Joel bishop's orthodoxy

Law and History Review

Volumn 13, Issue 2, 1995, Pages 215-259

  Siegel, Stephen A ^a  

^a DEPAUL UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 70450017530     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/743860     Document Type: Article

References (429)

1. J. Bishop, Joel, Joel Prentiss Bishop, 1885, 20, 321-322, cent L. J. quoting letter from the University informing Bishop of his award
2. F. Rogger, Franziska, 1993, University Archivist, Universitat Bern (July 16 indicating Bishop was the only American honoree for any degree
3. Bishop, L.J., cent, as a Law Writer, 1885, 21, 81, Note Mr quoting with approval The Chicago Legal News); Bishop, supra note 1, at 321
4. supra, 853-854, Note note 1, at
5. Id, at 854
6. J. Bishop’ or Joel w/2 Bishop &date (after 1989), Bishop, See infra, 18, He is also a standard reference for scholars and practitioners seeking to determine nineteenth-century family law, criminal law, and criminal procedure doctrines. A search in the Westlaw text and periodicals data base, using the parameters produced forty-nine articles using his work, chiefly in the criminal and family law areas. The same search in Westlaw's United States Supreme Court data base produced ten cases drawing from his work in criminal procedure, criminal law and torts
7. classical, 1930, This article employs the term, to describe the dominant strand of American legal thought between 1850 and, For a generation, scholars used the term “legal formalism” to describe this strand, and some scholars still do. I regard “classicism” and “formalism” as interchangeable terms. I prefer “classicism” because commentators generally employed “formalism” in analyzing late-nineteenth-century private law thought. Scholars who speak of “classical legal thought” tend to study both private and public law jurisprudence, emphasizing their interconnection. See infra text accompanying note 166. While this study focuses on a private law scholar, I adopt “classical” as the appropriate usage because I agree that late-nineteenth-century public and private law were two aspects of a unified whole.
8. A.W.B. Simpson, U.CHI. L.REV., 1981, 48, 632-674, 677 recognizing Bishop as a precursor to Langdell
9. A HISTORY OF AMERICAN LAW, L. Friedman, Lawrence, 1985, 611-619, See, e.g. 2d ed.
10. T. Grey, Thomas, U. PITT. L. REV., 1983, 1, The studies that cast a wider net still treat classicism as a monolithic project dominated by, or typified by, developments at Harvard.
11. THE TRANSFORMATION OF AMERICAN LAW, M. Horwitz, Morton, 1992, 13–16, 35-39, See, e.g. 1870–1960, at
12. HORWITZ, supra, See, e.g. note 8
13. THE POLITICAL CULTURE OF AMERICAN WHIGS, D. HOWE, DANIEL, 1979, 210–238
14. SUPREME COURT JUSTICE JOSEPH STORY, K. NEWMYER, KENT, 1985
15. THE ORIGINAL MISUNDERSTANDING, S. PRESSER, STEPHEN, 1991
16. LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT, W. FORBATH, WILLIAM, 1991, See, e.g.
17. infra, 150, 156-158, See text accompanying notes
18. Bishop, supra, 321, The remarks in the following paragraphs are drawn principally from note 1, at
19. C. Bishop, Charles, J.P. Bishop, Joel Prentiss, AM. L. REV. I, 1902, 36, LL.D
20. DICTIONARY OF AMERICAN BIOGRAPHY, H.W. Howard Knot, J.P. Bishop, Joel Prentiss, 1929, Other sources are 2
21. J.P. Bishop, Joel Prentiss, NAT. CORP. REPTR., 1901, 326, Note, Death of These sources will not be cited further
22. Bishop, supra, 321, note 1, at
23. COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, J. BISHOP, JOEL, 1852
24. 1–2 NEW COMMENTARIES ON MARRIAGE, DIVORCE, AND SEPARATION, Bishop, 1891, eventually expanded this work to two volumes and saw it through seven thoroughly revised editions. The seventh edition was retitled
25. COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE, J. BISHOP, JOEL, 1880, 3d ed.
26. Bishop, 1852, After virtually abandoned involvement in social causes, writing only a few pamphlets and speeches on the issues of his time
27. THOUGHTS FOR THESE TIMES, J. BISHOP, JOEL, 1863, See
28. SECESSION AND SLAVERY, J. BISHOP, JOEL, 1864
29. STRIKES AND THEIR RELATED QUESTIONS, J. BISHOP, JOEL, 1886
30. J. Bishop, Joel, The Common Law as a System of Reasoning, 1888, 22, 1, AM. L. REV republished as joel bishop, the common law and codification (1888
31. NEW CRIMINAL PROCEDURE, J. BISHOP, JOEL, 1913, 2d ed.
32. THE FIRST BOOK OF THE LAW, J. BISHOP, JOEL, 1868
33. Bishop, In addition to this book published a series of short articles concerning the role of principles in the law
34. J. Bishop, Joel, Law in the United States, 1855, 3, 60, 185, 252, 312, 381, 505, 632, 759, pts. 1–8 AM. L. REG.
35. 1–2 JOEL BISHOP, COMMENTARIES ON THE LAW OF MARRIED WOMEN, hereinafter Principles]. In addition to his work on marriage and divorce, see supra he wrote 1871–1875) on the common law and the rapidly developing statutory reforms of that area
36. 1–2 JOEL BISHOP, COMMENTARIES ON THE CRIMINAL LAW, Bishop's, work on criminal law 1856–58) went through eight thoroughly revised editions
37. 1–2 JOEL BISHOP, NEW COMMENTARIES ON THE CRIMINAL LAW, 1892, The eighth edition was retitled
38. J. Zane, John, C. Zollmann, Carl, 1923, This work was sufficiently popular for another edition to be published twenty-two years after his death. Id.
39. 1–2 JOEL BISHOP, COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE, 1866, His work on criminal procedure went through four thoroughly revised editions
40. 1–2 JOEL BISHOP, NEW COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE, The fourth edition was retitled 1895–96
41. H.C. Underhill, 1913, This work was sufficiently popular for another edition to be published twelve years after his death. Id.
42. JOEL BISHOP, COMMENTARIES ON THE WRITTEN LAWS AND THEIR INTERPRETATION, Bishop's, 1882, For work on statutory interpretation see
43. COMMENTARIES ON THE LAW OF CONTRACTS, J. BISHOP, JOEL, 1887, for contract law SEE
44. M.C. Early, 1907, hereinafter Contracts]. This work was sufficiently popular for another edition to be published seven years after his death. Id.
45. JOEL BISHOP, THE DOCTRINES OF THE LAW OF CONTRACTS, Bishop's, 1878, main work on contracts was an expansion of an earlier volume
46. COMMENTARIES ON THE NON-CONTRACT LAW, J. BISHOP, JOEL, 1889, For tort law see
47. wrought a revolution, Bishop, supra, 13, BISHOP, NEW CRIMINAL note 17, at
48. NEW MARRIAGE, BISHOP, supra, See also 1 note 14, at v (describing judicial conformity to his views). In family law, Bishop's opinion may be close to the mark
49. FAMILY LAW: CASES, MATERIALS AND PROBLEMS, P. SWISHER, PETER, H. MILLER, W. WESTON, WILLIAM, 1990, 25, See, e.g.
50. MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA, Bishop, 1985, 21-24, is discussed, for example, in 89–90, 144–45, 291–92
51. NEW MARRIAGE, BISHOP, supra, 486-3, See, e.g., 1 note 14, at
52. C. Bishop, Charles, supra, 7, note 12, at Book Review, 17 AM. L. REV. 580, 583 (1883
53. supra, 1893, 70, 72, Book Review, 27 text accompanying notes 1–5 note 18 and infra notes
54. NEW MARRIAGE, BISHOP, supra, 27, See, e.g., 1 note 14, at
55. A TREATISE ON THE LAW OF PERSONAL PROPERTY, J. SCHOULER, JAMES, 1873, 5
56. C. Bishop, Charles, supra, 1-9, note 12, at
57. 1893, 947, Book Review, 27 AM. L. REV. 937 supra text accompanying note 3.
58. Bishop's, AM. L. REV., 1885, 19, 463-465, lessen attractive qualities: his inordinate vanity, conceit and self-righteousness. See Book Review Book Review, 27 AM. L. REV. 937 938 1893
59. D. Langdell, Dean, infra, 171, 86, Harvard scholars were fairly taciturn about their jurisprudence for example, left only a few short jurisprudential musings
60. S. Williston, Samuel, despite a multi-volume corpus of writings, only treated legal philosophy in a superficial discussion in his autobiography
61. LIFE AND LAW, S. WIL-LISTON, SAMUEL, 1940, 198–216
62. T. Grey's, Thomas, supra, marvelous reconstruction of the Harvard Law School's strand of classicism, in Grey note 8, is so masterful because he had so little writing from which to draw.
63. J.C. Gray, John Chipman, J.H. Beale, John Henry, were something of exceptions to these comments
64. Bishop, supra, 17, note accompanying text, most of his treatises contain lengthy prefaces addressing jurisprudential concerns. He also occasionally inserted jurisprudential discussions into the treatises’ text
65. CRIMINAL, BISHOP, supra, 1-13, 2d ed. note 17, at
66. NON-CONTRACT, BISHOP, supra, 33-37, note 17, at 385 n.3,617–39.
67. HORWITZ, supra, 9-63, I draw my understanding of classical legal thought from note 8, at
68. Grey, supra, 8, note
69. M. Hoeflich, Michael, AM. J. LEG. HIST., 1986, 30, 95-96, 95 119–21
70. D. Kennedy, Duncan, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1980, 3, 1850–1940, 3 RES. L. &Soc.
71. R. Pound, Roscoe, Mechanical Jurisprudence, 1908, 8, 605, COLUM. L. REV.
72. S. Siegel, Stephen, Lochner Era Jurisprudence and the American Constitutional Tradition, 1991, 70, N.C. L. rev. 1
73. Grey, supra, 5, See, e.g. note 8, at
74. id., 16-20, See, e.g. at
75. FRIEDMAN, supra, 613-614, note 8, at 617–18
76. Grey, supra, 10-11, note 8, at 13, 16–20, 24–28
77. Hoeflich, supra, 119-121, note 25, at
78. J. CHIPMAN GRAY, JOHN, THE RULE AGAINST PERPETUITIES, 1886
79. S. Siegel, Stephen, John Chipman Gray, Legal Formalism, and the Tcansformation of Perpetuities Law, 1982, 439, 439-455, This analysis of Gray's treatise is drawn from
80. Gray, supra, note 30, at ix
81. Siegel, supra, note 30, at 440–46, 449–53
82. Id., 454, at
83. J. Fox, Jabez, The Criticism of Cases, 1892, 6, 195-200, HARV. L. REV.
84. J.C. Gray, John Chipman, Remoteness of Charitable Gifts, 1894, 406-408, 7 HARV. L. REV.
85. Id., 408, at 407
86. THE NATURE AND SOURCES OF LAW, J.C. GRAY, JOHN CHIPMAN, 1921, 101, 225, See 2d ed.
87. GRAY, supra, note 30, at v. Significantly, Gray acknowledged that legal and natural science were dissimilar in that a mistaken theory of a legal scientist could become the truth
88. NATURE, GRAY, supra, 101, 225, at
89. S. Siegel, Stephen, Historism in Late Nineteenth-Century Constitutional Thought, 1990, 1431-1437, 1515-1547, On the classicists’ claim to study law as positive scientists see WIS. L. REV.
90. Hoeflich, supra, 119-121, note 25, at
91. 1 BISHOP, NEW MARRIAGE, supra, See, e.g., note 14, at iii-iv, xxi
92. FIRST, BISHOP, supra, 138-142, note 17, at
93. NON-CONTRACT, BISHOP, supra, 35-36, note 17, at
94. PROTESTANTS IN AN AGE OF SCIENCE: THE BACONIAN IDEAL AND ANTEBELLUM RELIGIOUS THOUGHT, T. BOZEMAN, THEODORE, 1977, 72-74, See, e.g. 3–31
95. SCIENCE AND RELIGION IN AMERICA, H. HOVENKAMP, HERBERT, 1978, 23-38, 1800–1860, at
96. The Relation of the Study of Jurisprudence to the Origin and Progress of the Baconian Philosophy, 1848, 6, 548, March NEW ENGLANDER
97. NEW MARRIAGE, BISHOP, supra, On Bishop's belief in the power of Baconian method and empirical observation, see 1 at iv, xix
98. BISHOP, supra, 6th ed. note 14, at xiii
99. PROCEDURE, BISHOP, supra, 3d ed. note 17, at viii-xi
100. NEW MARRIAGE, BISHOP, supra, See, e.g., 1 note 14, at xxv-xxix;
101. CRIMINAL, BISHOP, supra, 2d ed. note 17, at ix
102. CONTRACTS, BISHOP, supra, note 17, at x, xi
103. FIRST, BISHOP, supra, 107-108, note 17, at
104. PROCEDURE, BISHOP, supra, 718, note 17, at
105. PROCEDURE, BISHOP, supra, 3d ed. note 17, at xiii
106. WOMEN, BISHOP, supra, note 17, at vi-vii
107. Siegel, supra, 1465-1469, note 39, at Bishop, in pursuing his positivist stand, on occasion did point out doctrines in which American law differed from morally correct law
108. CRIMINAL, BISHOP, supra, 7, 1 note 17, at discussing caveat emptor
109. CRIMINAL, BISHOP, supra, 2d ed. note 17, at 3
110. FIRST, BISHOP, supra, note 17, at 108
111. PROCEDURE, BISHOP, supra, 717-718, note 17, at positivist analysis of appropriate legal argument). Bishop's disquisitions on separating law and morals must be read with the caveat that he thought moral principles were part of the legal system's principles. See infra text accompanying notes 84–91
112. O.W. Holmes, Oliver Wendell, The Path of the Law, 1897, 10 harv. L. rev. 457, 457, 458, 461, 465
113. HORWITZ, supra, 53-56, 59-60, note 8, at 140
114. is something different from what is decided by the courts…, that it is a system of reason… which may or may not coincide with the decisions, Holmes's, supra, In view, a prediction theory of law necessitated rejection of the classical view that law, Holmes at 460
115. Horwitz, supra, 140, at
116. system of reason, Bishop, 186, 88-91, however, argued that the prediction theory necessitated rejection of the view that the law was what courts had decided. To him, it counseled adoption of the view. See infra text accompanying notes
117. CONTRACTS, BISHOP, supra, note 17, at x
118. MARRIAGE, BISHOP, supra, See also note 14, at vii
119. PROCEDURE, BISHOP, supra, 703, 737-738, note 17, at
120. CRIMINAL, BISHOP, supra, 21, 4th ed. note 17, at
121. CONTRACTS, BISHOP, supra, note 17, at x
122. FIRST, BISHOP, supra, note 17, at 127, 141–42
123. Holmes, supra, 478, Holmes and Bishop also agreed that the great legal scholar wrote for and achieved more influence on the future than on the present. note 44, at
124. PROCEDURE, BISHOP, supra, 3d ed. note 17, at v
125. MARRIAGE, BISHOP, supra, 6th ed. note 14
126. NON-CONTRACT, BISHOP, supra, 33-35, See, e.g. note 17, at
127. Bishop, Principles, 186-2, supra note 17, at
128. Bishop, Principles, 253, pt. 3), supra note 17, at
129. Bishop, Principles, 382, pt. 5), supra note 17, at
130. THE COMMON LAW, O.W. HOLMES, OLIVER WENDELL, 1881, 1, 127
131. BISHOP, supra, 127, 141-142, FIRST note 17, at
132. O.W. Holmes, Oliver Wendell, Codes, and the Arrangement of the Law, 1870, 1, 5 AM. L. REV.
133. HOLMES, supra, 127, 77-78, note 46, at
134. NEW MARRIAGE, BISHOP, supra, 289, Sometimes Bishop says the law begins with popular customs which the courts adopt. But he depicts customs as discrete decisions about proper behavior and not as conscious applications of abstract principles or theories. See, e.g. note 14, at
135. CONTRACTS, BISHOP, supra, 171, note 17, at
136. NON-CONTRACT, BISHOP, supra, 612-613, note 17, at
137. WOMEN, BISHOP, supra, 674-675, note 17, at
138. It sometimes happens that the facts which are presented to the practitioner or the court are the same which have transpired and been passed upon before. But this can be only when the parties have dropped out something from their recital because of an instinctive feeling that it is unimportant. In truth, no two sets of facts were ever absolutely identical, Bishop, System, supra, 4-5, As Bishop says note 15, at
139. PROCEDURE, BISHOP, supra, 703-705, 1 note 17, at 708–09
140. Bishop, System, supra, 4-5, note 15, at 8–9
141. J. Bishop, Joel, The Elements Distinguishing the Successful From the Ordinary Legal Practitioner, and What They Suggest, 1883, 80, 85, 17 AM. L. REV.
142. BISHOP, supra, 253, 286-287, FIRST note 17, at
143. MARRIAGE, BISHOP, supra, 6th ed. note 14, at xvi-xxiv
144. NEW MARRIAGE, BISHOP, supra, 25, See, e.g., 1 note 14, at
145. PROCEDURE, BISHOP, supra, 704-705, note 17, at
146. Bishop, supra, 253, pt. 3 note 17, at
147. infra, 75-77, These presuppositions are discussed text accompanying notes
148. A.V. Lindsell, Adams V., 681, B. &Ald. 106 E.R. 250 (K.B. 1818
149. CONTRACTS, BISHOP, supra, 123-124, note 17, at
150. CONTRACTS, BISHOP, supra, 14-23, An example of a legal principle is that unsealed, executory contracts require consideration, and that consideration is note 17, at
151. FIRST, BISHOP, supra, 77-95, note 17, at 139–42
152. Bishop, infra, acknowledged that jurists derive legal principles from a variety of sources beyond judicial decisions. See text accompanying note 87. Their studies center on precedent, however, because that is the most common source of law and because it often represents a consideration of the other sources
153. Bishop, supra, 632, 633, pt. note 17, at
154. Bishop, Elements, supra, 81, note 49, at
155. FIRST, BISHOP, supra, 144-145, note 17, at
156. NEW CRIMINAL, BISHOP, supra, 18, note 17, at
157. Bishop, supra, 634-635, note 17, at infra text accompanying note 139
158. T. Grey, Thomas, supra, 12-37, note 8, at I agree with Grey but do not adopt his terminology here
159. Bishop, Elements, supra, 93, See, e.g. note 49, at
160. NEW MARRIAGE, BISHOP, supra, note 14, at vi-viii, xxii-xxiv
161. NON-CONTRACT, BISHOP, supra, 5, 6, note 17, at Bishop's discussion was a stock argument in the nineteenth century. Despite its weakness to twentieth-century legalists, it must be noted that no less an intellect than Justice Holmes adopted a version of it, at least in his early career
162. HOLMES, supra, 95-96, note 46, at grounding the argument in public policy
163. CRIMINAL, BISHOP, 25-26, 2d ed.)supra note 17, at 30, 32–33
164. FIRST, BISHOP, supra, 87-88, note 17, at
165. CRIMINAL LAW, BISHOP, 32, 2d ed.)supra note 17, at
166. Bishop's, id., 69-70, classical style of analysis of both private and public law issues, see at
167. NEW MARRIAGE, BISHOP, supra, 485-486, note 14, at xxiii-xiv
168. Bishop, supra, 312-314, pt. note 17, at
169. FIRST, BISHOP, supra, 45-46, note 17, at 86–103
170. THOUGHTS, BISHOP, supra, 20, note 15, at
171. SECESSION, BISHOP, supra, note 15, at iv
172. FIRST, BISHOP, supra, 88, note 17, at
173. Bishop, Elements, supra, 92, See also note 49, at
174. Bishop, Principles, 186, pt. supra note 17, at
175. Bishop, Principles, 252, pt. supra note 17, at
176. PROCEDURE, BISHOP, supra, 719, note 17, at
177. WOMEN, BISHOP, supra, 8, 3-6, note 17, at
178. WRITTEN, BISHOP, supra, 3, note 17, at
179. PROCEDURE, BISHOP, Bishop did not claim that all points were clear, and he thought treatise writers were obliged to show ambiguity when it was so. See, e.g., 1 3d ed.), supra note 17, at xiii-xiv
180. FIRST, BISHOP, supra, 48, 55, note 17, at See also id. at
181. PROCEDURE, BISHOP, supra, 3d ed. note 17, at v
182. NON-CONTRACT, BISHOP, supra, 35-36, See, e.g. note 17, at
183. FIRST, BISHOP, supra, 54, note 17, at
184. Bishop, System, supra, 4-7, note 15, at
185. Bishop, Elements, supra, 84, note 49, at
186. NON-CONTRACT, BISHOP, supra, 35, note 17, at
187. Bishop, System, supra, 4-7, See also note 15, at
188. BISHOP, supra, note 17, at vi-vii, xv-xvi
189. BISHOP, supra, WOMEN note 17, at ix
190. BISHOP, supra, CONTRACTS note 17, at ix
191. BISHOP, supra, 35-36, note 14, at explicating sequence of succeeding chapters
192. BISHOP, supra, CRIMINAL note 17, passim
193. BISHOP, supra, PROCEDURE note 17, passim
194. BISHOP, supra, NON-CONTRACT note 17, passim
195. BISHOP, supra, MARRIAGE note 14, at xiii-xiv
196. BISHOP, supra, 12, WOMEN note 17, at
197. Not thought of, BISHOP, supra, 804, large index entry entitled which consists of cases he explains differently from previous courts and scholars
198. H.-P. LETTERS, HOLMES-POLLOCK, 1941, 17, letter of April 10, 1881 See also supra text accompanying note 35 (Jabez Fox's similar criticism of John Chipman Gray
199. BISHOP, supra, 144, FIRST note 17, at
200. BISHOP, supra, NEW MARRIAGE note 14, at iv
201. BISHOP, supra, 20-21, CRIMINAL (4th ed.) note 17, at
202. Bishop, supra, 252-254, pt. note 17, at
203. BISHOP, supra, 21, note 17, at See also id. at xix
204. BISHOP, supra, 13, PROCEDURE (3d ed. note 17, at
205. BISHOP, supra, CONTRACTS note 17, at ix
206. BISHOP, supra, NEW MARRIAGE note 14, at xxvi, xxxiii
207. BISHOP, supra, WOMEN note 17, at ix
208. BISHOP, supra, NEW CRIMINAL note 17, at xxi
209. BISHOP, supra, NEW PROCEDURE note 17, at vi-vii
210. BISHOP, supra, 20-21, 4th ed. note 17, at
211. follow[] no opinion of any preceding writer or judge which an examination shows to be contrary to the reasonings and settled doctrines of the law, and especially [they] never introduce[] any opinion or reasoning of the author, but state[] instead the law's reasonings and conclusions as every judge will hold them on being duly enlightened from the bar. For [my treatises] recognize[] the fact that while the past lives in its translated wisdom and reason, its inert, dead forms are buried, and the dealings of practitioners and judges are exclusively with the present and future, BISHOP, supra, NEW MARRIAGE note 14, iv
212. [g]eneral propositions do not decide concrete cases, BISHOP, supra, Lochner v. New York, 198 U.S. 45 76 1905 Holmes, J., dissenting at ix-xi
213. elementary doctrines… in such a manner as to render obvious their application in practice, and indicate the true rule where opinions differ, BISHOP, supra, 3, Bishop held that he could so present, CONTRACTS note 17, at
214. BISHOP, supra, 20, THOUGHTS note 15, at
215. BISHOP, supra, 90-92, FIRST note 17, at
216. BISHOP, supra, 18, NEW CRIMINAL note 17, at
217. the truth of any one statement or proposition is a function… of the degree to which it hangs together’ with everything else we take to be true, Bishop's, thought is like a body of knowledge as described by postmodern philosophers. Postmodernists do not view bodies of knowledge as structured in a linear fashion, that is, in which complex matters are derived from simple foundations. Rather, postmodernists take a holistic approach to bodies of knowledge. They hold that
218. D. Patterson, Dennis, Postmod-ernism/Feminism/Law, 1992, 11, 254-270, CORNELL L. REV. Knowledge is less a logically structured mirror of reality than a field (or network, or web) of belief that interacts with real world experiences only at its periphery
219. is a man-made fabric which impinges on experience only along the edges… A conflict with experience at the periphery occasions readjustments in the interior of the field…Reevaluation of some statements entails reevaluation of others, because of their logical interconnections… But the total field is so underdetermined by… experience… that there is much latitude of choice as to what statements to reevaluate in light of any single contrary experience. No particular experiences are linked with any particular statements in the interior of the field, except indirectly through consideration of equilibrium affecting the field as a whole., W.V.O. Quine, As says, knowledge
220. Patterson, supra, 1953, 270-271, at quoting WILLARD QUINE, TWO DOGMAS OF EMPIRICISM, IN FROM A LOGICAL POINT OF VIEW 42–43
221. Any statement can be held true come what may, if we make drastic enough adjustments elsewhere in the system, Quine, Id., 271, concludes at
222. BISHOP, supra, NEW MARRIAGE note 14, at xxv
223. BISHOP, supra, 704-705, PROCEDURE note 17, at
224. BISHOP, supra, 1-2, CRIMINAL note 17, at
225. BISHOP, supra, 33-37, NON-CONTRACT note 17, at
226. BISHOP, supra, 1-3, note 17, at A belief in natural theology may have allowed Bishop to regard himself as a positive scholar despite his reliance on religious faith to structure his jurisprudence
227. BISHOP, supra, 33, NON-CONTRACT at
228. HOVENKAMP, supra, 22-56, note 40, at ix
229. Bishop, System, supra, 3-4, note 15, at
230. BISHOP, supra, 1-2, note 17, at Significantly, the text accompanying this note is the sentence with which he opens the second edition of his well-received treatise, directed mainly to a professional audience
231. BISHOP, supra, 25, 47, FIRST note 17, at
232. BISHOP, supra, 34, NON-CONTRACT note 17, at
233. BISHOP, supra, 4-6, CONTRACTS note 17, at
234. Bishop, Principles, 185, pt. supra note 17, at
235. Bishop, supra, 506, pt. note 17, at
236. Bishop, System, supra, 4, 6-18, note 15, at
237. Bishop, Elements, supra, 84-85, note 49, at Bishop even argues that God's natural law is a true law in the sense that punishment follows its violation.
238. BISHOP, supra, 4-5, note 17 6, 10
239. BISHOP, supra, 25-26, STRIKES note 15, at
240. BISHOP, supra, 25, 25-26, note 17, at See also id. at
241. BISHOP, supra, 1, CRIMINAL note 17, at
242. BISHOP, supra, note 17, at 25–27, 47–49, 154
243. BISHOP, supra, 33-37, NON-CONTRACT note 17, at
244. the analogy of nature, Bishop, Principles, 506, supra text accompanying note 81. Religious and moral arguments premised upon what was called were much in vogue in Bishop's day.
245. BISHOP, supra, 58-60, FIRST at
246. BISHOP, supra, 65, FIRST note 17, at
247. BISHOP, supra, NON-CONTRACT note 17, at 10
248. BISHOP, supra, CONTRACTS note 17, at x
249. BISHOP, supra, 8, CRIMINAL (2d ed.) note 17, at
250. Bishop, supra, 185, pt. note 17, at
251. BISHOP, supra, 9, FIRST note 17, at
252. BISHOP, supra, 6, CRIMINAL (2d ed.) note 17, at
253. BISHOP, supra, 63-64, FIRST note 17, at
254. BISHOP, supra, 674, WOMEN note 17, at
255. truth, Bishop, System, supra, 4, Perhaps this is because Bishop thinks courts, whenever possible, should draw their decisions from the most probable examples of that bear on the problem
256. BISHOP, supra, 2, CRIMINAL (2d ed.) note 17, at
257. BISHOP, supra, 26, NEW MARRIAGE note 14, at
258. BISHOP, supra, 20-21, FIRST note 17, at
259. BISHOP, supra, 733, PROCEDURE note 17, at
260. BISHOP, supra, 66, 69-72, FIRST note 17, at
261. Siegel, Lochner, supra, 52-61, note 25, at discussing the legislative power doctrine in antebellum constitutional discourse as the textual link for extra-textual principles
262. BISHOP, supra, 19, note 15, at By analogy, constitutions are subject to the clear law of God since God's law is the fundamental law that ordains the establishment of constitutions
263. BISHOP, supra, 2, CRIMINAL LAW (2D ed.) note 17, at
264. Bishop, supra, 252, pt. note 17, at
265. BISHOP, supra, 2, 11, CRIMINAL (2d ed.) note 17, at
266. BISHOP, supra, 66, FIRST note 17, at
267. BISHOP, supra, 24-33, CRIMINAL (2d ed.), note 17, at 69–70
268. Bishop, System, supra, 1-3, note 15, at 10–11 24–26.
269. BISHOP, supra, 65-66, FIRST note 17 at
270. BISHOP, supra, 19, note 14, at In this way, Bishop differentiates himself from eighteenth-century natural law jurists who devised legal systems by deductive elaboration from the first principles of morality. Bishop accords natural law reasoning a minor role. By and large, he claims to use Baconian empiricism to discover the law.
271. BISHOP, supra, 2, CRIMINAL (2d ed. note 17, at
272. Id.
273. 131, 298-300, BISHOP, FIRST, supra note 17, at 77 1 BISHOP, PROCEDURE, supra note 17, at 715
274. Bishop, System, supra note 15, at 6
275. BISHOP, 127-128, FIRST, supra note 17, at 129–30. See also id. at
276. HOVENKAMP, 1874, 79-95, FRANCIS WHARTON, A suggestion As to causation 3–4 legal scholar discussing God's ability to answer prayern
277. 128, This is Bishop's term, which he uses when asserting that Sir Edward Coke held the same position. See bishop, first, supra note 17, at
278. THE HUMAN INTELLECT WITH AN INTRODUCTION UPON PSYCHOLOGY AND THE SOUL, P. NOAH, PORTER, 1868, 40-46, See, e.g. 4th ed. 1886) (1st ed.
279. THE ELEMENTS OF INTELLECTUAL PHILOSOPHY, W. FRANCIS, WAYLAND, 1855, 9–15
280. THE METAPHYSICS OF SIR WILLIAM HAMILTON, B. FRANCIS, BOWEN, 1862, 284–563
281. ELEMENTS OF LOGICK, H. LEVI, HEDGE, 1872, 13-30, (1st ed. 1816); 1 thomas reid, the works of thomas reid 221 (William Hamilton ed., 7th ed. 1872) (repr. ed. 1992); 1 dugald stewart, works passim (1828). The cited texts are all leading American texts. Reid and Stewart were Scots but they were widely read in America
282. 40-46, There was, of course, great debate over the nomenclature of the mind's powers, over the classes of powers, and over the allocation of specific faculties among the classes. See, e.g., 2 reidsupra, at 511 and accompanying note. There was even debate over whether the division of the mind into separate faculties was real or conventional. See porter, supra, at
283. PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR, S. WILSON, SMITH, 1956, 36–41, 60–61, 187–89 Ahlstrom, supra note 111
284. Common Sense Traditions and American Evangelical Thought, N. Mark, Noll, 1985, 216, 37 am. quart.
285. HOWE, 29-68, supra note 105, ayot
286. SCHOLARLY MEANS TO EVANGELICAL ENDS: THE NEW HAVEN SCHOLARS AND THE TRANSFORMATION OF HIGHER LEARNING IN AMERICA, S. LOUISE, STEVENSON, 1986, 1830–1890 at 18
287. PORTER, 40–46, 486, 497, 661-62, supra note 101, at
288. PORTER, 133-139, supra note 102, at See also the volumes defending the Scottish Philosophy and refuting Mill by Princeton's president
289. AN EXAMINATION OF MR. J. S. MILL's PHILOSOPHY: BEING A DEFENSE OF FUNDAMENTAL TRUTH, JAMES MCCOSH, 1880
290. THE SCOTTISH PHILOSOPHY, M. JAMES, MCCosh, 1874
291. HOVENKAMP, 6-56, The comments in this and the following paragraph are drawn from supra note 40, at
292. BOZEMAN, 3-31, supra note 40, at xii-xv
293. MEYER, 35-42, supra note 102, at
294. HOWE, 27-31, supra note 105, at
295. WILLS, 175-206, supra note 102, at
296. BRYSON, 114-147, supra note 105, at
297. GRAVE, 11-150, supra note 102, at
298. WAYLAND, 137, supra note 101, at
299. The Theory of the Will versus the Science of the Mind, D. Lorraine, Daston, 1982, See in the problematic science: psychology in nineteenth-century thought 88 (W. Woodward &M. Ash eds.
300. WILLS, 186-192, See, e.g. supra note 102, at
301. BOZEMAN, 10-21, supra note 40, at
302. BOWEN, 501-502, supra note 101, at
303. GRAVE, 147, See supra note 102, at
304. Ahlstrom, 260, supra note 111, at
305. MEYER, 3–11, 28–31, 123–33, See, e.g. supra note 102, at
306. Memories of Whitestone Seminary, A. Franklin, Ashley, 1928, See
307. THE BURNED-OVER DISTRICT, C. WHITNEY, CROSS, 1950
308. STEVENSON, 113, supra note
309. 1933, 461, 91-96, Bishop's usage comports with the nineteenth-century practice in which the term mind was used sometimes to refer to the human mind and sometimes to all nonphysical reality. 6 oxford english dictionary Daston, supra note 116, at
310. BISHOP, 128, FIRST, supra note 17, at 131; 1 bishop, criminal (2d ed.), supra note 17, at 36, 42; Bishop, Principles (pt. 2), supra note 17, at 186; infra text accompanying note
311. BISHOP, 33-35, NON-CONTRACT, supra note 17, at
312. BISHOP, 72, FIRST, supra note 17, at
313. BISHOP, See, e.g., 1 NEW MARRIAGE, supra note 14, at xix-xx; Bishop, System, supra note 15, at 1–3, 10–11, 24-26; 1 BISHOP, PROCEDURE (3d ed.), supra note 17, at xiv-xv
314. BISHOP, 33-35, NON-CONTRACT, supra note 17, at
315. BISHOP, 382, See also, 1 CRIMINAL (2d ed.), supra note 17, at 35–36, 38, 40-41; Bishop, Principles (pt. 2), supra note 17, at 186; Bishop, Principles (pt. 3), supra note 17, at 253; Bishop, Principles (pt. 5), supra note 17, at
316. BISHOP, 130, FIRST, supra note 17, at Bishop says the most frequent cause of bad decisions is inadequate argument by counsel. See 1 bishop, procedure, supra note 17, at 717-20; Bishop, Elements, supra note 49, at 93
317. BISHOP, 717-734, See, e.g., 1 PROCEDURE, supra note 17, at 714
318. BISHOP, FIRST, supra note 17, at 311 (discussing improper influences on elected judges)
319. BISHOP, FIRST, 307, supra note 17, at
320. BISHOP, 704-716, FIRST, supra note 17, at 77, 130–31, 292, 300, 307; 1 BISHOP, PROCEDURE supra note 17, at This is an aspect of his position that “a court is always bound by authority” but “authority does not consist of cases but of principles bishop, first supra, at 77 (emphasis in the original)
321. BISHOP, 130-131, FIRST, supra note 17, at
322. BISHOP, 130, See, e.g. FIRST, supra note 17, at
323. BISHOP, 709-714, PROCEDURE, supra note 17, at
324. BISHOP, 4, CONTRACTS, supra note 17, at
325. Bishop, 51-57, Principles (pt. 5), supra note 17, at 382; supra text accompanying notes
326. BISHOP, 731, See, e.g., 1 PROCEDURE, supra note 17, at
327. MARRIAGE, BISHOP, supra note 14, at xiii
328. Bishop, 253-254, Principles (pt. 3), supra note 17, at
329. Bishop, 314, Principles (pt. 4), supra note 17, at
330. Bishop, 159-164, Principles (pt. 5), supra note 17, at 382; infra text accompanying notes It should be noted that many twentieth-century jurists would agree with the secular reasons Bishop advances
331. BISHOP, 120–22, 132, 153-54, FIRST, supra note 17, at supra text accompanying note 98
332. NEW CRIMINAL, BISHOP, supra note 17, at xxii
333. BISHOP, supra, 250, FIRST note 17, at
334. BISHOP, supra, 735, 737, note 17, at supra text accompanying notes 35–36, 96.
335. BISHOP, supra, 21, NEW MARRIAGE note 14, at
336. BISHOP, supra, PROCEDURE (3d ed.) note 17, at viii-xi
337. BISHOP, supra, 21, NEW MARRIAGE note 14, at
338. BISHOP, supra, 84, FIRST note 17, at
339. BISHOP, 141, 303-313, FIRST supra note 17, at
340. BISHOP, supra, 41, 43-44, CRIMINAL (2d ed.) note 17, at
341. BISHOP, supra, NEW MARRIAGE note 14, at iv, xxvi, xxvii
342. BISHOP, supra, NEW PROCEDURE note 17, at xii-xiii
343. BISHOP, supra, 154, 307, FIRST note 17, at
344. BISHOP, supra, 8, WOMEN note 17, at
345. A TREATISE ON THE CONFLICT OF LAWS, J. BEALE, JOSEPH, 1916, 150, Bishop's position superficially anticipates the views of Joseph Beale and Thomas Kuhn. See
346. W. Samuels, Warren, Joseph Henry Beale's Lectures on Jurisprudence, 1975, 289, 293, 1909, 29 U. MIAMI L. REV 260
347. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS, T. KUHN, THOMAS, 1970, 174-210, 2d ed., pb. ed.
348. BISHOP, supra, MARRIAGE note 14, xiii
349. BISHOP, supra, NEW MARRIAGE note 14, at v
350. BISHOP, supra, 123, note 14, at v. By moral law, I mean a law of the realm of mind. See supra note
351. voice of the law, BISHOP, supra, note 17, at xxi speaking of the
352. BISHOP, supra, NEW MARRIAGE note 14, at v-vi
353. BISHOP, supra, NEW MARRIAGE note 14, at vii
354. id., See also at v, xxviii
355. SMITH, supra, See, e. g note 113, at 3
356. STEVENSON, supra, note 113, at 1–13
357. BOZEMAN, supra, note 40, at xiv-xv
358. BISHOP, supra, PROCEDURE (3d ed.) note 17, at v
359. Bishop, supra, note 1, at 322
360. BISHOP, NEW PROCEDURE, supra note 17, at vi
361. C. Bishop, Charles, supra, 7, See also note 12, at
362. BISHOP, supra, STRIKES note 15, at 9–11
363. Bishop, supra, pt. note 17, at 60–61
364. Bishop, System, supra, 24-26, note 15, at
365. Bishop, System, supra note 15, 2–3
366. supra note 17, BISHOP, PROCEDURE (3d ed.) at v-vi
367. supra note 17, 733, BISHOP, PROCEDURE
368. supra note 17, 33, See BISHOP, NON-CONTRACT STEVENSON, supra note 113, at 67–102.
369. supra note 101, 486, PORTER (emphasis in the original). Noah Porter was the doyen of nineteenth-century religiously informed scholars. The quoted text is the climax of his extensive investigation of the human intellect. See stevenson, supra note 113, at 69.
370. STEVENSON, supra note 113
371. HORWITZ, supra note 8, 199
372. LAW AND THE MODERN MIND, F. JEROME, FRANK, 1963, 210-218, See also (1st ed. 1930)
373. Grey, supra note 8, See, e.g.
374. FRIEDMAN, supra note 8, 611–619
375. supra note 23, See
376. W. LAPIANA, WILLIAM, LOGIC AND EXPERIENCE, 1994, 110-147, Cf.(noting the Harvard faculty's positivism in analyzing the development of, and opposition to, case method teaching). By positivistic, I mean to emphasize that the Harvard professors’ analyses focused exclusively on law's secular determinates, presenting only what they claimed to discover without any theological superstructure.
377. ESSENTIAL NATURE OF LAW, W. PATTEE, 1909, For an example of another theistic classical scholar see I call Bishop's orthodoxy theistic because of the extent to which he grounded it in beliefs about a transcendent Creator.
378. positive, I use here to emphasize that Bishop presented himself as basing his conclusions on an inductive study of empirical phenomena.
379. F. WHARTON, FRANCIS, 1884, 3, 1-106, See, e.g.
380. COMMENTARIES ON THE LAWS OF ENGLAND, W. BLACKSTONE, WILLIAM, 1890, 18, 96-103, William Hammond establishing a branch I call “historistic” classicism. Historistic classicism conceived each nation's law as evolutionary, as the product of the constant interaction of divinely implanted principles of racial inheritance and shifting historical conditions. Compared to Bishop's cheistic classicism, historistic classicism was as religiously informed yet more historically contingent. However, historistic classicism's sense of historical contingency was neither random nor purposeless, as modern theories of social change require. Historism as a mode of late-nineteenth-century social theory is discussed in Siegel, Historism, supra note 39.
381. FRIEDMAN, supra note 8, 611-619, See, e.g.
382. Kennedy, supra note 25
383. supra note 8, 9-31, HORWITZ
384. K. LLEWELLYN, KARL, 1960, 41, 73–74
385. supra note 25, Pound (which draws to a minor extent from public law decisions)
386. supra note 8, 33-35, Grey
387. A SELECTION OF CASES ON THE LAW OF CONTRACTS, C.L. CHRISTOPHER, COLUMBUS LANGDELL, 1879, 8, 2d
388. GRAY, supra note 38, 287-288, NATURE
389. 303, 294-296, Id. at
390. BEALE, supra note 145, 150
391. SAMUELS, supra note 145, 289–293
392. supra note 15, 21-26, BISHOP STRIKES (advocating laissez-faire)
393. supra, 89, text accompanying note (indicating Bishop's approval of implied limitations and active review).
394. WHARTON, supra note 165, 56-59, See also 422–25, 563–68, 679–91 (a religiously minded classical scholar advocating laissez-faire constitutionalism)
395. FRIEDMAN, supra note 8, 617-620, See, e.g.
396. G. ROBERT, GORDON, PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA, 1983, 70, 72-97, 1730–1940 Gerald Geison
397. acceptable, L. DEAN, LANGDELL, 183, 20-21, The word Thomas Grey's and he discusses the secondary role acceptability played in Langdell's jurisprudence in Grrey, supra note 8, at 10–15.
398. FRIEDMAN, supra note 8, 617, See; e.g.
399. GREY, supra note 8, 24–28
400. GREY, supra, 24
401. LANGDELL, supra note 172, 21, discussed in Grey supra note 8, at 4, 14.
402. 13-15, Id.
403. Law and Morals, Ames, 22 harv. L. REV., 1908, 97, 106-113, See infra note 185.
404. C. MORRIS, COHEN, C. FELIX, COHEN, 1951, 678-689, See (translating Rudolf von Jhering, In the Heaven of Legal Concepts)
405. supra note 17, 16, BISHOP, FIRST
406. [t]he soul of the law is as absolute a thing as your soul, and your body would be fit only for the worms if the soul were fled, supra note 14, 88-91, at xxxiii supra text accompanying notes
407. permit[ting] direct decision of cases from the facts., In his study of classicism, Thomas Grey considers moral sense psychology (and other forms of intuitionism) as a plausible candidate for the cornerstone of classical thought before rejecting it in favor of stare decisis. Grey says classical scholars rejected intuitionism as their ultimate touchstone because they eschewed theories
408. supra note 8, 22, Grey
409. supra note 17, 8, See, e.g., BISHOP, CONTRACTS
410. System, supra note 15, 5, BISHOP
411. Elements, supra note 49, 83
412. supra note 17, 298, See, e.g., BISHOP, FIRST
413. supra note 17, 714-716, BISHOP, PROCEDURE
414. supra note 17, 292-300, BISHOP, FIRST 16, 77, 131, 252–54
415. supra note 17, 45-46, BISHOP, CRIMINAL at 2
416. supra note 14, BISHOP, NEW MARRIAGE at ix, xx
417. supra note 17, 714, BISHOP, PROCEDURE
418. supra note 17, 20-21, BISHOP, CRIMINAL (4th ed.) supra text accompanying note 89
419. supra note 17, 714, BISHOP, PROCEDURE
420. supra note 17, 294, See also
421. supra note 17, 20-21, BISHOP, CRIMINAL (4th ed.)
422. LANGDELL, supra note 172, 15-22, See
423. supra note 17, 203-207, BISHOP, CONTRACTS
424. LANGDELL, supra note 172, 20–21
425. not only sustained by the decisions; but [by] the nature of things., Because Langdell does not discuss the validity of wagering contracts, a direct contrast with Bishop's discussion of wagers is impossible. Bishop, however, does discuss the mailbox rule and supports the opposite result from Langdell. Of relevance to my analysis is not that Bishop supports the contrary rule, but that he finds his preferred outcome
426. supra note 17, 3, 124, BISHOP, CONTRACTS
427. 168-169, see supra text accompanying notes there was no moral science indicating which views were correct and no guarantee that legal change was morally progressive.
428. supra note 38, 305-307, See GRAY, NATURE
429. System, supra note 15, 5-6, Bishop