Horwitz, Morton J.

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Buffalo Law Review Volume 27 Number 1 Article 4 12-1-1977 The Ages of American Law. By Grant Gilmore Morton J. Horwitz Harvard University Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Law Commons, and the Legal Theory Commons Recommended Citation Morton J. Horwitz, The Ages of American Law. By Grant Gilmore, 27 Buff. L. Rev. 47 (1977). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol27/iss1/4 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BOOK REVIEWTHE AGES OF AMERICAN LAW. By GRANT GILMORE. New Havenand London: Yale University Press 1977. X + 154 pp. $10.00.MORTON J. HORWITZ*We seem to be in the midst of another of those major paradigmshifts in American legal theory of which we have had but three dur-ing the past two hundred years. During such periods, as Thomas Kuhnhas allowed us to see, it is usually difficult for the fathers and sons toengage in serious intergenerational dialogue.1 The fathers continue tofight the last war; the sons, while dreaming Freudian dreams, see theirfathers' system of thought as outmoded.Professor Gilmore's elegant set of lectures is primarily meant todescribe what has by now become a standard periodization of Ameri-can legal history. The first period, roughly between the Revolutionand the Civil War, he calls the Age of Discovery. The second period,the Age of Faith, existed until around World War I. And for the pasthalf century we have been laboring under the burden of the Age ofAnxiety.For the most part this review will focus upon only one small por-tion of Gilmore's book-his disapproving parental admonitions againstwhat he sees as the emergence of a disturbing "next generation" inAmerican legal scholarship.2 But since his critical views of our currentsituation are intimately related to his conception of certain "lessons"to be learned from the three prior ages of American law, I will wantto say something more in a moment about Professor Gilmore's versionof legal history during the last two periods in his scheme.Gilmore calls the disturbing new turn in legal scholarship theNew Conceptualism. Just as the old conceptualism during the Age ofFaith was displaced by "the pluralism of such scholars as Corbin,Llewellyn, and Kessler, the New Conceptualists ... have returned tothe elaboration of unitary theories, to the reduction of all principlesof liability to Holmes's 'philosophically continuous series.' '* Professor of Law, Harvard University; A.B., C.C.N.Y., 1959; Ph.D., 1964, LL.B.,1967, Harvard University.1. See T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).2. G. GHLMoRE, THE AGEs OF AMERICAN LAw 108 (1977).3. Id. at 107-08.BUFFALO LAW REVIEWGilmore clearly takes his stand against the emergence of "wellarticulated theory" in law.4 Theory, it appears, is synonymous with"conceptualism" and conceptualism with "formalism." "The vice ofthe formalistic approach to law, on the level of serious scholarship,"he warns us,is that it leads to a disastrous overstatement of the necessary limitsof law. In our own history, both in the late nineteenth century andin our own time, the components of the formalistic approach haveincluded the search for theoretical formulas assumed to be of univer-sal validity and the insistence that all particular instances should beahalyzed and dealt with in the light of the overall theoretical struc-ture. Solutions to problems are "right" if they conform to, "wrong"if they deviate from, that structure. The theoretical model itselfquickly becomes frozen, so that what was "right" or "wrong" in 1870must be equally "right" or "wrong" in 1920; what is "right" or"wrong" in 1970 will be equally so in the no doubt magical year ofdouble twenty. The adept of formalism, once he has perfected hismodel (or borrowed one ready-made from an economist or sociolo-gist), becomes an advocate of stability and an enemy of furtherchange. This process takes place quite as inexorably with respect totheories or models which were in their origins radical or revolution-ary as it does with respect to those which in their origins were con-servative or traditionalist 5And he concludes by articulating the "lesson" his generation hasbeen teaching sub silentio for almost fifty years.[Tjhe lesson of the past two hundred years is that we will do well tobe on our guard against all-purpose theoretical solutions to our prob-lems. As lawyers we will do well to be on our guard against any sug-gestion that, through law, our society can be reformed, purified, orsaved. The function of law, in a society like our own, is altogethermore modest and less apocalyptic. It is to provide a mechanism forthe settlement of disputes in the light of broadly conceived princi-ples on whose soundness, it must be assumed, there is a general con-sensus among us. 6Most of Gilmore's attack on the New Conceptualism is reservedfor "the extreme right wing (speaking both politically and jurispru-dentially) but by no means all of it."' 7 He is clearly delighted to quoteUniversity of Chicago Professor Richard Posner's simplistic attempt4. Id. at 107.5. Id. at 108-09.6. Id. at 109.7. Id. at 146 n.11.(Vol. 27BOOK REVIEW"to encourage the application of scientific methods to the study of thelegal system." "As biology is to living organisms, astronomy to thestars, or economics to the price system," Gilmore has Posner say, "soshould legal studies be to the legal system." But, Gilmore confessesthat his effort to "[link] . . . the New Conceptualism with the 'con-servative reaction' . . . [of the 1950's] may not be altogether accurate.... Certainly, a fondness for unitary theory and universal abstractionhas never been the exclusive possession of conservative thinkers."'1 In-deed, he accounts for the increasing prominence of legal history sincethe 1960's by noting that "[d]uring periods of apparent social dissolu-tion the traditionalists, the true believers, the defenders of the statusquo, turn to the past with an interest quite as obsessive as that of theradicals, the reformers, and the revolutionaries."" During this "crisisof Western thought," he tells us, we must prepare ourselves for "bothleft-wing revisionists and right-wing traditionalists."' 2Here then is a jeremiad delivered by (of all things) a self-con-fessed "skeptical relativis[t]" who warns us that we are about to repeatthe errors of our grandfathers and turn our backs on the hard-wonwisdom of our fathers. The fathers learned after considerable strugglethat the grand illusion of the Age of Faith was Faith itself; that thegreat "vice" of theory was that any "theoretical model itself quicklybecomes frozen . . . [and] . . . [t]he adept of formalism, once he hasperfected his model... becomes an advocate of stability and an enemyof further change."'3While Gilmore identifies "The End of Ideology" as one of "[t]hecheerfully meaningless slogans of the 1950s" that "ha[s] not survivedthe national and international chaos of the 1960s and 1970s,"' 4 he doessuggest that "the conservative reaction which inspired [those] politicalslogans may, on a much more sophisticated level, still be with us."' 5But what else can possibly lie behind his "skeptical relativism" thanprecisely that system of thought that produced the End of Ideologyliterature during the 1950's?It is not surprising that one who has so little respect for "theory"can so unselfconsciously return to that complacent deus ex machina8. Id.9. Id.10. Id.11. Id. at 102.12. Id. at 104.13. Id. at 108.14. Id. at 106.15. Id. at 107.1978]BUFFALO LAW REVIEWof the political theory of the 1950's-"broadly conceived principles onwhose soundness, it must be assumed, there is a general consensusamong us."' 6 Consensus theory was, after all, the articulated ideologicalfoundation of the End of Ideology literature, which Gilmore correctlyidentifies as part of the post-war "conservative reaction." So why doesn'the see that "skeptical relativism," consensus theory and the End ofIdeology literature are all part of the same bag?The answer to this question takes us back to the ways in whichthe legal (and political) consciousness of Gilmore's generation wasformed. It is, in fact, the story of how members of the legal elite dur-ing Gilmore's own age-the Age of Anxiety-confronted and over-threw the legal consciousness of the prior Age of Faith. Gilmore's ver-sion of legal history is not, therefore, "mere" legal history. Instead, itis intended to teach lessons and convey warnings about the disastrousconsequences of any return to an Age of Faith.Notwithstanding a whole series of necessary qualifications andcomplexities, the stark fact about the Legal Realists of Gilmore's gen-eration is that they chose to attack legal formalism not on the basisof its reactionary political premises but on its conceptualism. Theylaunched a process-oriented methodological attack on the possibilitiesof elaborating any coherent legal theory, not on the political valuesthat underlay the particular legal theory they sought to overthrow.' 7For seventy years every progressive proponent of judicial activism hasbeen challenged to justify why he wasn't simply returning to Lochnerv. New York,' 8 that bate noir of the Age of Faith.This is not the place to document carefully the ways in whichLegal Realism undermined the Old Order. But it is clear that its ma-jor strategy was to attack the "absolutism" of the Age of Faith and toinsist that the possibilities of objective reasoning about law and valueswas inevitably illusory. Skeptical relativism brought us incrementalism,"line drawing," balancing tests, an exclusively process-oriented juris-prudence, and finally, a conservative appeal to "consensus" as the onlyremaining arbiter of values.Why the attack on the Age of Faith had to wrap itself in therobes of positivism and relativism is an important and complex ques-16. Id. at 109.17. I am indebted to my colleague Duncan Kennedy for originally suggesting thistheme and some others developed in this review. They are elaborated in Kennedy, Formand Substance in Private Law Adjudication, 89 HAIv. L. Rnv. 1685, 1731-32, 1748-49,1756-60 (1976).18. 198 U.S. 45 (1905).(Vol. 2 7BOOK REVIEWtion. We need to understand why it was necessary to destroy Faith it-self and not the particular corrupt values to which orthodox legaltheory had attached itself. The usual explanation is that the prestigeof the natural sciences was so captivating and irresistible that legaltheorists could hardly avoid emulating the methodological debates thengoing on in the natural and social sciences. 19 But, standing alone, thisexplanation strikes me as superficial. There was nothing preordainedabout the identification of legal with scientific methodology. Indeed,with his slogan of "law as science," Langdell had already made anysuch equation an easy object of scorn and ridicule.The answer seems to lie in the two-front war that liberal reform-ers were forced to fight beginning in the 1890's. Again, if we put toone side a whole series of necessary qualifications and complexities, theleading theoretical alternative to the reactionary political theory of the1890's was Socialism. Both Left and Right confronted the reformistCenter with relatively internally coherent visions of the political andlegal order, which required one to choose between basic and irrecon-cilable visions of social, economic, and political life. For reasons deeplyrooted in their connections to the Established Order, the reformerswere thoroughly unprepared to choose between such stark alternatives.And the superficial-and hypocritical-institutional tinkering that Pro-gressivism made possible reinforced their yearning to believe that nosuch irreconcilable choice was in fact necessary. It was coherent theoryitself, they came to insist, that was the enemy because it sharply exag-gerated social conflict and made ultimate value choice necessary. Com-mon sense, skeptical relativism, a dash of modest and incremental in-stitutional adjustment and, finally, a vision of a deeply consensual so-ciety that would save them from the agony of ultimate political choicepermitted them to conceive of themselves as heroically walking a tight-rope between "ideological extremes."The 1960's exploded that vision and, as hard as we try, it willnever be the same again. We confront a political and moral bank-ruptcy that only time will bring into clearer focus. And despite hisdark and foreboding talk about "the crisis of Western thought"20 and"the polarized society which we seem to have arrived at" which makes"consensus . . . unlikely,"2' Professor Gilmore seems stuck with his19. For a very fine discussion of this subject, see E. PURCELL, THE CRISIS OFDEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE (1973).20. G. GILMORE, supra note 2, at 104.21. Id. at 108.1978]BUFFALO LAW REVIEWgeneration's faith in the incapacity of thought to illuminate our pre-dicament. "Man's fate," he tells us,will forever elude the attempt of his intellect to understand it. Theaccidental variables which hedge us about effectively screen the futurefrom our view. The quest for the laws which will explain the riddleof human behavior leads us not toward truth but toward the illusionof certainty, which is our curse. So far we have been able to learn,there are no recurrent patterns in the course of human events; it isnot possible to make scientific statements about history, sociology, eco-nomics-or law.22To the extent that Gilmore is attacking a particular simplistic(and value neutral) version of behavioral "social science" that haslong dominated American academic thought, he is clearly correct. Buthis message is meant to be much wider and deeper than that. It standsfor a corrosive skepticism which rails at the possibilities of all system-atic thought and condemns all efforts at large theoretical undertakingsas "absolutist" illusions. It has been responsible for the low state ofthe entire post World War II generation of legal scholarship.We have had only one major American legal theorist-Holmes.And for all the silly mythologizing of Holmes that Gilmore correctlyscorns, he is a figure to be emulated and admired-not for his per-sonal vision of things which Gilmore accurately describes as "savage,harsh, and cruel, ' 23 but for his faith in the capacity of the human mindto rise to the highest flights of theory and synthesis.Yet even Holmes ultimately flunks Gilmore's test. "He talks to usfrom on high, laying down principles of unrestricted universality, re-ducing the bases of liability to what he called .. .a 'philosophicallycontinuous series.' "24 And though his "thought was subtle [and] so-phisticated," "Holmes's accomplishment was to make Langdellianismintellectually respectable. '25But Holmes is usually remembered for his attack on Langdell'slegal "theology." No, says Professor Gilmore. "Langdellian jurispru-dence and Holmesian jurisprudence were like the parallel lines whichhave arrived at infinity and have met. '20 The parallelism lies inHolmes's effort "to reduce all principles of liability to a single, philo-sophically continuous series and to construct a unitary theory which22. Id. at 100.23. Id. at 49.24. Id. at 53.25. Id. at 56.26. Id.[Vol. 27BOOK REVIEWwould explain all conceivable single instances and thus make it unneces-sary to look with any particularity at what was actually going on in thereal world."21Gilmore's generation is thus forever locked in to the particulardogmas of the way it has chosen to define the vices of formalism.Theory, abstraction and generalization came to be understood as in-evitable efforts to obscure "what [is] actually going on." The remain-ing legacy of disintegrated realism is a vision of social life as consist-ing of "accidental variables," an insistence that "there are no recurrentpatterns in the course of human events," and an Olympian disbeliefin the capacity of man's intellect to understand. Their own particular"theory" of the nature of the Age of Faith precludes them from eventrying to understand what is actually going on in the real world.There is theory and there is theory. Gilmore's generation wasright, I think, in believing that abstraction was used by the Old Orderto obscure the realities of social life. And from that insight they gen-erated their own theory of theory, their own universal abstractionabout the inherently obscurantist and inevitably reactionary functionsof theory. They had, in short, their own social version of "recurrentpatterns in the course of human events." They arrived at this point, inpart, because they were unwilling to delve too deeply into less respect-able alternative theories which, though providing the possibility of il-luminating the actual conditions of social life, would have left thempolitically exposed.The great cop-out of Gilmore's generation is precisely its ownFaith; its skepticism has enabled it to have contempt for systematicthought about what is actually going on. No less than during the Ageof Faith itself, the reigning skepticism of current legal scholarship isnow the official faith that keeps us from really understanding what ishappening. It is time for the sons to stop listening to the war storiesof their fathers.27. Id.1978]

The Ages of American Law. By Grant Gilmore

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The Ages of American Law. By Grant Gilmore

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