The forgotten foundations of Hart and Sacks

Virginia Law Review

Volumn 99, Issue 1, 2013, Pages 1-61

  Barzun, Charles L ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 84876218379     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (124)

1. Henry M. Hart, Jr., Holmes' Positivism - An Addendum, 64 Harv. L. Rev. 929, 930 (1951).
2. William James, Pragmatism: A New Name For Some Old Ways of Thinking 201 (1907).
3. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
4. The course was taught at Harvard from 1957 to 1979 except for the 1976-77 school year. William N. Eskridge, Jr. & Philip P. Frickey, An Historical and Critical Introduction to The Legal Process, in Hart & Sacks, supra note 3, at li, xcix n.212. Eighteen other schools had adopted the materials for classroom use by 1963. Id. at ciii.
5. By "foundations," I mean nothing more sophisticated than the way in which their theory of law fit within deeper views about the nature of knowledge and the world. I certainly do not mean to imply that Hart and Sacks were offering a "foundationalist" theory of knowledge according to which all beliefs are justified ultimately by reference to some set of foundational beliefs. See, e.g., René Descartes, A Discourse on Method: Meditations on the First Philosophy; Principles of Philosophy 75-78 (John Veitch trans., Everyman 1994) (1637). Indeed, as I will argue, Hart and Sacks's epistemology was anti-foundationalist in that sense.
6. Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy 254 (1992)
7. (observing that Legal Process theorists sought to "absorb and temper the insights of Legal Realism after the triumph of the New Deal"); Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End 35 (1995)
8. ("Process theorists attempted to tame legal realist insights about the political nature of judicial activity by showing how judicial discretion might be limited by a rationalistic aesthetic defined by a peculiar understanding of the institution of judging."); Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 970 (1994)
9. (explaining that postwar legal scholars "substantially absorbed the anti-formalist claims of Legal Realism"); Gary Peller, Neutral Principles in the 1950's, 21 U. Mich. J.L. Reform 561, 589 (1988) (explaining that postwar legal theorists "made legal realism acceptable by editing out its most radical implications, by domesticating the realist critique to the realm of substance").
10. Bruce A. Ackerman, Law and the Modern Mind by Jerome Frank, Daedalus, Winter 1974, at 123
11. ("Abandoning in large measure its effort to justify decisions by reference to a substantive legal tradition rooted in a comprehensive vision of a good society, legal [process] scholarship concerned itself with the ways in which the structure of the existing legal process of dispute resolution limited the extent to which each decision-maker could properly impose his own particular social ideals upon the world around him."); see also Laura Kalman, The Strange Career of Legal Liberalism 36 (1996)
12. (explaining that Process theorists attempted "to separate law from politics, process from substance, fact from values"); Peller, supra note 6, at 590 (observing that for Legal Process theorists "in the realm of procedure, neutral, value-free reasoning was possible"). But see Fallon, supra note 6, at 973 n.85 (denying that Process theorists like Hart or Wechsler considered complete value-neutrality "to be either necessary or possible"); Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 991 (1978) (arguing that Wechsler recognized that "judges must often make difficult choices among values and [did] not suggest that the judge can somehow be neutral among those values").
13. See, e.g., Horwitz, supra note 6, at 271-72; Minda, supra note 6, at 42; Elizabeth Mensch, The History of Mainstream Legal Thought, in The Politics of Law: A Progressive Critique 18, 30 (David Kairys ed., 1982); Peller, supra note 6, at 566.
14. The main exceptions to this generalization are Neil Duxbury, Patterns of American Jurisprudence 2 (1995), and Eskridge & Frickey, supra note 4, at cviii-cxiii. In Section II.C, infra, I explain why the efforts of Duxbury, Eskridge, and Frickey at revision did not go far enough.
15. Anthony J. Sebok, Legal Positivism in American Jurisprudence 176 (1998)
16. (arguing that Hart and Sacks's belief in pluralist democratic theory enabled them to exclude from the field of jurisprudence the problem of explaining whether or not law was consistent with profound injustice); Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 Stan. L. Rev. 2113, 2125 (2003) (noting that, even if some criticisms of Process Theory were put aside, "the Legal Process approach would fail because it would still tell us nothing about the values of the system, the rights it seeks to enforce through one institution or another"); Fallon, supra note 6, at 970-71 (observing that Hart and Sacks were part of a generation who "had accepted the worldly view that substantive moral and political philosophy were wooly, bankrupt disciplines" and so are properly criticized for ignoring the relevance of those disciplines in considering questions of "substantive justice").
17. In philosophical circles, the difficulty of understanding the existence of value in the natural world (as well as other nonphysical phenomena, such as mental states and probabilities) is sometimes called the "placement problem." See David Macarthur & Huw Price, Pragmatism, Quasi-Realism, and the Global Challenge, in New Pragmatists 91, 93-94 (Cheryl Misak ed., 2007).
18. For a discussion of a nineteenth-century version of such an effort, see Charles L. Barzun, Note, Common Sense and Legal Science, 90 Va. L. Rev. 1051, 1052-56 (2004).
19. For discussions of the connections between Process Theory and sociological jurisprudence, see Duxbury, supra note 9, at 212-23; Eskridge & Frickey, supra note 4, at lvii; The Canon of American Legal Thought 243-45 (David Kennedy & William W. Fisher III eds., 2006).
20. It is widely recognized that Hart was the driving intellectual force behind the Legal Process teaching materials. See Eskridge & Frickey, supra note 4, at lxxvii-lxxxv. His other writing also reveals the extent to which he was responsible for the jurisprudential and methodological speculations in the materials. See, e.g., Michael J. Henry, Hart Converses on Law and Justice, Harv. Law Rec. 7-8 (February 28, 1963) (describing in detail the content of Hart's Holmes Lecture).
21. 73 Harv. L. Rev. 1 (1959).
22. Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System (1953).
23. Lon Fuller, The Forms and Limits of Adjudication (Henry Hart Papers, Box 35, Folder 8) (on file with the Harvard Law School Library).
24. Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).
25. 71 Harv. L. Rev. 1 (1957).
26. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
27. See, e.g., Guido Calabresi, A Common Law for the Age of Statutes 87 (1982)
28. ("In a deep sense we are all followers of Henry Hart and know the moves almost by instinct."); T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20, 26-28 (1988)
29. ("Hart and Sacks, of course, produced the most sustained intentionalist argument, and for years they have dominated the interpretive scene."); John F. Manning, What Divides Textualists and Purposivists?, 106 Colum. L. Rev. 70, 86 (2006) (using Hart and Sacks's theory of statutory interpretation as the representative of a "purposivist" interpretive approach in part on the ground that "their materials have come to represent the canonical statement of purposivism").
30. Telephone Interview with Lloyd L. Weinreb, Dane Professor of Law, Harvard Law School (July 28, 2011) (recalling that Hart was in "a different stratosphere" from other Harvard Law Professors at the time, even prominent ones like Lon Fuller).
31. William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 Mich. L. Rev. 707, 742-43 (1991);
32. Edward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1398-99 (1996).
33. See, e.g., Robert W. Gordon, New Developments in Legal Theory, in The Politics of Law: A Progressive Critique, supra note 8, at 281, 282
34. (observing that, despite many differences among critical legal scholars, there existed among them "some common features to our common disenchantment with liberal legalism"); David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 Wis. L. Rev. 1062, 1071 (1974)
35. (describing and criticizing the basic model of liberal legalism, which conceptualized the state as "a process by which individuals, principally through their membership in relatively permanent voluntary groups, formulate rules for mutual self-governance"); see also Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1685 (1976) (criticizing a mode of legal thought that "favors the use of clearly defined, highly administrable, general rules" and which is associated with an ideology of individualism).
36. See, e.g., J. M. Balkin, Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 UMKC L. Rev. 392, 409-15 (1987); Mensch, supra note 8, at 33.
37. Scholars in their own generation include Ronald Dworkin, Owen Fiss, and Guido Calabresi. For critiques of each, respectively, see Balkin, supra note 32; Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 392-96 (1982);
38. Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 Stan. L. Rev. 213 (1983).
39. G. Edward White, Patterns of American Legal Thought 158-59 (1978).
40. Eskridge & Frickey, supra note 4, at cxxv. Those Justices are Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. Clarence Thomas is the sole exception. See Adam Liptak, A Well-Traveled Path from Ivy League to Supreme Court, N.Y. Times, Sept. 7, 2010, at A17.
41. See, e.g., Ronald Dworkin, Taking Rights Seriously, at xii (1977).
42. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 4-5 (1980).
43. See, e.g., Lawrence Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1064 (1980) (criticizing Process Theory as applied to constitutional law generally and Ely's Democracy and Distrust more specifically).
44. See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189 (1985) (analyzing and criticizing interpretive doctrines of criminal law in light of their assumptions about the relative institutional competencies of courts and legislatures)s.
45. Ken I. Kersch, Justice Breyer's Maudarin Liberty, 73 U. Chi. L. Rev. 759, 767-68 (2006).
46. Professor Michael Dorf has also characterized his call for "experimentalist judging" and a renewed focus on how to design institutions to reduce indeterminacy as an effort inspired by the Legal Process tradition of Hart and Sacks. Michael Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. Rev. 875, 920-35 (2003).
47. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 55-56 (1982).
48. Id. at 102 (quoting Joseph M. Snee, Leviathan at the Bar of Justice, in Government Under Law: Essays Prepared for Discussion at a Conference on the Occasion of the Two Hundredth Anniversary of the Birth of John Marshall 47, 52 (1955)).
49. Roscoe Pound, The Revival of Natural Law, 17 Notre Dame Law. 287, 368 (1942);
50. see also Roscoe Pound, Justice According to Law 30-31 (1951).
51. William James, The Moral Philosopher and the Moral Life, in The Will to Believe: And Other Essays in Popular Philosophy 184, 205 (Longmans, Green & Co. 1937) (1897).
52. Amartya Sen, On Ethics and Economics 7-11 (1987);
53. Philip Pettit, Consequentialism and Respect for Persons, 100 Ethics 116, 116-18 (1989).
54. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 409-10 (1958);
55. see also Henry M. Hart, Jr. & John T. McNaughton, Evidence and Inference in the Law, Daedalus, Fall 1958, at 40, 64 (arguing that the best environment for developing human abilities is one that "provides the maximum opportunity and encourages the maximum growth of individual capacity to make effectual and responsible decisions concerning the direction of human and social life").
56. Scott Shapiro, Legality 6 (2011) (observing that "[t]he Legal Process School led by the lawyers Henry Hart and Albert Sacks was an extremely influential approach to the American legal system that analyzed the law through an organizational lens," but that "[l]egal philosophy has nevertheless remained more or less unaffected by the kind of organizational analysis that has become such a prominent and productive feature" of disciplines such as psychology, sociology, and economics).
57. Eskridge & Frickey, supra note 4, at lxxxv (observing that Hart made a "twist" on Fuller's insistence upon the inseparability of fact and value, "but a twist which spun away from Fuller's natural law view that law should adapt to society and its morals, and toward a new kind of positivism"); see also Sebok, supra note 10, at 168 ("Despite the almost wholesale insertion of Fuller's theory of adjudication into the theory of reasoned elaboration, the theory of law in The Legal Process is closer to H. L. A. Hart than Fuller."); Vincent A. Wellman, Dworkin and the Legal Process Tradition: The Legacy of Hart & Sacks, 29 Ariz. L. Rev. 413, 470 (1987)
58. ("Hart and Sacks did not themselves advocate anything like a natural law theory. Their manuscript is largely free of this sort of jurisprudential speculation, and what can be gleaned from their views about the nature of law suggests a positivistic orientation instead."). But see Fallon, supra note 6, at 965 & n.50 (identifying "the anti-positivist principle" as one of the core methodological assumptions of Hart and Sacks); Brian Leiter, Positivism, Formalism, Realism, 99 Colum. L. Rev. 1138, 1155-58 (1999) (reviewing Professor Sebok's book and criticizing the suggestion that Hart and Sacks were positivists and suggesting instead that they seem to have endorsed something like a natural law theory akin to that of Lon Fuller).
59. Id. These functions are strikingly similar to those served by H. L. A. Hart's rules of recognition, adjudication, and change. See H. L. A. Hart, The Concept of Law 92-96 (2d ed. 1994). The similarities between the two Harts are discussed below. See infra Subsection II.B.3.
60. See Joseph Raz, Authority, Law and Morality, 68 The Monist 295, 295-96 (1985).
61. Id. at 147; cf. Ronald Dworkin, Law's Empire 66 (1986) (advancing a theory of interpretation that requires the interpreter to craft an interpretation that both "fit[s]" and justifies past practice).
62. Even these claims about adjudication could be consistent with exclusive positivism if interpreted as claims about how courts ought to make law, but in other places Hart made clear that he thought such reasoned elaboration was necessary to identify the law. See Hart, supra note 1, at 936 n.21 (noting that the problem of determining when a law is settled "inescapably involves ethical questions"); Henry M. Hart, Jr., Notes on Some Essentials of a Working Theory of Law 36 (Henry Hart Papers, Box 17, Folder 1) (on file with the Harvard Law School Library) [hereinafter Hart, Notes on Some Essentials].
63. Id. at 4-5. This is sometimes referred to as the "social fact thesis." See Kenneth Einar Himma, Inclusive Legal Positivism, in The Oxford Handbook of Jurisprudence and Philosophy of Law 125, 126 (Jules Coleman & Scott Shapiro eds., 2002).
64. See Hart, supra note 105, at 248-50 (denying that Ronald Dworkin's description of positivism as an "interpretive" theory of law grounded on moral arguments of the sort mentioned in the text describes his own theory and observing that his own discussion of the capacity of secondary rules to remedy defects does not reflect the purpose of law but instead only "a particular moral merit which law has"); Andrei Marmor, Legal Positivism: Still Descriptive and Morally Neutral, 26 Oxford J. Legal Stud. 683, 693 (2006) ("[Hart's] claim is not that the development of secondary rules makes the law a better institution, morally more legitimate, so to speak. Hart simply claims that the development of secondary rules enables the law to better serve its functions; it makes it more efficient, qua law."). I leave aside the question of whether these two defenses of the alleged moral neutrality of Hart's analysis are consistent with each other.
65. Jeremy Waldron has described his own position, which is similar in many ways to that of Hart and Sacks, as a form of "normative positivism." See Jeremy Waldron, Normative (or Ethical) Positivism, in Hart's Postscript: Essays on the Postscript to The Concept of Law 410, 411 (Jules Coleman ed., 2001).
66. For arguments denying that such neutrality is possible or desirable, see Ronald Dworkin, Justice in Robes 140-86 (2006);
67. Gerald A. Postema, Bentham and the Common Law Tradition 328-35 (1986);
68. Stephen Perry, Interpretation and Methodology in Legal Theory, in Law and Interpretation: Essays in Legal Philosophy 97, 123 (Andrei Marmor ed., 1995);
69. Danny Priel, Evaluating Descriptive Jurisprudence, 52 Am. J. Juris. 139, 153-57 (2007);
70. Waldron, supra note 128. For defenses of the neutralistic ambitions of analytical jurisprudence, see Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 179-217 (2001);
71. Hart, supra note 105, at 239-44; Marmor, supra note 125, at 700; Scott Shapiro, The Bad Man and the Internal Point of View, in The Path of the Law and its Influence: The Legacy of Oliver Wendell Holmes 197, 199-200 (Steven J. Burton ed., 2000).
72. Hart & Sacks, supra note 3, at 107. Professor Peller acknowledges that Hart and Sacks conceived of legal reasoning as "prudential" in this way, but he insists that Hart and Sacks only endorsed this value-laden style of legal reasoning for judges insofar as they were acting "interstitially," that is, insofar as they were interpreting statutes or making common law decisions that could be overruled by legislative action and were thus acting as "deputy legislatures." Peller, supra note 6, at 592, 596-97. On his view, when it came to constitutional decision making, Hart and Sacks agreed with Wechsler that judges must abstain from making any value judgments. Id. at 595, 602-03. In my view, Peller is right that Hart and Sacks's analysis is consistent with Wechsler's, but he overstates both the degree to which Hart and Sacks conceptualized common law decision making as mere policymaking, see, e.g., Hart & Sacks, supra note 3, at 452-53 (discussing the case of Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), and doubting whether there were sufficiently clear standards to justify the court in vindicating a common law "right to privacy"), and the degree to which Wechsler denied the role of values in constitutional cases, see Wechsler, supra note 18, at 16 ("Is there not, in short, a vital difference between legislative freedom to appraise the gains and losses in projected measures and the kind of principled appraisal, in respect of values that can reasonably be asserted to have constitutional dimension, that alone is in the province of the courts?" (emphasis added)). Peller correctly observes that for Hart and Sacks, the fundamental question was often the question of "who decides," Peller, supra note 6, at 570, but for the reasons stated in the text I do not find his further claim that Hart and Sacks thought such decisions could be made "neutrally" to be well supported by the text of the teaching materials or Hart's other work.
73. Hart & Sacks, supra note 3, at 107 (quoting Lon Fuller, Freedom - A Suggested Analysis, 68 Harv. L. Rev. 1305, 1307 (1955) [hereinafter Fuller, Freedom]);
74. id. at 111 (citing Lon Fuller, American Legal Philosophy at Mid-Century, A Review of Edwin W. Patterson's Jurisprudence, Men and Ideas, 6 J. Legal Educ. 457 (1954) [hereinafter Fuller, Legal Philosophy]).
75. See, e.g., Lon L. Fuller, The Law in Quest of Itself 2-3 (1940) [hereinafter Fuller, Quest];
76. Fuller, Freedom, supra note 144, at 1306-07; Lon Fuller, Human Purpose and Natural Law, 3 Nat. L. F. 68, 69 (1958) [hereinafter Fuller, Human Purpose];
77. Fuller, Legal Philosophy, supra note 144, at 468-73.
78. Kenneth I. Winston, The Is/Ought Redux: The Pragmatist Context of Lon Fuller's Conception of Law, 8 Oxford J. Legal Stud. 329, 345 (1988).
79. Id. at 213; William James, The Will to Believe, in The Will to Believe: And Other Essays in Popular Philosophy, supra note 89, at 1, 10.
80. Id. at 478. The Greek prefix "eu" means "good" or "well" (for example, eucalyptus, euphoria, and the Greek word eudemonia). 5 The Oxford English Dictionary 430 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1998). "Nomic" also comes from Greek, meaning "law-like." 10 id. at 471.
81. Lon L. Fuller, Means and Ends, in The Principles of Social Order 61, 65 (Kenneth I. Winston ed., 2001).
82. Oliver Wendell Holmes, Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, 1 (1870).
83. But see Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 894 (2006) (arguing that judges may be prone to cognitive errors when making policy decisions based on a set of concrete facts before them).
84. Eskridge & Frickey, supra note 4, at lxxvi (quoting Letter from Henry M. Hart, Jr. to John H. Williams, Dean, Graduate School of Public Administration, Harvard University (Oct. 15, 1941) (Felix Frankfurter Papers, Box 185, Folder 14) (on file with the Harvard Law School Library)).
85. Letter from Henry M. Hart, Jr. to Hon. Charles E. Wyzanski, Jr., District Judge, District Court of the United States (Mar. 22, 1954) (Henry Hart Papers, Box 7, Folder 2) (on file with the Harvard Law School Library).
86. See, e.g., Hart & Sacks, supra note 3, at cxxxvii ("These materials are concerned with the study of law as an ongoing, functioning, purposive process... Their objective is a better understanding of law generally rather than any particular field of law."); Henry Hart, Legislation Notes (June 11, 1947) (Henry Hart Papers, Box 15, Folder 5) (on file with the Harvard Law School Library) [hereinafter Hart, Legislation Notes] (describing his course on the first day as one in "Practical, or Working Jurisprudence"); Hart, Notes on Some Essentials, supra note 116, at 35 (explaining that a "satisfactory working theory [of law] must take a position somewhere in between" natural law and positivism).
87. Albert M. Sacks, Henry Hart, 82 Harv. L. Rev. 1593, 1593 (1969).
88. Fuller, Legal Philosophy, supra note 144, at 472 ("The whole man, taken in the round, is an enormously complicated set of interrelated and interacting purposes. This system of purposes constitutes his nature, and it is to this nature that natural law looks in seeking a standard for passing ethical judgments.").
89. Hart made some conflicting statements on this issue. Compare, e.g., Hart, Legislation Notes, supra note 173 (defining law as "the process of social ordering... by action [or inaction] of the agencies of government... with a view to promoting ends accepted as valid in the society" (emphasis added)), with Memorandum from Henry Hart to Ernest Brown (Feb. 24, 1959) (Henry Hart Papers, Box 35, Folder 10) (on file with the Harvard Law School Library) (suggesting that there are "principles of social order which are independent of the appetites and wills of the contending groups" and are "discoverable by experience and reflection").
90. See Duxbury, supra note 9, at 212-23; The Canon of American Legal Thought, supra note 13, at 243-45; Eskridge & Frickey, supra note 4, at lii-lxxiv.
91. See, e.g., Felix S. Cohen, Ethical Systems and Legal Ideas 4-5 (1933)
92. (citing Pound and arguing that "those who define law in terms of actually prevailing social demands or interests make frequent use of the undisclosed principle that these demands ought to be satisfied"); Karl Llewellyn, A Realistic Jurisprudence - The Next Step, 30 Colum. L. Rev. 431, 434-38 (1930) (criticizing Roscoe Pound for talking of the "ends" of law in a way that obscured the distinction between "is" and "ought").
93. Hart & Sacks, supra note 3, at 108 (citing and quoting Felix Cohen, Ethical Systems and Legal Ideals 12 (1933)).
94. W. V. Quine, Two Dogmas of Empiricism, 60 Phil. Rev. 20, 20 (1951);
95. Morton G. White, The Analytic and the Synthetic: An Untenable Dualism, in John Dewey: Philosopher of Science and Freedom 316, 316-30 (Sydney Hook ed., 1950).
96. Some, but not all, Realist claims. See Charles L. Barzun, Jerome Frank and the Modern Mind, 58 Buff. L. Rev. 1127, 1172 (2010) (arguing that Frank's critique of law was based in part on a rejection of a strong fact-value dichotomy).
97. Morton White, Toward Reunion in Philosophy 20 (1956) ("Once logicians and epistemologists begin to speak about justifying conceptual frameworks by reference to considerations of expediency, as some do, and once others begin to counter by appealing to intuition or conscience, as they do, we can see that we are entering a subject which might well profit from the two thousand years or so of moral philosophy in which very similar questions have been discussed.").
98. Thomas Kuhn, The Structure of Scientific Revolutions 4-6 (2d ed. 1970);
99. Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy, at vii (1958);
100. Michael Polanyi, The Logic of Liberty 21-26 (1951) [hereinafter Polanyi, Logic]. The first edition of Kuhn's work was published in 1962.
101. Polanyi, Logic, supra note 207, at 18-19, 22; cf. W. V. Quine, On Empirically Equivalent Systems of the World, 9 Erkenntnis 313, 313 (1975) (making a similar point).
102. Id. at 155-56; Polanyi, Logic, supra note 207, at 36-38. Whether such criteria as "simplicity" are purely aesthetic or have genuine epistemic value is a continuing source of debate among philosophers of science. See Elliott Sober, Simplicity, in A Companion to the Philosophy of Science 433, 433-41 (W.H. Newton-Smith ed., 2000).
103. Ludwig Wittgenstein, Philosophical Investigations § 242 (1953);
104. Leo Strauss, Natural Right and History 38-40, 78-80 (1950).
105. Peter Winch, The Idea of a Social Science 24-39 (1958).
106. Fuller, supra note 209 (noting that the work of Polanyi and Kuhn supported his philosophical and epistemological views); Lon Fuller, A Rejoinder to Professor Nagel, 3 Nat. L. F. 83, 93 (1958) [hereinafter Fuller, Rejoinder] (citing White and Polanyi and using the phrase quoted in the text); Fuller, Human Purpose, supra note 145, at 71 (quoting Wittgenstein); Letter from Lon L. Fuller to Willard Quine, Professor (Oct. 8, 1953) (Lon Fuller Papers, Box 6, Folder 14) (on file with the Harvard Law School Library) (praising Quine's attack on logical positivism but criticizing it for its failure to take seriously the importance of purpose in explaining human action).
107. On H. L. A. Hart's participation in the Legal Philosophy Discussion Group, see Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream 188 (2004). Hart told John Finnis that he adopted the idea of the internal point of view from Winch. See id. at 230. As for Wittgenstein, Lacey recounts that Hart told one of his students that, upon reading Wittgenstein's Blue Book, he felt "as if the scales fell from my eyes." Id. at 140. She also states that Hart referred to Wittgenstein's Philosophical Investigations as "our bible." Id.
108. On the other side of this debate were those in the newly formed (or at least newly labeled) "behavioral sciences," who sought to study human behavior on the model of the natural sciences, in the tradition of psychological behaviorism. See Roger Smith, The Norton History of the Human Sciences 802-03 (1997).
109. Fuller, supra note 21, at 632-33; H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615-21 (1958).
110. Cf. Jack M. Balkin & Sanford Levinson, Essay, Law and the Humanities: An Uneasy Relationship, 18 Yale J.L. & Human. 155, 173 (2006) (making a similar point, though one framed as law's "resistance to colonization" by other disciplines).
111. Fuller, Rejoinder, supra note 220; see also Arthur S. Miller & Ronald Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L. Rev. 661, 665-70 (1960) (citing Strauss, Polanyi, and others in support of their contention that knowledge is "primarily decisional in nature," by which they meant that even descriptive claims entailed making value judgments). Ironically, Miller and Howell were using these ideas to criticize Hart and Sacks. Id. at 672.
112. Hans-George Gadamer, Truth and Method (1960);
113. see also Sophia Rosenfeld, Common Sense: A Political History 245-47 (2011)
114. (discussing Gadamer as one of several postwar theorists who relied on a notion of "common sense" as a ground for making moral judgments). For Dworkin's reliance on Gadamer, see Dworkin, supra note 114, at 55, 62. For Eskridge and Frickey's, see William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 323, 343, 345-46, 351-52, 360, 363, 380-81 (1990).
115. The distinction has its roots in the German concept of "verstehen," associated with Wilhelm Dilthey and Max Weber. See Wilhelm Dilthey, Introduction to the Human Sciences: An Attempt to Lay a Foundation for the Study of Society and History 23-24 (Ramon J. Betanzos trans., 1988).
116. See generally Max Weber, The Nature of Social Action, in Weber: Selections on Translation 7 (W.G. Runciman ed., E. Matthews trans., 1978).
117. See John Austin, The Province of Jurisprudence Determined (David Campbell & Philip Thomas eds., Dartmouth Publ'g Co. 1998) (1832);
118. see also Dan Priel, Towards Classical Legal Positivism 27-28 (Osgoode CLPE Research Paper No. 20/2011), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1886517 (observing that contemporary jurisprudence is said to have improved upon Austin "by emphasizing the fact that law is often taken by people to provide them with reasons for actions, a fact that command theories fail to take into account").
119. Jack Goldsmith & Adrian Vermuele, Empirical Methodology and Legal Scholarship, 69 U. Chi. L. Rev. 153, 153-54 (2002);
120. see also Robert Post, Legal Scholarship and the Practice of Law, 63 U. Colo. L. Rev. 615, 617-24 (1992) (making use of a similar internalexternal distinction in analyzing the legal academy).
121. Frederick Schauer, Fuller's Internal Point of View, 13 Law & Phil. 285, 302 (1994).
122. Compare Old Chief v. United States, 519 U.S. 172, 187 (1997)
123. (excluding evidence of the defendant's past conviction but observing in dicta that the concept of relevance should be interpreted broadly in part because "[t]his persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them"), with Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. Chi. L. Rev. 511, 538 (2004) (noting that new evidence about a party's previous bad conduct appeared to affect subjects' confidence in their judgments about irrelevant issues, such as whether an Internet website was analogous to a newspaper for the purposes of free speech doctrine).
124. Compare Judith Jarvis Thomson, Killing, Letting Die, and the Trolley Problem, 59 Monist 204 (1976) (discussing the now-famous "trolley problems" as an effort to capture and refine moral intuitions), with Joshua D. Greene et al., An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Science 2105, 2106-07 (2001) (using fMRI brain scans to observe that individuals considering hypothetical "personal" moral dilemmas produced more activity in emotion-related areas of the brain, including the posterior cingulate cortex, the medial prefrontal cortex, and the amygdala than they did when facing "impersonal" dilemmas).