Origins of Order by Paul W. Kahn;

Author:Paul W. Kahn;
Language: eng
Format: epub
Publisher: Yale University Press
Published: 2019-02-26T16:00:00+00:00

Langdell: From God to Reason

Langdell, like Blackstone, was simultaneously designing a course of legal pedagogy and offering a theory of the nature of law.49 Again like Blackstone, he believed these dual aims point to a need to make the study of law a science. In the modern university, a science refers to both a course of study and an object of study—for example, chemistry or biology. And like Blackstone, Langdell believed that the object of scientific interrogation is, in the first instance, the case. For Langdell, cases increase dramatically in importance: they are not only evidence of law; they are the source of the authority of law. The reason of law is no longer made authoritative through the divine will; the system of law is no longer a part of God’s creation. God disappears from the account of legal authority. System cuts its tie to a divine project.

This shift toward a deeply historicized understanding of the order of social (and biological) phenomena is characteristic of nineteenth-century thought. Stories of originary acts no longer offer explanations; rather, they serve only as myths. Darwin is paradigmatic of this shift. Langdell shows us that the shift does not necessarily take a Darwinian form. Yet, absent something like a Darwinian account of competition within environmental constraints, Langdell’s appeal to history absent God produces more of a conundrum than a coherent account.

Blackstone’s interest in history had a kind of antihistorical bias. He was interested in history only at the point at which it escapes the reach of narrative. The history that actually counted in Blackstonian law was that of time immemorial; the history beyond the memory of man. This was the span of history within which natural law and customary law could somehow fuse into a single unit. To trace a point of origin is to identify a decision maker. Since Blackstone believed people operate with only a corrupted capacity for reason, he saw no ground to assume a convergence of the law of nature and the work of particular decision makers. Time immemorial was, accordingly, Blackstone’s answer to the corruption of reason.

Langdell reverses this set of assumptions. There is no longer any point at which a legal decision escapes the fallible character of human reason; there is no purity in an imagined point of origin beyond recorded time. Accordingly, the perfection of law as a system of reason depends not upon its origin, but upon its progressive development. The idea of systemic order no longer finds its paradigmatic expression in the static organism—Aristotle’s timeless form—but in the dynamic of evolution.

Langdell expresses the idea of an evolving legal system quite concisely in the preface to his first casebook—the first casebook in legal education:

Law, considered as a science, consists of certain principles or doctrines. . . . Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of

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