As I worked my way through this book on the history of American jurisprudence, I was reminded of Hegel's opening remarks in his lectures on the philosophy of world history: "We witness a vast spectacle of events and actions, of infinitely varied constellations of nations, states, and individuals, in restless succession" (1975:31). Faced by such an unending number and variety of historical phenomena, he continued, "we grow weary of particulars and ask ourselves to what end they all contribute. We cannot accept that their significance is exhausted in their own particular ends; everything must be part of a single enterprise" (1975:33). Despite the danger of oversimplification to which he himself referred in these lectures, Hegel routinely stands accused accurately or inaccurately of attempting to force historical events into the Procrustean bed of monolithic determinism and necessity. At the same time, however, he argued that the task of the historian is to seek patterns behind phenomena which help to explain them. We certainly must be careful not to oversimplify history as we attempt to make sense of history.
Even if he does not refer to Hegel, Neil Duxbury is well aware of this danger, but, despite the title of his book, he is perhaps too aware of it. With all due respect to the author and his daunting efforts, I must say that this is a book which one "works through" rather than reads, a book which will function more as a source book or encyclopedia rather than as the monograph the author intended. It is a massive, densely packed, highly technical work which demands a great deal of prior knowledge on the part of its readers. Its 509 pages of text contain a total of 2,670 footnotes, ranging from a low of 226 footnotes for the 44-page Chapter 3 to a high of 644 footnotes for the 96-page Chapter 4. Duxbury has obviously read extremely widely perhaps, for the sake of the book's coherence, too widely and it is doubtful that even the most specialized reader will have the command of the literature to keep up with him. The major elements of American jurisprudence tackled by Duxbury are formalism, legal realism, law and policy science, process jurisprudence, law and economics, and critical legal studies. There are also extended discussions of the development of the disciplines of political science (in Chapter 4) and economics (in Chapter 5). Duxbury's grasp of the historical detail is admirable, even intimidating, but this reader, at least, is left with all trees and no forest. Remarkably, as I went back through the book in preparation for this review, I discovered that I had been able to find and highlight relatively few passages which might have provided the intellectual scaffolding or the meta-discourse which lays out the thesis and the arguments guiding the detail necessary for maintaining a manageable coherence. There is no concluding chapter which might have brought the major themes together; the book just stops.
At its broadest, Duxbury's argument is that things are more complex than the conventional wisdom would have us believe. That's an important claim, although, pace
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Hegel, it is not itself a very interesting claim. Specifically, Duxbury wants to set himself against the "pendulum swing" vision of American jurisprudential history, according to which ". . . first there was formalism, epitomized by the Langdellian revolution; then came the realist revolt against formalism; after which came the renaissance of formalism, exemplified by both process jurisprudence and law and economics, which was superseded by the return to realism in the form of critical legal studies" (2). His own argument, by contrast, is that "American jurisprudence since 1870 is characterized not by the pendulum-swing view of history but by complex patterns of ideas. Jurisprudential ideas are rarely born; equally rarely do they die" (2).
Thus, by way of example, Duxbury writes:
"Accordingly, while Holmes was certainly an important forerunner of American legal realism, it would be wrong to categorize him straightforwardly as an unequivocal anti-formalist. To chart, as some commentators have done, a straight and uncluttered path from Holmes to the legal realists is to produce an oversimplified intellectual history; for there are arguments to be found in his work which stand antithetical to the basic philosophy of legal realism, arguments which realists tended to overlook or ignore. Various realists gleaned from Holmes all that corresponded with their particular versions of anti-formalism, and left behind them all that did not" (p. 46).
Again, he states later on: "As I have tried to show, however, process jurisprudence did not emerge in response to legal realism. The process tradition in fact evolved alongside realism rather than in reaction to it" (p. 298). Or again, he writes: ". . .I am concerned here with the more general belief . . . that, whether economic analysis represents a continuation of or a rebellion against the realist tradition, it is to this tradition that it owes its existence. This is a belief which ought seriously to be questioned" (p. 307). There is obviously a lot going on at the micro-level here, but at the macro-level up above the air was extremely thin. Either the book was so densely packed that I was unable to discover and keep clearly in mind a concise, substantive argument which really is to be had here, or else, to refer back to Hegel in paraphrase, I grew weary of particulars and asked myself to what end they all contributed.
And yet on a piecemeal basis there is much of interest to be found in this book. While Duxbury does not mention Cass Sunstein's THE PARTIAL CONSTITUTION, we see, for example, the antecedents of Sunstein's arguments as to the concept of "natural":
"Lawyers such as Robert Hale, Karl Llewellyn, John Dawson and John Dalzell endeavored to show that the economic freedom by which the Supreme Court swore was not really freedom at all, that it was merely freedom to engage in economic coercion. The Court's mistake, these writers argued, was to assume the existence of a formal equality of bargaining rights among economic
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agents and, on that basis, to declare constitutionally invalid state legislation which attempted to redress real inequalities of bargaining power" (324).
Perhaps because my own work is in the originalism debate in contemporary constitutional theory, I found Chapter 4, "Finding Faith in Reason," on process jurisprudence to be the most interesting. We encounter discussion of such scholars as Wechsler, Bickel, Hart and Sacks, Wellington, Ely, and Dworkin. While almost all contemporary constitutional theorists are arguably the intellectual children of Bickel, Duxbury presents Bickel in this broader context, where we see the roots of the arguments of institutional competence -- legislatures legislate (make law), courts adjudicate (interpret law) -- and neutral principles which appear throughout the contemporary literature in the work of Robert Bork and other originalists.
What struck me as the most interesting suggestion in the book, however, is this:
". . . since the middle part of this century, American jurisprudence has been dominated by a quest for consensus. Both process jurisprudence and neo-classical law and economics are founded, albeit in very different ways, on the belief that it is possible to demonstrate the existence of certain theoretical premises which, if properly articulated, may prove acceptable to all reasonable people. . . . Not only do the law and economics and process traditions assume, in their different ways, the possibility of consensus; they also take it for granted that the American legal system protects individual liberty, and that the basic purpose of legal theory is to demonstrate how that system might serve the cause of liberty still better" (423-4).
It was out of this environment of consensus theory that the conflict theory of Critical Legal Studies emerged.
That contrast -- consensus theory vs. conflict theory -- might have been an excellent narrative theme in Duxbury's discussion of jurisprudential history. Indeed, Duxbury goes on to write:
"Critical legal studies has been written off for failing to supply answers to the problems which realism merely posed: adjudication is still a political affair; economic freedom still conceals coercion. Yet if there is one fundamental lesson which critical legal studies teaches, it is that there are no right answers to the problems which realism posed. The basic conclusion of critical legal studies is that lawyers must constantly be reminded of these problems. That is more or less as far as critical legal studies goes. It is, I shall conclude, in the outgrowths from critical legal studies particularly in feminist jurisprudential literature and in critical race theory that we discover American legal theorists at last moving beyond realist and critical legal thought in
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ways which do not entail the basic appeal to consensus which is evident in the law and economics and process traditions" (427-8).
This theme struck me as really meaty and interesting, and would have provided the book with a clear road map through the immense detail it presents. Nevertheless, the theme remains only a hint at the end of the book. Consequently, I was left reminded of the old saw as to how to do good scholarship: have a German research everything that's ever been written on the topic; have an Englishman separate out what's truly relevant and important; and have a Frenchman write it. Neil Duxbury is apparently English, but he wrote PATTERNS OF AMERICAN JURISPRUDENCE like the proverbial German.
References:
Hegel, G. W. F. 1975. Lectures on the Philosophy of World History: Introduction. Trans. H. B. Nisbet. Cambridge: Cambridge University Press.
Sunstein, Cass R. 1993. THE PARTIAL CONSTITUTION. Cambridge: Harvard University Press.
