In one particularly provocative line in his famous study, the Structure of Scientific Revolutions, Thomas Kuhn declares that the academic disciplines of the natural sciences—far from being the domain of un-bigoted rational inquiry, as they are often portrayed—are in fact a "narrow and rigid education" to be compared at best to "orthodox theology." (That modifier "orthodox" is crucial to sustaining Kuhn's point: at the liberal divinity school I attended, after all, "theology" was taught in such a nebulous way that it could scarcely be described as even talking about god, let alone doing so in a way that was "narrow.")
Kuhn may be exaggerating for effect, and his point at any rate wasn't to impugn the rational validity of the sciences. Rather, it was to contrast the way in which episodes from the history of the sciences are treated in science class with the quite different picture that emerges from a more free-ranging examination of that history. When the history of science is discussed at all in science class, Kuhn relates, it is only to appear in the role of salient episodes—almost miniature morality tales—that show how a previous theory failed under test conditions and a new paradigm was established in its wake.
Kuhn argues that the real history of science—examined more capaciously and without the pre-existing goal of vindicating a particular paradigm—shows that scientific knowledge advances in a far more contingent and haphazard way than that. His famous discussion of how scientific revolutions do in fact take place—and the debate over whether his approach amounts to "mere relativism" or not—are not things I want to recapitulate here. My point is simply that one should be cautious about the way that history is introduced in non-historical subjects in order to vindicate the reigning orthodoxy.
It took me well into the second half of my first semester of law school to realize that something similar was happening in legal education. Law—far more than the natural sciences—purports to be a historical discipline (at least in common law jurisdictions). We are taught that there is a substratum of the law governing private relations in our country that was never written out in the form of statute. Instead, this law is found in the rules laid down as precedent, by innumerable judges, in innumerable law courts throughout the English-speaking world. The purpose of the 1L "doctrinal" law classes is to communicate the "rules" that have emerged organically over time from this inchoate process.
Legal history—to the extent it is invoked at all—is then introduced in order to vindicate each of these "rules" as it is laid before us. A rule such as the law of consideration in contracts, say, is illustrated by a case in which judges have explicated it and applied it to a concrete set of facts. The impression created is one that conforms with the theory of the common law we are taught: judges laid down these rules because they made sense as the most just way to resolve concrete disputes. The rules then became precedent, and were applied by other courts under the principle of stare decisis. The result is a relatively stable and coherent body of law that has persisted across the centuries.
It is only when one looks outside of the casebooks that one realizes that "legal history" here is being deployed in the same tendentious way as the history of science in Kuhn's description of the science classroom. The cases we are shown are not a random sampling of the jurisprudence on a given subject; they are a curated and pre-selected set of episodes that teach the value of the reigning paradigm. Each one functions as a morality fable. A given set of facts illustrates why we needed, say, the "doctrine of pre-existing duty." Wise judges derived this principle over the centuries, we are led to believe, because they faced innumerable similar sets of circumstances and realized that this doctrine was the only just and rational one to apply. The "rule" we are being taught is vindicated.
As the skeptical Grant Gilmore shows in his The Death of Contract, however, this fable bears no resemblance to how the rules actually emerged. In reality, a group of legal reformers who traced their intellectual paternity to Justice Holmes laid down these rules in the early twentieth century not because these were the ones that had emerged organically from the case law, but because they were the ones they believed ought to be the law.
To be sure, the reformers referenced some earlier cases in enunciated these rules for the textbooks. But in doing so, they were not just summarizing the empirical results of a study of precedent, the way a legal historian might. They were, to the contrary, selecting from among the cases; and very often the precedents they chose were not ones that had actually been particularly influential in their own day or over any prior courts. More troublingly still, as Gilmore shows, the Holmesian reformers often ignored the actual facts of the cases they were citing, and rewrote the judges' reasoning to conform to their own agenda.
The result was a great logical circle. The "rules" were said to derive from "precedent," according to the common law theory. Then, the precedent was sawed apart and reconstituted in order to justify the rule supposedly derived from it. Cases employing entirely different legal rationales were reinterpreted as enunciating a rule of "consideration." The doctrine of "preexisting duty" was derived from a case in admiralty law, the facts of which had nothing at all to do with the "hold-up game" the rule was supposedly designed to prevent.
We are in the realm of Kuhn's spurious usages of history. History is not being examined in its own right, but rather is being dragooned to justify a foreordained conclusion. Therefore, just as (or, perhaps, even more so than) in the sciences, what appears at first to be an open-ended pursuit of knowledge is actually being subtly railroaded toward a desired outcome.
Maybe (as with the sciences) this is all fine and inevitable. Leave it to the historians to study history in an open-ended way: the lawyers must study the law—and in order to study it, it is sometimes first necessary to create it. I'm not too concerned, and there may not be any better way to teach 1L law classes than in the "narrow and rigid" manner of "orthodox theology."
However, the foregoing does suggest that there is a vast substratum of precedent out there that does not in fact conform to the common law "rules" we are taught in law school (the ones that supposedly emerged organically from the courts, rather than from the theorists and textbook authors). Just as there is a host of discarded scientific paradigms known only to the historian of science, and which never get mentioned in a science classroom—phlogiston, uniformitarianism, and myriad others that Kuhn discusses at length—so too, there must be rules enunciated by prior law courts that never made it into the dominant twentieth century theories and the law school casebooks.
Gilmore tantalizingly hints as much. He refers to the existence of "case law undergrounds," in which courts have laid down rules wholly different from the ones accepted by Holmesian theorists, and reached outcomes in no way conformable to the "black letter law" of the textbooks (and of the "Restatements" that supposedly derive from the precedents, but which are really—as Gilmore shows—derived from the theorists). More intriguingly still, Gilmore notes that these subterranean reservoirs of esoteric legal knowledge are largely invisible. Because the indexing, digest, and "key" systems used to organize the precedents on the major legal search engines are all based on the Holmesian theorists and the Restatements derived from them, they do not often enable one to track down the legal rulings that refuse to conform to the established paradigm.
One is confronted therefore with the existence of "anomalies" in the case law comparable to the anomalies that sometimes overthrow scientific theories. These are the opinions that exist in the legal reporters but which no one has incorporated into any larger rule or theoretical structure. They therefore have something of the same status as what Charles Fort called "the damned"—by which he meant those facts and incidents that are duly witnessed and recorded in the newspapers and scientific journals, but which have nonetheless been rejected and stigmatized as false for failing to conform to the reigning orthodoxies.
And if there is delight to be found (and I think there is) in tracking down Fortean anomalies in the natural sciences, so too must there be value and good fun in the practice of what we might call a "Fortean jurisprudence." It is time someone undertook a study of the damned, in a case law context. Someone ought to seek out and catalog the cases that didn't make the cut. The ones secreted away in the reporters that exist in their own right, but which could never be made to conform to the theorists' rules, and which have therefore remained hidden up to the present.
What's that you say? It should be me? If I am so hot on the idea, I should undertake such a study myself? Very well. You needn't ask me twice. Once I get around to it someday, perhaps this blog post may serve as the introduction.
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