The Dance of History

Yale Journal of Law & the Humanities Volume 8 | Issue 2 Article 6 January 1996 The Dance of History Christopher Shannon Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Christopher Shannon, The Dance of History, 8 Yale J.L. & Human. (1996). Available at: https://digitalcommons.law.yale.edu/yjlh/vol8/iss2/6 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Shannon: The Dance of History Book Reviews The Dance of History John Henry Schlegel, American Legal Realism and Empirical Social Science. Chapel Hill: University of North Carolina Press, 1995. Pp. xii, 418. $55.00 Christopher Shannon* John Henry Schlegel has written a book that attempts to explain why law has not followed the path of other academic disciplines in adopting a natural-science model of empirical inquiry. He convincingly argues that by the time legal academics confronted empirical science in the guise of Legal Realism during the 1920's, American legal education had already undergone a kind of scientific revolution: the adoption in the late nineteenth century of the Langdellian caselaw method, a deductive approach that saw the law library as a sufficient "field" for legal research. This intellectual practice, and the * Christopher Shannon has taught American intellectual history at the University of Iowa and Yale University. He is the author of Conspicuous Criticism: Tradition, the Individualand Culture in American Social Thought from Veblen to Mills (Baltimore: Johns Hopkins University Press 1996). He is currently working on a study of the Cold War origins of multiculturalism. Published by Yale Law School Legal Scholarship Repository, 1996 1 Yale Journal of Law & the Humanities, Vol. 8, Iss. 2 [1996], Art. 6 Yale Journal of Law & the Humanities [Vol. 8: 495 professional identity that grew up around it, has made empirical research a "square wheel" in American legal education! Schlegel offers this contextual explanation for the marginality of Realism as "an invitation to open a discussion about what intellectual history... is and has become as this century closes" (260). Following Realism's own move from legal texts to social contexts, Schlegel insists that "rather than a history of ideas, intellectual history needs to be the history of intellectuals, people who do things with ideas" (5). In the spirit of this invitation, my Review focuses more on Schlegel's approach to Realism than on his account of it. Schlegel dismisses the history of ideas as "an essentially empty exercise," and calls on historians to give up "the dance of reason" in order to embrace "the whole dance of life" (4, 261). Schlegel's book, however, reveals this move from text to context to be nothing more than the dance of history, an essentially empty exercise in causal explanation. In this Essay, I examine Schlegel's book not only as an account of American Legal Realism, but also as a symptom of a fundamental structural incoherence in the conception of intellectual history as an academic discipline. American Legal Realism is the legacy of a much broader intellectual movement that Morton White long ago dubbed "the revolt against formalism." In his classic Social Thought in America: The Revolt Against Formalism, White characterized Gilded Age and Progressive Era intellectual life in terms of a general reorientation from a deductive rationalism to an inductive empiricism.2 In philosophy, timeless verities gave way to a notion of historically relative truths; in social theory, contractarian individualism gave way to cultural organicism; and in economics, laissez-faire capitalism gave way to a greater acceptance of government regulation. Schlegel's account of Realism employs all the tropes of White's revolt against formalism. Schlegel presents "classical" legal formalism as "a way of organizing and thus understanding the world of common and constitutional law in terms of hierarchically ordered, binary categories" (31). Much of classical legal thought directed itself toward the maintenance of one particular binary opposition, individual freedom versus government control; moreover, legal scholars argued this public/private distinction in terms of the "essential character" of an activity rather than mere expediency (31-32). Against this concern 1. John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995), 252. Subsequent page number citations are enclosed in parentheses. 2. Morton Gabriel White, Social Thought in America: The Revolt Against Formalism (New York: Viking Press, 1949). https://digitalcommons.law.yale.edu/yjlh/vol8/iss2/6 2 Shannon: The Dance of History 19961 Shannon for the "teleological fitness" of legal decisions, Realism sought to recast legal thought in terms of instrumental reason (49). Realists saw law as "less a matter of the invariable application of norms ... and more a matter of equitable, and thus variable, discretion on the part of officials of the state" (44). Legal reasoning was to yield not sacred "doctrines" but instrumental "rules," which were to be "organized not with reference to principles but rather with respect to considerations of policy, of social advantage" (226). Like the Progressive law reformers who predated Realism proper, Realists wanted "to see the law in action so as to reform the law in the books," and this instrumental reformism "provided the reason for engaging in empirical legal research" (229). Schlegel's account of the general intellectual orientation of Realism confirms the work of previous scholars, but adds little. Schlegel attacks previous studies as too "rooted in the history-of-ideas tradition," but then presents the received wisdom, the official "story" of Realism that he claims to be revising, in social-historical terms (7). The story "as the story is usually told" seems very much a story of people and institutions (15). The conventional account, as set forth by Schlegel, goes something like this. Legal Realism began in the years following World War I as a revolt against traditional legal education as practiced in American universities. Nicholas Murray Butler, the president of Columbia University, criticized legal education in America for being "too narrow and technical," too divorced from ethics and intellectual developments in the new social sciences (15). Prompted by these criticisms, Harlan Fiske Stone, dean of the Columbia Law School, appointed a committee to investigate the possibility of reforming legal education. A key member of this committee, Herman Oliphant, advocated a "functional" approach to the study of law, an approach that stressed the i (...truncated)