Editor's Note: Materials in Humanities (published by the National Endowment for the Humanities) are not copyrighted, as they are publications of the U.S. Government. They may be freely reproduced, although the Editor of Humanities has asked that credit be given to the original publication.

About Mark Kelman: Mark Kelman is Professor of Law at Stanford University Law School. A graduate of Harvard College and Harvard Law School, he has explored the ideological function of legal doctrine in his writing, working in traditional substantive areas of criminal law, taxation, and law and economics.

Paragraph numbering below has been added to facilitate class discussion. It was not included in the original publication. Pages from the original publication are indicated in the text as follows: /p. x.

#1 /p. 12 Legal scholars and policy makers have long looked to other disciplines for insights to help them resolve specific legal disputes. Lawyers turned to psychiatrists for an understanding of the mental processes of people whose behavior was clearly deviant but whose capacity to conform to the law's norms was doubtful; they sought out economists to explain how different anti-trust rules affect industry performance; they asked sociologists and anthropologists to tell them how (or even if) law permeates a culture to influence behavior and how nonlegal forces may supplant the law as a technique of social ordering.

#2 In the past decade, however, as legal scholars lost faith in the cogency of any uniquely legal method or set of insights, they have turned to the disciplines of economics and ethics, seeking there not just enlightenment for specific legal dilemmas but a general framework for all legal discourse. The collapse of the traditional theoretical approaches of Legal Conceptualism and Legal Realism has inspired this new interest on the part of legal scholars in nonlegal material.

#3 The history of this intellectual shift is complex, but let me attempt to give a brief account of twentieth-century legal scholarship.

Legal Conceptualism

#4 Until the post-World War I period, Legal Conceptualism was the prevailing theoretical framework for legal discourse. Judges and scholars generally believed that the whole universe of concrete disputes they would encounter could readily be classified and named. They also believed in the discernible, immutable qualities of the fundamental legal categories into which, it was thought, all legal disputes would fit. Finally, they were certain that these categories would illuminate the resolution of each problem.

#5 How this worked may be demonstrated by looking at a basic issue of contract. A merchant has promised to deliver goods at a very low price, but when the time comes, refuses to deliver. (When the promise was made, the merchant was desperate for cash, and the buyer was the only one around with money to give.) The buyer sues the merchant for breach of contract. For the Conceptualist, the contract is unquestionably valid; the will of both parties was expressed at the time of the agreement.

#6 Since the defendant (the merchant) has received something (the cash) in exchange for his promise to deliver goods, he cannot plead what may conceivably be a bar to the plaintiff's recovery -- an absence of consideration. The nature of a consideration requirement is simply to demonstrate the mutuality of a contract.

#7 Nor can the defendant plead that he was under duress, since duress must be caused by the plaintiff if it is to bar recovery. To a Conceptualist, the nature of contract is to do the will of the parties, not to require a substantively fair bargain or prevent unjust enrichment. The letter of the law is what matters.

#8 To take another example, a state court must decide whether it has jurisdiction to hear a suit against a defendant who usually resides elsewhere. According to the conceptualists, if the defendant was served with a subpoena while technically "present" in the state -- even if he was on a train or plane traveling through the state -- he implicitly has put himself under the power of the local sovereign. And since jurisdiction is simply a function of sovereignty, albeit a purely theoretical sovereignty, the state court will hear the case.

#9 The Conceptualists claim to solve not only private legal disputes through this nominalistic apparatus, but the great constitutional issues as well. In their view, the power of Congress to regulate labor conditions was limited by the injunction against impairment of contract and seizure of property, as though the contours of contractual and property rights were self-evident.

The Challenge of Realism

#10 There were, of course, a multitude of critiques of Conceptualism, and these were loosely defined by the catchword, "Legal Realism." Realism undercut the prevailing views of the usefulness of doctrinal categorization in two significant ways by denying both the possibility and the desirability of Conceptualist legalism.

#11 Take the jurisdiction example: The concept of physical presence in a jurisdiction is plausible in cases involving individual defendants. but how can it be said that a corporation is physically present in any place? And even when one can apply the mechanical tests the Conceptualists favor, is that a desirable course to follow? A defendant who has done no business in Kansas is served with papers while flying over the state and thus physically occupying Kansas' airspace. But another party, who regularly sells defective goods in Kansas is never found there to be served. Is it fair to force only the first person to defend a suit in Kansas?

#12 The Realists, in their antidoctrinal mode, pointed out that the Conceptualists always seemed to have a number of perfectly fitting, but utterly contradictory categories available to decide a case.

#13 Thus a contractor refuses to finish building a promised addition unless the homeowner gives him more money than the parties had originally bargained for: Can the homeowner avoid liability for the increased sum because he received no consideration for promise or will the judge find an implied rescission of the first contract and the formation of a new one incorporating the higher price as a term? /p. 13

#14 The Realists badly damaged some pretentions to the possibility of a legal "science." It was no longer enough to say, as the Conceptualists might, that if a covenant or promise made by one landholder to another "touches and concerns" the neighbor's land, the burden of a covenant will run with the land; that is, those who subsequently own the land will still be bound to the original promisee. The notion of when a promise "touched and concerned" the land is, as any post-Realist knows, incoherent and inapplicable. It seemed much more desirable to ask why the law would wish to bind someone who had not made the promise to some prior promisee or, to reverse the question: Why should we hold a subsequent owner to his predecessor's promise, so long as he understands that he agreed to do something (or forbear from doing something) when he bought the land?

#15 The role of the sophisticated lawyer, according to Realist thinking, was to identify the purposes or policies that would be served in choosing one legal rule or another. Thus the Realist legal scholar became skillful in policy-balancing, at listing the concerns that were present in any case. Legal scholars still thought they possessed a uniquely valuable legal skill.

#16 Realist scholarship, though, has its own set of problems. Most significantly, it is as incoherent as Conceptualism: the "policies" supposedly at stake in any particular case can be chosen practically at random, depending on how one characterizes the dispute. But incoherence is not, I suspect, the main cause of Realism's decline. Realist jurisprudence does not really allow decision makers to pick a definite "best rule," and the open-endedness that Realist jurisprudence fosters is, finally, frustrating and unacceptable.

#17 To take a familiar example from current moral discourse: it is easy to decide on the propriety of abortion in a Conceptualist world where one moves, as if syllogistically, from (1) killing people is impermissible, (2) fetuses are people, therefore (3) abortion is impermissible, or (1) no one has an affirmative duty to save life, (2) permitting a fetus to occupy and feed off one's body is to act affirmatively, therefore (3) terminating pregnancy is permissible. But when one makes the abortion decision as the Realist balancer tends to (women have a strong interest in controlling when or if they have children; fetuses are not-quit-people, but deserving of some protection; beliefs about abortion have a religious aspect that, all things equal, should be kept out of public life), no conclusion is easy or apparent.

#18 How do contemporary legal scholars attempt to resolve the uncertainties left in the wake of Legal Realism? For some practitioners and professors, the study of law has not changed very much. Today's law teachers still spend much classroom time doing what their teachers did -- "distinguishing" cases and reconciling holdings (i.e., pointing out factual variations that differentiate two seemingly similar cases with seemingly disparate results) and alerting students to the need for careful classification of a dispute (e.g., should we call one neighbor's grant of a right to his property to another neighbor an "easement" or a "covenant" and what follows from our initial classification?).

#19 But legal scholars, writing in the law journals about the whole web of case law in a substantive field are less likely to focus on the law's elegance, logical neatness, or even consistency with past written judicial opinion. Instead, they analyze the results of legal actions in terms of ideals that are generally derived either from neo-classical economics or from one of the schools of contemporary "natural right" philosophy such as Nozick's libertarianism or Rawls' conception of the welfare state.

#20 Fields that were once broken up into a myriad of sub-parts have been unified: not only is the property professor in his scholarly mode unlikely to care much about the distinctions between easements and covenants -- both are more prone to be discussed as externality-regulating private land use planning -- but she or he is likely to think little about the distinctions between "property rights" and the "right" to prevail in what is traditionally called a tort suit, preferring to deal with both rights as more general "entitlements," to be scrutinized for their efficiency or fairness.

The Nonlegal Fields

#21 The nonlegal fields -- "law and economics," and the ethical theories that dominated American philosophy in the seventies, Libertarianism and Rawlsianism -- seem to promise to bring order back to the chaotic world of legal scholarship.

#22 The law and economics proponents claim that the Common Law, which is grounded in judicial decisions, has been, and ought to be, a legal discipline that emphasizes efficiency. Law and economics scholars claim that the courts ought to be concerned that resources are allocated to whoever would pay the most for them. (If the ability to pay makes for gross inequities, these should be adjusted through legislative taxation and transfer payments.) The role of law is seen to be twofold. First, since it is imperative to permit free contract, paternalistic legislation or administrative regulation is disfavored and judicial refusal to enforce contracts that are substantively unfair is frowned upon. Second, it is also understood that in many cases, high transaction costs may block contracting when there are too many parties to negotiate. For example, all the parties affected by air pollution could not contract with a polluter to alter his behavior. The job of the legal regime in such cases is either to pick rules that facilitate contracting or to assign the right to the party who would have purchased it, had bargaining been plausible.

#23 Economics, traditionally seen by lawyers as merely a source of technical information about such limited questions as how a public utility commission should set rates, or the impact of various taxes on production incentives, is now the source of a unified, answer-generating theory for all legal disputes.

#24 In the world of the new law and economics scholarship, covenants ought to be enforced against a promisor's successor if and only if the promisee would in fact negotiate the covenant with the promisor's successor, were it not for the transaction costs of locating and reaching agreement with him.

Libertarianism

#25 Libertarian ethical theory also seems to generate fairly concrete and complete legal results. Parties have absolute rights to enjoy the fruits of their labor and to engage in voluntary exchange. Relationships with strangers are governed by the principle that one must compensate those to whom one causes harm. The theory has informed a wide body of private law disputes, demanding, for example, that those who cause injury be strictly liable, not only when their conduct is negligent or unreasonable; and it affects constitutional issues as well, demanding the legalization of so-called victimless crimes such as consensual homosexuality.

#26 Rawls' theory has also been influential, though it has been applied to fewer concrete legal cases. His demands that parties assess the justice of legal claims behind a veil of ignorance, that is without any knowledge which would enable them to know whether a particular rule would benefit or harm them, has been useful in analyzing a variety of legal issues. The procedure has appealed to legal scholars as more scientific and neutral than simply balancing the series of personal, overtly political reactions one has to any set of rules.

#27 While the law and economics and philosophical approaches have been welcomed by legal academics who worried, after the demise of conceptualism, that they could offer no compelling advice to those in power, the internal intellectual coherence of each of these new movements is open to criticism.

Questionable Premises

#28 The economic analysis of law rests on several fundamentally questionable premises: (1) that consumer preferences can be taken as given rather than as a partial product of legal rules; (2) that it is possible to decide whether X or Y should receive a right depending on who would pay more, though the size of X's bid for the right depends on whether he is enriched by having the right in the first instance; (3) that in deciding whether a change in regime is beneficial by asking whether winners from the change could compensate losers, we understand enough about causation to recognize who will lose as a result of the change.

#29 The appeal of libertarianism depends on making a morally coherent case for some initial natural right to one's marginal product, a task that has never been performed satisfactorily though it has been attempted regularly since Locke's Second Treatise. The theory also makes impossibly neat distinctions between omissions and commissions: Does someone who blocks your light cause harm to you? Someone who shines light in your eyes? Do I cause harm to someone when I buy a good and limit its supply?

#30 Rawls' work, on the other hand, is not only questionable (his assumptions about the risk-minimizing behavior of those behind the veil of ignorance have long been criticized) but has proved too Golden Rule-like and general for specific legal applications.

#31 Legal scholars have benefitted from their exposure to economics and ethics, but they have also misused them in their attempts to construct new theories of law. Because lawyers tend to seek certainty -- perhaps because a regime of legality cannot legitimate itself unless law seems scientific and apolitical -- the messages of these other disciplines have been distorted.

How does Kelman understand "Legal Conceptualism"? "Legal Realism"? What does he see as their strengths and weaknesses?

What role has philosophy played in our understanding of legal issues? What have been philosophy's strengths in this understanding? its weaknesses?

What other disciplines have played a role in our understanding of legal issues? What seem to be the strengths and weaknesses of these other disciplines in understanding the law?