Abstract
My purposes in this article are dual: to discuss some relatively neglected issues about the scope, aims, and methods of legal theory that arise out of, yet transcend, the differences between Professor Moore and myself, and to comment on some of Professor Moore’s criticisms of my book, Instrumentalism and American Legal Theory 1
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Notes
R. Summers, Instrumentalism and American Legal Theory (1982).
Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism. A Review Essay of Instrumentalism and American Legal Theory by Robert S. Summers, 69 Cornell L. Rev. 988 (1984).
Id. at 1000, 1011
A/, at 1011.
Id. at 1000. Among the other significant misunderstandings are these: ( 1 ) Professor Moore says I merely organized my book around themes that interested the American pragmatic instrumentalists. I organized the book around themes of legal theoretic interest that con¬cerned these thinkers. (2) Professor Moore calls my reconstructed version of instrumentalist theory a Weltanschauung—a “world view.” But the tenets of instrumentalist theory are not, in the usual sense of the word a Weltanschauung. (3) Professor Moore suggests that extreme rule skepticism was widespread among the instrumentalists. It was not widespread among those theorists I selected for study in my book. See generally R. Summers, supra note 1, at ch. 6, 161–62. (4) Professor Moore says that a theory of change in the law is the nominal topic of my chapter 3. This is not so. The nominal as well as the substantial topic ofthat chapter is the general theory of law making. (5) Professor Moore remarks that in my book I do not recognize the weaknesses of the “what was done” theory of precedent. This is untrue. The reader should see my chapters 4, 5, and 6, especially pages 102–05,112–15. (6) Professor Moore says that I omit entirely any treatment of instrumentalist writings on facts and factual analysis in the law. Parts of chapters 1,3, and 6 are devoted to this, and I remark at pages 279–80 of my book that this is an important area of further inquiry that these thinkers opened up. (7) Professor Moore complains that I did not give enough emphasis to instrumentalist theories of interpretation. He adds, however, that these thinkers largely failed to articulate a theory of interpretation, a point I also make in my book at pages 153–54. (8) Professor Moore says I am unable to state “precisely” how values enter a theory of adjudication. On page 173, 1 do treat an important aspect of this, and I go into it more fully in an earlier article. See Summers, Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification, 63 Cornell L. Rev. 707 (1978).
Moore, supra note 2, at 1011.
In the book I stated that: The virtues are impressive. Many of these theorists saw the importance of formulating a general theory of value. As instrumentalists they naturally saw how law is itself an expression of value. It might even be said that they reconceptualized law’s nature. They saw it as a set of practical social tools with specific uses and identifiable effects, rather than as an authoritative and formal body of preexisting precepts. Surely these alone were gigantic steps. Those who had gone before had drastically overstated the necessary limits of law’s efficacy. The instrumentalists corrected this, and at the same time introduced technological rationalism and an empiricist mentality into legal thought. They brought to the fore the element of personnel in the law and provided a devastating critique of formalism, especially as it afflicted judges. It is appropriate to say that the instrumentalists opened up several relatively new branches of legal theory (including some that even the percipient Bentham had missed). Among these were the nature and variety of the means at law’s disposal, the law’s varied and complex goals and goal structures, the element of personnel in law, and the limits of law’s efficacy. R. Summers, supra note 1, at 279 (emphasis in original).
In the book I stated that: Beginning with the vices, we can conclude that these theorists dwelled far too much, in their theorizing about values, on the merely quantitative maximizing of wants and interests (as conventionally given). They thus failed to give qualitative notions of the just, the right, and the good their due. In stressing the practical and “technological” aspects of law, they neglected its normative character. It is true that they unmasked judicial lawmaking, but they devoted too little attention to the norms that should govern it. They were also unduly change-minded and experimentalist. They did not work out a general theory of justification for common law cases or for cases involving written law. They were excessively means-minded, and failed to grasp fully how law can be understood in terms of a continuum of means and goals. They adopted restrictive models of law’s goals and means — models essentially behavioral in nature. They generally misdescribed the nature of the criteria of validity at work in our system, and insisted on a misleading and, in my view, unhealthy version of the doctrine that law and morals are separate. They espoused an untenable predictivism. They failed to see major differences between legal and machine technologies. They overstated the roles of coercion and force. And they were naive about the complexities and difficulties of determining law’s effects and social facts generally. These are not small failures. Yet many are failures of overemphasis or of neglect and can thus be remedied. Id. at 278–79.
It is a defect of my book that it does not include a summary of the leading tenets. For a more extended summary than the one I now offer, see Summers, Pragmatic Instrumentalism and American Legal Theory, 13 Rechtstheorie 257 (1982).
R. Summers, supra note 1, ch. 1.
O.W. Holmes, The Common Law 41 (1881).
R. Summers, supra note 1, ch. 2.
Llewellyn, À Realistic Jurisprudence — The Next Step, 30 Colum. L. Rev. 431, 464 (1930).
R. Summers, supra note 1, ch. 3.
M ch.4.
M at 112–15.
Aj.ch.6.
Is. Id ch. 7.
Id ch. 10.
F. Cohen, The Problems of a Functional Jurisprudence, 1 Mod. L. Rev. 5, 8 (1937) (footnote omitted).
R. Summers, supra note 1, ch. 11.
Id. at 62–66, 69–70, 74–78, 105–12, 161–74, 182–89, 193–201, 212–22, 227–35, 258–67.
See, e.g., W. at49–59,66–69,70–74,78–79,92–99,105–15,121–33,161–75,179–89,201–08,215–22,225–30,250–52.
Cf text accompanying infra note 159 (on “presentism”).
See, e.g., A.G.N. Flew, A Dictionary Of Philosophy 228 (1979).
See generally Boyd, On the Current Status of the Issue of Scientific Realism, 19 Erkenntnis45 (1983).
The so-called legal realists might be called “realists” in literary parlance, for they were concerned with fidelity to real life and with the accurate representation of life.
See generally J. Bentham, The Works Of Jeremy Bentham (J. Bowring ed. 1843).
See generally R. Ihering, Law As A Means To An End (I. Husik trans. 1913). On Bentham’s possible influence on Ihering, see Coing, Bentham’s Bedeutung für die Entwicklung der Interessenjurisprudenz und der allgemeinen Rechtslehre, 54 Archiv Für Rechts- Und Sozialphilosohie 69 (1968).
There was also a rather different movement in Scandinavia called “legal realism”. See Hart, Scandinavian Realism, 17 Cambridge L.J. 233 (1959).
Professor Moore writes as if I referred only to the American theorists when I made this claim. The European instrumentalists also qualify as part of this tradition.
Moore, supra note 2, at 993.
Id at 988–89.
R. Summers, supra note 1, at 273, 279–80.
Id. at 38 (”Sometimes the American theorists carried the analysis rather far. More often, they merely gestured suggestively (yet unmistakably) in certain directions.”). See id. at 279–80.
Moore, supra note 2, at 1011.
See, e.g., works cited in R. Summers, supra note 1, at 288–90.
See supra note 22.
R. Summers, supra note 1, at 22–26, 269–70.
Id. at 269–70.
In fact, I know of no single notion in any other theory with similarly wide-ranging integrating properties. Some such properties are logical, some functional, and some otherwise.
I did not discuss this criterion in my book. See generally Nowell-Smith, Philosophical Theories, 48 Aristot. Soc. Proc. 165 (1948); Summers, Notes on Criticism in Legal Philosophy, in More Essays In Legal Philosophy 9–10 (R. Summers ed. 1971).
R. Summers, supra note 1, at ch. 5.
Id. at 112–15.
Id. ch. 6.
Id. chs. 3, 8, 9, 11.
Id. chs. 11, 12.
Id chs. 1,2.
Mat 143–44.
Id. ch. 1.
Id ch. 3
M chs. 2, 3, 8,9, 10, 11,12.
M at 272.
The question of what properly qualifies as a general legal theory merits more extensive treatment than either Professor Moore or I have been able to give it here. The question is exceedingly complex and requires a book of its own.
Moore, supra note 2, at 1013.
M at 1012.
Id. at 1013.
I am indebted to my colleague Professor David Lyons for discussion of this point.
See, e.g. J. Austin, The Province Of Jurisprudence Determined (1832); H.L.A. Hart, The Concept of Law(1961); H. Kelsen, General Theory Of Law And State (1945).
See, e.g., T. Aquinas, Summa Theologica, in Selected Political Writings 52 (A.P. d’Entreves ed. 1959); 1 W. Blackstone, Commentaries On The Law Of England (W.C. Jones ed. 1976); H. Grotius, Prolegomena To The Law of War and Peace (F. Kelsey tr. 1957); S. Pufendorf, de Jure Naturae et Gentium Libri Octo (H. Milford ed. 1934); Locke, An Essay Concerning the True Original, Extent and End of Civil Government, in The English Philosophers From Bacon To Mill 403, 503 (E. Burtt ed. 1939).
See, e.g., J.C. Carter, Law, Its Origin, Growth And Function (1907); H. Maine, Ancient Law (F. Pollock ed. 1906); F. von Savigny, Of The Vocation Of Our Age For Legislation And Jurisprudence ch. 2 (A. Hay ward ed. 1975).
Moore, supra note 2, at 1011.
Id. at 993. It is not difficult to trace the origins of Moore’s conception. Professor Ronald M. Dworkin has written that a general theory of law, in its normative part, “must have a theory of legislation, of adjudication, and of compliance.” R. Dworkin, Taking Rights Seriously vii (1978). Professor Dworkin goes on, however, to indicate that a general theory of law may also treat many other matters.
See, e.g., J. Austin, supra note 59.
See, e.g., H. Kelsen, supra note 59.
See H.L.A.Hart, supra note 59.
See works cited supra note 61.
Moore, supra note 2, at 1013.
Id. at 1002–10.
Id. at 1010.
Id. at 1013.
Id. 1003.
Id. at 1008.
An important exception is Jeremy Bentham. For his views on value, see J. Bentham, An Introduction To The Principles Of Morals And Legislation (Burns & Hart eds. 1970). For his general views on adjudication and fact finding, see Postema, The Principle of Utility and the Law ofProcedure: Bentham’s Theory of Adjudication, 11 Ga. L. Rev. 1393 (1977).
Kelsen may be something of an exception. See R. Moore, Legal Norms And Legal Science ch. 4 (1978).
See generally A.P. d’Entreves, Natural Law (2d ed. 1979).
Moore, supra note 2, at 1010.
See supra p. 1022.
See, e.g., works cited supra notes 59–60.
R. Summers, supra note 1, ch. 1.
Compare, for example, Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908) with H. Kelsen, Pure Theory Of Law 348–56 (1967).
See supra note 75.
Moore, supra note 2, at 1003.
R. Summers, supra note 1, ch. 4.
H. Kelsen, supra note 59, chs. X, Xl
H.L.A. Hart, supra note 59, chs. V, Vi (1961).
Moore, supranote 2, at 1005. See also R. Summers, supra note 1, at 54–56, 87–89, 146–47.
R. Summers, supra note 1, at 154–57; see also D. Lyons, Ethics And The Rule Of Law 92–95 (1984); Wilson, The Nature of Legal Reasoning: A Commentary with Special Reference to Professor MacCormick’s Theory, 2 Legal Stud. 269 (1982).
See Summers, supra note 5.
Moore, supra note 2, at 1010.
R. Summers, supra note 1, chs. 3,6, 11.
Moore, supra note 2, at 1002–13.
Id. at 1003.
Id. at 1004.
H.L.A. Hart, supra note 59, chs. V, Vi.
Moore, supra note 2, at 1005 (footnote omitted).
R. Summers, supra note 1, at 57, 112–15, 148–50.
Moore, supra note 2, at 1006–07.
Id. at 1007.
See, e.g., Pound, The Scope and Purpose of Sociological Jurisprudence (pts. 1–3), 24 Harv. L. Rev. 591 (1911), 25 Harv. L. Rev. 140 (1911), 25 Harv. L. Rev. 489 (1912).
See, e.g., Llewellyn, supra note 13, at 431.
Moore, supra note 2, at 993.
Id. at 1011.
Id. at 993–96.
See, e.g., Moore & Sussman, Legal and Institutional Methods Applied to the Debiting of Direct Discounts, 40 Yale L.J. 381 (1931).
See, e.g., Pound, supra note 100.
See H.L.A. Hart, supra note 59, at vii.
Id.
Hacker, Hart’s Philosophy of Law, in Law, Morality And Society: Essays In Honour Of H.L.A. Hart 1, 8 (P. Hacker & J. Raz eds. 1977).
H.L.A. Hart, supra note 59, ch. Iv.
Id. at 35–38.
Id. at 27–33.
Id. at 43–48.
Id. at 189–95.
This complex cluster of problems requires a separate essay.
See generally Hexner, The Timeless Concept of Law, 52 J. Politics 48 (1943).
Moore, supra note 2, at 998.
See generally Summers, The Technique Element in Law, 59 Calif. L. Rev. 733 ( 1971 ).
Hart has stated this in conversation on several occasions.
Raz, On the Functions of Law, in Oxford Essays In Jurisprudence 278 (A. Simpson ed. 1973).
See R. Summers, supra note 1, at 198–200.
See generally Hall, Conceptual Reform — One Task of Philosophy, 61 Aristot. Soc. Proc. 169(1961).
Moore, supra note 2, at 990.
See supra text accompanying notes 110–14.
Moore, supra note 2, at 994.
Id. at 997. It is interesting to contrast Moore’s view with that of Arnold Brecht: “Far greater efforts... should be diverted to the critical examination of goals and goal-values than have been in the past several decades. ...” Brecht, Political Theory: Approaches, in 12 International Encyclopedia Of The Social Sciences 307,313 (1968).
See R. Summers, Lon L. Fuller ch. 2 (1984).
R. Summers, supra note 1, at 66.
Moore, supra note 2, at 997 (footnote omitted).
For precisely this point, see Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 876–78(1930).
Moore, supra note 2, at 997.
Id.
Id. at 996.
Id. at 996–97. For a more elaborate account of this conception of taxonomy, see Tiryakian, Typologies, in 16 International Encylopedia Of The Social Sciences 177, 177–80(1968).
Moore, supra note 2, at 996.
Id.
Id.at 997.
H.L.A. Hart, supra note 59, at 32 (emphasis in original).
Moore, supra note 2, at 997.
See Llewellyn, Some Realism About Realism — Responding to Dean Pound, 44 Harv. L.Rev. 1222(1931).
There is a rapidly growing literature on the methodology and the pros and cons of reconstruction. See, e.g.,The History Of Ideas (P. King ed. 1983).
As I pointed out in my book, my ultimate interest was “aggregative.” The book concentrated on theorists as members of a collectivity sharing certain tenets. See R. Summers, supra note 1, at 13.
I frequently pieced together the positions of individual theorists from different sources, as manyof those thinkers were not very systematic. See R. Summers, supra note 1, at 25.
See supra pp. 1019–21.
For a listing of these extreme views, see supra p. 1020.
Moore, supra note 2, at 999–1000.
M at 1001.
Id.
Id
Id. at 1001–02.
Id. at 1002.
Id. at 989.
Id. at 1003.
The instrumentalists were interested in standards of validity, see R. Summers, supra note 1, ch. 4, in facts and descriptions of facts, see id. ch. 6, in theories of interpretation and precedent, see id. ch. 6, and in the theory of value, see id. ch. 1. They were not much concerned with the role of formal logic in legal reasoning. It cannot be said, though, that these theorists synthesized the foregoing interests into what Moore might call a “unified” theory of adjudication.
Quentin Skinner has explained better than could I why it would be wrong to “reconstruct” such answers. See Skinner, Meaning and Understanding in the History of Ideas, 8 Hist. & Theory 3 (1969).
Moore, supra note 2, at 1001.
Mat 1002.
Id.
“Presentism” has now become something of a name for a diverse cluster of views emphasizing currency as the criterion of relevance. See, e.g., Hall, In Defense ofPresentism, 18 Hist. & Theory 1 (1979).
Moore, supra note 2, at 989.
Moore, supra note 2, at 1010.
See, e.g., S. Nagel, Public Policy: Goals, Means, And Methods (1984); D. Mazmanian & P. Sabatier, Implementation And Public Policy (1983).
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Summers, R.S., McRoberts, W.G., Goodhart, A.L. (2000). On Identifying and Reconstructing a General Legal Theory. In: Essays in Legal Theory. Law and Philosophy Library, vol 46. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9407-3_4
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