Maitre Pierre Azard, to whom this volume is dedicated, was aman of high ideals and worldly outlook. My considerable contact with himenriched me with cross-cultural understanding and aspirations. I am honored todedicate those reflections to his memory.** Professor of Law, University of San Diego. A.B., Princeton University; J.D.,Yale Law School; LL.M., London School of Economics and Political Science. Lec-turer in Law, University of Warwick Law School (1973-75); sometime member ofthe faculty, Institute on International and Comparative Law, University of SanDiego. Professor Folsom wishes to thank the many Warwick and USD colleagueswho read earlier drafts of these reflections and commented thereon.March 1982 Vol. 19 No. 2The Guest Preacher:"6... and so my friends, it is an appropriate moment to recalland close with the guiding words of Mr. Justice Holmes: 'The lifeof the law has not been logic but experience.'The High Priest:"Thank you Guest Preacher. Let us now award the diplo-mas .... On each Grateful Graduate I hereby confer the degreeof 'Juris Doctor.'"The Chorus (enlarged):More applause.The Proud Parents:Aside quietly to the Grateful Graduates: "What does Juris'mean?"Grateful Graduates:"Oh, maybe it has something to do with jurisprudence-youknow, legal theory and all that 'academic stuff."'Proud Parents:"We see. Just thought it mighe have something to do with thelaw of life being experience as the Guest Preacher said."Chorus:• • ... ................*.*•  .... ........ .o.•... ... ................................. ...From 1973 to 1975, Professor William Twining of the Universityof Warwick Law School in Coventry, England and I co-taught acomparative course in Anglo-American legal theory. The coursesought to introduce students to main currents of Anglo-Americanjurisprudence through the writings of Bentham, Austin, Hart,Pound, Fuller, Llewellyn, Lasswell, McDougal and others. Thesereflections are the product of that teaching experience.'The purpose of these reflections is to present an intentionallyargumentative "position paper" which in its broadest scope isabout the limits of theory. More particularly, these reflections fo-cus on some limits on legal theory caused by the fact of signifi-cant and swift cultural and societal change. In a sense, this is an1. See generally Folsom & Roberts, The Warwick Story: Being Led Down theContextual Path of the Law, 30 . LEGAL EDUC. 166 (1979).[voL. 19: 289, 1982] Reflections after TeachingSAN DIEGO LAW REVIEWexploratory environmental impact statement. As the intellectualobserver or reporter, I do not claim to be either comprehensive(for legal theory covers vast fields of learning) or authoritative(because, as a matter of faith, I don't believe there is a final wordon anything, except possibly death). I do claim to discern insome legal theorists a certain absence of sensitivity to or aware-ness of the twentieth-century environment in which they workand the relevance of that environment to their studies. I alsothink that all who deal with the law, especially law professors, aretheorists at one point or another.Let's start with the word "theory." I perceive theory to be thearticulation of general or abstract principles, concepts or analyseswhich are the product of contemplation or speculation about agiven or assumed set of "facts." Facts, as observational catego-ries, are "theories" in their own right. Put crudely, then, theory ismost often a by-product of the collision of intellect and life. Whatresults is a model or hypothesis offered by theorists as a rational,simplifying explanation of a pre-selected "factual" reality. Theo-ries come in all sizes, shapes and packages. Some are grand theo-ries purporting to explain vastly complex human or naturalphenomena. Others are finite with narrow areas of concern andobjectives. Still others are middling or second order theories,neither grand or finite. But no matter how you subdivide orotherwise label theories, they remain articulated by-products ofintellect and pre-selected "realities." Whether you consider legaltheory to be a branch of social theory or a branch of "natural"theory, or whether you consider theories of law to be distinguish-able from theories about law, is immaterial to this conclusion. Inthis fundamental regard, legal theory is no different from theoryin general.I am concerned about limitations upon prevalent modes of for-mulating and using legal theories. My line of analysis is predomi-nantly contextual. Legal thinkers sometimes fail to acknowledgeand account for "future shock" and other important considera-tions in the formulation and use of legal theory. By "futureshock" I mean the acceleration in the rate of cultural and societalchange (including legal change) which we are all experiencingand which has been so well described and publicized by AlvinToffler.22. See A. ToFFLER, FUTURE SHOCK (1970).Future Shock and TheoryFuture shock has a number of effects on theory in general andlegal theory in particular which are often overlooked:(1) Future shock undermines the rational process of theory formulationby rendering "facts" exceedingly transient;(2) Future shock shortens the useful life-span of a well articulated the-ory; and(3) Future shock increases the inherent tendencies of theorists to "buildcastles in the sky" instead of on earth.3Take, for example, theories of marketplace competition thatabound in the field of antitrust, which happens to be my speciali-zation. There are extensively developed theories of "perfect"competition, 4 "monopolistic" competition,5 "destructive" competi-tion,6 "workable" or "effective" competition7 and "non-distorted"competition,8 to name the most familiar. All of these theories rep-resent intellectual efforts to grapple with economic and legal "re-alities" in the field of antitrust. As simplifying concepts in acomplex area of human behavior, they have subjective value asintellectual exercises for theorists. They also have practical, moreobjectively measurable social utility. These theories demonstratevisible utility when and if, for example, they (1) impart direction,clarity and understanding to immediate participants in legalprocesses, including students, practitioners and law professors insearch of road maps through the maze called law, or (2) assist incommunication about legal affairs, or (3) enable laypeople toidentify with and understand the law and legal processes.I would argue, however, that the utility of these theories and alllegal theory is both easily overestimated and deceptive. Why? Inpart because future shock has not been given its due. In all ofthese theories I see a search for lasting absolutes in a world ofchange; I see decay in intellectual castles from the bottom up.Viewed collectively, I see a plurality of theories which moreclosely resemble the economic, legal and human realities of anti-trust. This plurality thus has greater utility than any individual3. See generally L. WITTGENSTEIN, PAILOSoPHICAL INVESTIGATIONS (1953).4. I am referring to the economists' dream model of marketplace competitionfound in any standard text. E.g., P. SAMuEIoN, EcoNomics (10th ed. 1976).5. See, e.g., Mueller, Antitrust and Economics: A Look at "Competition," 10ST, Louis U.L.J. 482 (1966).6. See, e.g., D. BoIEs & P. VERKUIL, PUBLIC CONTROL OF BusINEss 373-76(1977).7. See, e.g., the summary presented in U.S. DEP'T OF JUSTICE, REPORT OF THEATTORNEY GENERAL'S NATIONAL CoMMITTEE To STUDY THE ANTITRUST LAws 315-42(1955).8. Non-distorted competition is the theoretical heart of European communi-ties competition law. See R. FoisoM, CoRPoRATE COMPETrION LAw IN THE EuRo-PEAN COmiuNrEs 31-52 (1978).[voL 19: 289, 19821 Reflections after TeachingSAN DIEGO LAW REVIEWtheory. But pluralities change and decay rapidly too. If Tofflerand others are correct in their observations, are the benefits ofbuilding and adding to such theories outweighed by their costs? Iinvite replies. Would a disposal service for dated legal theories bedesirable? And who should be the sanitation engineers?In this regard I do not see myself as anti-intellectual, just skep-tically anti-theorist. There are alternatives to building and re-building castles in the sky. I am talking about alternative waysfor lawyers and, especially, law professors and law students tospend their time. Greater fact orientation (which, as I have sug-gested, is also a theoretical species) is one alternative.9 Whilearmchair legal theory formulation may have been excusable inthe past, information retrieval and storage systems combinedwith advanced social science analytical techniques now permitand encourage fact orientation. Information overload, despite in-creasing complexity, is simply much less a problem than everbefore. Information overload should not be a cause for retreatsfrom "fact" into "theory."It is now possible, to continue my example, to measure andquantify the marketplace realities of competition with considera-ble sophistication. Thus it is often not necessary to speculatewhether a market reflects "workable," ".monopolistic" or "theoryX" competition when economists (and qualified lawyers) can rea-sonably ascertain the state of competition in that market. Policyplanners and litigants may still usefully communicate in terms ofthe "theories" of their cases, regulations or legislative proposals.Laypersons may more readily identify with and understand anti-trust law as a consequence of its theoretical underpinnings. Lawprofessors and law students will continue to communicate on atheoretical plane which facilitates antitrust learning and research.But it is increasingly the case that basic market "facts," before,after, or while antitrust law is being enforced, altered or studied,need not be the subject of theoretical speculation.Theory LivesFuture shock is not the only perspective in these reflections. Irecognize and oppose the general tendency of theories to take on9. This is not a new insight. American 'realists," sometimes characterized asnaive, have been saying much the same thing for years. See W. Twmio, KARLLEWELLYN AND THE REALIST MovEMENT (1973).lives of their own. While a "living" law or constitution may be de-sirable, a "living" theory of law can be downiight dangerous. Le-gal theories by their very nature represent simplified pictures oflegal processes. Moreover, legal theories are backward lookingabstractions-things which are already cut loose from present-day life.Theories thus distort from birth. Nurtured along by theorists,legal theories can gradually assume lives of their own, more andmore distant from the "facts" upon which they were based. Asthis process of "theorization" occurs, the potential for distortionincreases. Instead of constantly rechecking the observational ba-sis of a theory, as a measure of its present utility, legal theoristsmay prefer to theorize about theory. Grafts and transplants ap-pear. Dialogue continues. Distance is achieved. At some point, alegal theory can resemble a living being, lacking only a social se-curity number. When living theories will die and who will issuetheir death certificates are uncertain. One hundred and fiftyyears passed before H.L.A. Hart was able to inter, in the openingchapters of The Concept of Law,O some of the "command" theo-ries of law of John Austin. In Kuhnian terms," the paradigmfinally changed. During the interim, the study of law suffered con-siderably. Law was read, if you like, with the wrong blinders on.And who is to say Austin's theories will not be reincarnated? AreHart's concepts of law necessarily better blinders? Should lawprofessors spend their time making blinders?Ideology and TheoryAlthough the relationship between theory and ideology is virtu-ally uncharted, I suspect there is at least one linkage which oc-curs somewhere near the point when a legal theory takes on a lifeof its own. I use the word "ideology" in the sense of generallyshared values or perspectives. Independent of the bases uponwhich they were formulated, living legal theories may become le-gal ideology.Take, for example, contract theory and ideology. Law teachers,lawyers and law students have long belabored the "bargain" or"meeting of the minds" theories of contract. The hours spent inthese efforts are probably incalculable. Linkage of these theoriesto the ideological value of "freedom of contract" is easily made.Regardless of which is the chicken and which is the egg, too fewstopped to analyze the social and factual premises behind the10. See HL.A. HART, THE CONCEPT OF LAW (1961).11. See generally T. KuHN, THE STRucTURE OF SciEEN c REvoLUoNs (2d ed.1970).[VoL. 19: 289, 1982] Reflections after TeachingSAN DIEGO LAW REVIEWtheory or the ideology.' 2 Only recently has recognition of the inci-dence of standard form contracts or the impact of economic regu-lation been acknowledged,' 3 revealing that in this century partiesto contracts do not often "bargain" or "meet each others' minds"in offer and acceptance. Yet, in certain quarters, it may still beconsidered heretical to question whether freedom of or to con-tract is a shared value or shared experience in society.' 4 Somelaw school courses in contracts are still skewed in these theoreti-cal and ideological directions. Restructuring legal theory and lawcourses is difficult. Restructuring legal ideology may beimpossible.Theory and LifeThe reader will by now have discerned that these reflectionscontain a distinctly humanistic orientation. I would like to seemore focus on human affairs in legal theory and legal ideology. Atleast since Freud, for example, few would deny that mankind fre-quently acts in irrational, emotional ways. Yet relatively infre-quent acknowledgement of this "fact" is to be found in Anglo-American legal theory. I suggest that this is perhaps the case be-cause law professors, jurists, lawyers and law students are so en-gaged in rationally oriented intellectual processes that theysimply project these biases into their theories regardless of whathumans involved in legal processes are doing or feeling. Such areflection raises fundamental questions. Can rational, simplifyinglegal theories ever adequately explain complex, individual andgroup motivations and activities? Should such theories attempt todeal with how people feel about law and justice? Does this kindof acknowledgement intensify or dilute the impact of futureshock? Does it shorten or lengthen the half-lives of all or somelegal theories? Mere lawyers are not well prepared to begin to re-solve these questions. I do believe intuitively, however, thatthese lines of inquiry will reveal further limits on legal theory.12. Compare CORBIN ON CONTRACTS (1950), with WILIJSTON ON CONTRACTS(1938).13. See, e.g., Kessler & Fine, Culpa in Contrahendo, Bargaining in Good Faith,and Freedom of Contract A Comparative Study, 77 HAnv. L REV. 401 (1964); Ma-caulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM. Soc.REV. 55 (1963).14. See P.S. ATmYA, THE RISE AND FAL OF FREEDOM OF CONTRACT (1979); G.GILMORE, THE DEATH OF CONTRACT (1974); The Relevance of Contract Theory: ASymposium, 1967 Wis. L REV. 803.Consider just one example: theories of fault in divorce proceed-ings. Traditional common law and statutory concepts of fault(adultery, non-support, drunkenness) are in a sense attempts torationally explain why a nuclear family unit should be given per-mission to legally dissolve. Yet it is arguable that a family is es-sentially not a rational human construct but rather exhibitsirrational, emotional human tendencies. The reality and experi-ence of "family" include a wide range of complex, social and psy-chological phenomena which theories of fault in divorceproceedings tend to ignore. If we must retain theories of fault,why not make "failure to love" a ground for divorce? Psychia-trists, psychologists, social workers and other professionals couldgive meaning to such a standard (which is, admittedly, a theoreti-cal standard). I welcome, in the process of legal theory formula-tion, any acknowledgement of the emotional and irrationalaspects of human affairs. Is there not room and need for an "un-reasonable person" theory in tort law?Some readers, true-believing theorists or those for whom legalprocesses are "fact" and nothing else, may be discouraged by mymoderation. Following a middle road, I have tried to take a pro-vocative position upon some limits on the use and formulation oflegal theory. I hope that others (especially other law professors),familiar with different branches of law and legal theory, will find akernel of an idea (dare I say theory) in these reflections whichwill cause them to reconsider how they spend their lives.Chorus:.......... ..............................................

Reflections after Teaching Anglo-American Legal Theory

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Reflections after Teaching Anglo-American Legal Theory

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