Table Of ContentFormalism and Pragmatism in American Law
The Social Sciences of Practice
The History and Theory of Legal Practice
Series Editor
Philip C. C. Huang
(University of California, Los Angeles and Renmin University of China)
VOLUME 2
The titles published in this series are listed at brill.com/ssop
Formalism and Pragmatism
in American Law
By
Thomas C. Grey
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Grey, Thomas C., author.
Formalism and pragmatism in American law / by Thomas C. Grey.
pages cm. — (The social sciences of practice : the history and theory of legal practice ; v. 2)
Includes bibliographical references.
ISBN 978-90-04-27288-0 (hardback : alk. paper) — ISBN 978-90-04-27289-7 (e-book) 1. Law—United
States—Philosophy. 2. Legal positivism. 3. Realism. 4. Pragmatism. I. Title.
KF380.G74 2014
340’.1—dc23
2014006671
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For more information, please see brill.com/brill-typeface.
issn 2214-952X
isbn 978 90 04 27288 0 (hardback)
isbn 978 90 04 27289 7 (e-book)
Copyright 2014 by Koninklijke Brill nv, Leiden, The Netherlands.
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Contents
Author’s Biography vi
Series Foreword vii
Introduction 1
1 Do We Have an Unwritten Constitution? 12
The Pure Interpretive Model 12
Beyond Interpretation 15
The Implications of the Pure Interpretive Model 20
Beyond Interpretation: A Program of Inquiry 25
Conclusion 29
2 The Disintegration of Property 30
3 Langdell’s Orthodoxy 46
4 Holmes and Legal Pragmatism 100
The Priority of Practice 107
Law as Experience 121
Law as Logic 133
Law as Prediction 145
Holmes Divided: The Spectator at the Storm Center 157
The End-Means Continuum and the Lawyer’s Work 174
Appendix: Holmes and the Pragmatists 189
5 Accidental Torts 198
What is a Tort? 199
A Proper Subject? 202
The Structure and Domain of Tort Law 228
Conclusion 254
Bibliography 258
Index of Terms 260
Author’s Biography
Thomas C. Grey, Sweitzer Professor of Law, Emeritus, at Stanford Law School, is a lead-
ing legal theorist and historian of the development of modern American legal thought.
He has written extensively on the development of such strains of legal thought as prag-
matism, formalism, and realism with particular attention to the jurisprudence of
Oliver Wendell Holmes Jr. Earlier in his career, he wrote significant articles on consti-
tutional law, history, and theory, with special emphasis on the “unwritten constitution”
of unenumerated constitutional rights. He also taught torts to first-year students for
more than 30 years before his retirement in 2007.
Professor Grey is a fellow of the American Academy of Arts and Sciences and is the
recipient of an honorary law doctorate from Chicago-Kent College of Law. Before join-
ing the Stanford Law School faculty in 1971, he served as a clerk to Justice Thurgood
Marshall of the U.S. Supreme Court and Judge J. Skelly Wright of the U.S. Court of
Appeals for the District of Columbia Circuit.
Series Foreword
黄宗智
Philip C. C. Huang
The social sciences in China and the U.S. have come to be rather heavily dominated by
abstract theorizing divorced from practical realities. What this series proposes to
emphasize instead is actual economic and legal, and historical and social practices,
and the theoretical logics evidenced therein. The theoretical works included in the
series proceed not from theory to practice, but rather from practice to theory; the
empirical studies included are ones of important theoretical implications.
We propose to include selected major works in each of five sub-series, to be pub-
lished simultaneously in both English and Chinese, or, where the work is already avail-
able in one language (English or Chinese), then its translation into the other. The five
sub-series include one each in the history and theory of legal practice, the economic
history and economics of practice, and the social history and sociology of practice. The
fourth series consists of broader cross-disciplinary works in historical political econ-
omy, in the tradition of the likes of Adam Smith, Karl Marx, and Max Weber. The fifth
series includes major innovations evident in Chinese economic, legal, social, and
political-economic practices that have yet to receive full theoretical elaboration.
The typical social science study today proceeds from a certain theoretical position,
and asks a question derived from that particular perspective, with the intention of
proving (or, sometimes, disproving) the posited “hypothesis.” This may be done explic-
itly or implicitly, but always with a host of assumptions, often unspoken, even
unconscious.
Since almost all existing social science theories have originated from the West, such
an epistemological approach often comes with the belief that the Western experience
(e.g., capitalism and democracy and formalist law) and the theoretical abstractions
therefrom are universally applicable. When applied to the developing non-Western
world, the research can become mainly a matter of finding inadequacies in the subject
country or region, often with implicit or explicit advocacy for development in the
direction of the Western “model.” This is most evident, for example, in the disciplines
of economics and jurisprudence, the most formalistic and ideological of the “modern”
disciplines.
Our “social sciences of practice,” however, calls for inverting that epistemological
process, to proceed not from (Western-originated) theory (and hypotheses derived
therefrom), but rather from the practical realities of the subject country. Non-Western
countries, faced with the economic-military as well as cultural-intellectual expansion
of the West in modern times, have been placed unavoidably into a historical situation
of conflicting tugs between tradition and (Western) “modernity,” the indigenous and
viii series foreword
the imported, East and West. What exist in practice are almost of necessity paradoxical
when seen from the perspective of Western theory.
We start with practice because, unlike theory, practice is anchored in the subject
country’s own social-economic and political contexts, perspectives, and discourses.
And problems seen through practice rather than theory are far more likely to be of
indigenous concern to the subject country itself rather than just theoretical / episte-
mological concern to the West.
Practice, in fact, tells first and foremost about paradoxes—or the co-existence of
pairs of seemingly contradictory and mutually exclusive realities that are both true
and real, like (globalized) commercialization without development, or capitalism
without democracy, or Westernized formalist legal codes without their judicial prac-
tice. It challenges the very validity of commonly used (Western) theories that presup-
pose a cause and effect relationship between those, and therefore cries out for new
theoretical formulations. In addition, unlike theory, which tends to be dominated by
deductive / formal (and Western-originated) logic, and hence insists on logical consis-
tency, practice readily accommodates the seemingly contradictory. It demands con-
ceptualization and theorizing in terms of its own logic—such as, for example, China’s
“feeling for the stones while crossing the river.”
The perspective from practice is one that calls for taking historical process as the
point of departure, and for theoretical formulations therefrom. Such practical and
theoretical concerns do not mean, however, the simple rejection or disregard of
Western social science theory, but rather deliberate dialoguing with existing theory,
and also deliberate borrowing from and developing the West’s multiple alternative
theoretical traditions. Such research can in fact highlight the need to combine
“mainstream” formalist theoretical traditions with alternative Western theoretical tra-
ditions to conceptualize Western experience itself—e.g., combining the jurispruden-
tial traditions of “classical orthodoxy” with legal pragmatism (and Marxism and
postmodernism) to understand the past and present of American law, or the Smithian
with the Marxist and substantivist to understand the economic history of the West.
Better yet, to uncover the operative theoretical logics of those combinations that exist
in practice and to search for ways to go beyond the either/or juxtaposition of binaries
that are seen to be mutually exclusive.
Our series proposes to include such works in economics, law, sociology, and politi-
cal economy, as well as works on such Chinese innovations that have already been
made in practice but have yet to receive full theoretical formulation and attention. Our
goal is to develop a series of works guided by problematics and theoretical conceptions
that are better suited to Chinese concerns and realities than typical “mainstream”
formalist studies.
Introduction
This book was launched when Prof. Philip Huang contacted me offering to
arrange translation and Chinese publication of a selection of my articles. I did
wonder whether my writings, mostly about American law, could have much to
say to a Chinese audience. But given Prof. Huang’s intimate involvement with
both legal systems throughout his distinguished scholarly career, I accepted his
flattering judgment that they might, and I am very grateful to him for making
the necessary arrangements. The result is this selection from my writings, for
which I agreed to write this introduction.
Prof. Huang’s 2007 article “Whither Chinese Law?”1 helped me understand
why he thinks Chinese law students and legal academics might be interested
in these writings of mine. That article provides a lively summary of the struggle
between Westernizers and proponents of indigenous tradition in the course
of Chinese jurisprudence over the last century, illustrated by a number of
instructive case studies. It then answers the question posed by its title by urg-
ing acceptance of the coexistence of the competing schools rather than the
triumph of any one of them as the best way into the future for Chinese law. In
support of this recommendation, Prof. Huang offers an analogy to what he sees
as a comparable development in modern American legal thought and prac-
tice. “If the essence of modernity in American law is indeed the coexistence
of its classical orthodoxy with legal pragmatism, then the essence of China’s
modernity lies perhaps in the coexistence of Western formalism with Chinese
practical moralism.”2
Much of my own scholarly career has been devoted to writing about clas-
sical orthodoxy and pragmatism in 19th and 20th century American legal
thought. In two of the articles included here, “Langdell’s Orthodoxy” (1983)
and “Holmes and Legal Pragmatism” (1989),3 I have tried to provide accounts
of these jurisprudential tendencies that were accurate and as sympathetic
as possible. Viewed as tendencies, they are readily seen in tension with each
other, so that the history of modern American legal thought is a narrative of
their ongoing struggle.
1 33 Modern China 1 (2007).
2 Id. at 29.
3 1983, 1989. See Bibliography of Principal Publications, at end, where articles are identified by
bolded dates, followed by full citations. I use the bolded dates as citations in these footnotes,
inviting readers seeking original sources to look to the Bibliography.
© koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004�7�897_���
2 introduction
At the same time, I argue that legal pragmatism, understood as the theory
of law articulated by Oliver Wendell Holmes Jr., in harmony with the general
pragmatist philosophy of John Dewey, is a jurisprudence that supports what
Prof. Huang describes as the “essence” of modern American law—that is, the
“coexistence” of the classical tendency with the practical and flexible prag-
matic tendency. To avoid terminological confusion, I prefer to keep the term
“legal pragmatism” for this overarching jurisprudential account, which makes
space for both of the competing tendencies. I label the tendencies them-
selves formalist and legal realist. Classical orthodoxy is then a jurisprudence
that attempts to subject the whole domain of law to the formalist tendency.
(I believe Chinese law may have felt the influence of something like this juris-
prudence at the time of the adoption of the German Civil Code, one of the
great embodiments of classical European legal science.) In my view, such a
universal formalism cannot be a successful general account of law, though the
tendency which animates it, the drive to make law coherent and predictable, is
a necessary aspect of any successful legal system.
The heart of legal pragmatism as I understand it, following Holmes, is a view
of law as an enterprise that is practical in two senses. First, it is “constituted
of practices—contextual, situated, rooted in shared expectations;” second, it
is “instrumental, a means for achieving socially desired ends, and available to
be adapted to their service.”4 The first sense, emphasizing practice, suggests
the historical school of jurisprudence; the second, emphasizing practicality,
suggests the analytical-utilitarian school. These were regarded as rival juris-
prudential approaches in the 19th century, but it was Holmes’s insight that
they were partners rather than rivals, each stating important but partial truths
about law. Thus Holmes promoted legal pragmatism as a “both-and” rather
than an “either-or” theory—a synthesis of historical and analytical jurispru-
dence, law as both guided by past practice and looking forward in a practical
spirit to future consequences.
The historical school urged that law is founded in customs and community
social norms, which represent the collective wisdom of experience, and are
unlikely to be improved by rationalist schemes of legal reconstruction. The
analytical school saw law as the articulate command of a present legislative
sovereign, with the power and the duty to shake off the dead hand of the past
and consciously shape law to achieve the present and future greatest happi-
ness of the greatest number. A characteristic aphorism of Holmes’s captured
his synthesis of the two approaches, emphasizing the descriptive power of the
historical school and the normative force of analytical utilitarianism: “historic
4 1989 at 805.
