Glendon-Sources of Law in A Changing Legal Order PDF

THE SOURCES OF LAW IN A CHANGING
LEGAL ORDER*
MARY ANN GLENDON**
INTRODUCTION
My subject for this TePoel lecture arises from a difficulty I
have had in my current work, which is the preparation of a
casebook on comparative law and, specifically, that part of the
casebook which deals with the continental European civil law sys-
tems. My difficulty was not unlike what those of you who are first-
year law students may be experiencing-how does one grasp and
present a legal system as a whole? How do we penetrate its formal
structures and technical apparatus so as to fully understand it
and-if it is a foreign legal system-usefully compare it with our
own? In trying to deal with this difficulty, I encountered another
problem which was this: the widely accepted categories of legal
thought in civil law systems (the way most legal scholars under-
stand and explain their own system to themselves and others) did
not seem to correspond to the actual predominance of the various
materials of legal reasoning in those systems. But then I had to
ask myself whether the American situation is really any different
in this respect. Have not the conceptual tools which are now gen-
erally in use in American law schools become increasingly obso-
lete over the past sixty or so years? If I am able to persuade you
today that they have, this does not mean that law as a discipline is
especially retarded. I ask you to consider in this connection the
fact that Charles Darwin's essay On the Origin of Species was pub-
lished in 1859, but it was not until the 1940's that the classification
systems used in the life sciences were adjusted to reflect the
changes brought about by Darwin's theories.' Obviously, it takes a
long time for a new outlook to enter the mainstream of a field, and
the changes that have taken place in law in our century, I will ar-
gue, are comparable in magnitude to the effect of evolutionary the-
ory on biology.
* This article was prepared in connection with the Dean Louis J. TePoel
Lecture delivered by Professor Glendon at the Creighton University School of Law
on September 1, 1983.
** Professor of Law, Boston College Law School. B.A., University of Chicago,
1959; J.D., 1961; M.C.L., 1963.
1. Lewontin, Darwin'sRevolution, THE NEW YORK REVIEW OF BooKs, June 16,
1983, at 21.
CREIGHTON LAW REVIEW [Vol. 17
What I propose to do in this lecture, therefore, is, first, to make

out in a very general way the elements of a case that the sources-
of-law theories and other widely accepted categories of legal
thought in modern Western legal systems still do not adequately
reflect the changes brought about by the gradual transformation,
over the past century, of liberal laissez-faire states into modern
regulatory social welfare states. Then, I would like to explore with
you some implications of this transformation for legal education
and legal methods.
In a sense, my topic is of a homely everyday sort, but let me try
to explain why I believe it needs attention by reminding you of
why things like classification systems matter. We all take for
granted that the customary terminology, categories, and divisions
of a given area of knowledge are indispensable for regular on-going
work within that field. We need them to enable ourselves to organ-
ize, retain, communicate, and build on what we learn. Yet this
same apparatus can also constitute an impediment to intellectual
advance of a really fundamental sort. This is because it has a pow-
erful influence in determining which issues are raised and treated
as important as well as which are excluded or overlooked. 2 In our
own field of law, our conceptual apparatus determines to a great
extent how law is taught and how our legal culture is transmitted
from one generation to another.
In both common and civil law countries, legal writers and edu-
cators accept certain divisions of law that determine how legal sub-
jects are allocated to various courses in the curriculum and how
different subjects are arranged in textbooks, bibliographies, and li-
brary catalogues. These divisions do not have any inherent logic.
They have been produced by various historical factors and have
been maintained without much reflection. 3 Besides the standard
divisions of the law into subject matter areas, a certain account of
the nature and relative importance of the various sources of law
within each legal system is widely accepted. Traditional sources-
of-law theory insists on the centrality of court decisions to the
common law and of the civil codes to civil law. 4 Case law, with its
2. The obligatory citation here is T. KUHN, THE STRUCTURE OF SCIENTIFIC REV-

OLUTIONS 5 (2d ed. 1970). But see also A. WHITEHEAD, SCIENCE AND THE MODERN
WORLD 186-87 (1956) (first published 1925).
3. See generally MAX WEBER ON LAW IN ECONOMY AND SOCIETY, ch. III (fields
of Substantive Law) and ch. IV (Categories of Legal Thought) (M. Rheinstein ed.
1954) (first published 1922) [hereinafter cited as WEBER].
4. R. DAVID, ENGLISH LAW AND FRENCH LAW 16 (1980); 1 K. ZWEIGERT & H.
K6TZ, AN INTRODUCTION TO COMPARATrIVE LAw 63 (T. Weir trans. 1977).
The classical common law theory, as accepted by Karl Llewellyn in the 1930's,
was:
19841 SOURCES OF LAW
accompanying elaborate techniques for dealing with precedent, is

supposed to be the lifeblood of the common law, while the civil
codes, with their refined methods of statutory interpretation, are
considered the heart of the civil law. In civil and common law sys-
tems alike, these models (which never precisely corresponded to
reality) still govern much theoretical discussion about the materi-
als of legal reasoning, their binding or non-binding character, the
hierarchy among them, and judicial techniques for dealing with
them. Yet as soon as one moves from legal theory to the system-
atic treatment of any given legal subject matter and, even more so,
when one enters the world of the practitioner, the widening dis-
crepancy between theory and reality is apparent.
The relative predominance of the various sources of law is now
quite markedly at variance with the classical common and civil law
descriptions. In addition, and equally important, the very nature
of two of the main sources, legislation and case law, has been pro-
foundily altered since these descriptions were formulated in the
late nineteenth and early twentieth centuries. I will suggest here
Case law modified by statute is the essence of the Anglo-American judicial

system. For the case law is the background against which statutes are
viewed; it governs wherever no statute has entered. Indeed, statutes are in
the main regarded as innovations on case law, to be limited in their
application....
Llewellyn, CASE LAw, in 2 INT'L ENCY. OF THE Soc. SCL 249 (1930). See also H. HART
&A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION
OF LAw 6, 186 (tent. ed. 1958).
The continuing centrality of the Civil Code of 1804 in the French system is ex-
emplified by the following introductory passage from Jean Carbonnier's great trea-
tise on the civil law, where the term "civil law" is used in a narrow sense to refer to
the law in those areas covered by the civil codes:
It is customary for an introduction to the study of civil law to serve in addi-
tion as an introduction to the general study of law. This is because the civil
law traditionally has had the vocation of offering models to other legal dis-
ciplines. This is not necessarily because it has the most extensive field of
application: if it did a century ago, doubtless it no longer has today, having
lost a great deal to other sectors of the law (such as administrative law,
labor law, etc.). But what remains true is that it presents the highest de-
gree of accomplishment and, if one may say so, perfection:
Fundamentally, first, because it corresponds in the purest manner to
the image one has of the essence of law, an equilibrium imposed from
above upon two individuals, a scale in the hands of a goddess;
Technically, also, because, being older, it has explored its concepts
more deeply, and so well that the other legal disciplines have not been able
to do better than to borrow them afterwards.
1 J. CARBONNIER, Daorr CrVIL 9 (10th ed. 1974).
According to Roldolfo Sacco, in Italy:
The civil code, in 1865, as well as in 1942, occupied the place of honor
among the sources of civil law. It was located practically at the summit of
the hierarchy of these sources; other laws quite naturally were subjected to
the scale of values that the code had made its own.
Sacco, La codification,Forme D4passde de Ltgislation?,ITALIAN NATIONAL REPORTS
TO THE XI INT'L CONGRESS OF CoMPARATrIVE LAw 65, 66 (1982).
that the fundamental changes that have taken place have pro-
duced significant areas of convergence between civil and common
law systems, casting doubt on the utility of many of the tradition-
5
ally accepted distinctions between the common and the civil law.
What has happened over the past sixty or so years to render
traditional ways of organizing knowledge about law increasingly
less useful? In the first section of this lecture, I will review briefly
the series of interrelated developments that have altered the legal
landscape in the twentieth century. Then, I will make some sug-
gestions about how legal education, especially in the first year,
might adjust to these changes. In the concluding section, I will of-
fer some observations about their implications for certain method-
ological problems of comparative law and legal sociology.
SOURCES OF LAW IN MODERN WESTERN STATES

The traditional ways of thinking about the materials of legal
reasoning began to be unsettled by the "discovery," proclaimed by
several nineteenth century writers in Europe and the United
States, that the judicial function is not merely a mechanical pro-
cess of finding and applying legal norms contained in earlier cases
or in legislation. Von Jhering in Germany, Bentham and Austin in
England, Holmes in the United States, and G~ny in France all ef-
fectively demolished the illusion of the internal logic and com-
pleteness of the law. While the news that judges were often
engaged in a creative law-making process held the attention of the
academy, however, time-honored methods of thinking and commu-
nicating about law were being decisively and permanently affected
by events in a rapidly changing society. Five aspects of the transi-
tion from market to mixed and regulated economies in particular
undermined classical sources-of-law notions: the rise of legisla-
tion, the increasing variety of legislation, the decline of precedent
in the common law, the emergence of administrative law, and the
expansion of the functions of the state.
THE RISE OF STATUTORY LAw
Starting in the late nineteenth century, in both civil and com-

mon law systems, there was an outpouring of a kind of legislation
which displaced both the judge-made common law and the conti-
nental civil codes with essentially the same kind of new law. What
5. For a discussion of the basis for grouping certain countries within civil law
and common law traditions, see M. GLENDON, M. GORDON & C. OSAKWE, COMPARA-
TIVE LEGAL TRADrnONS IN A NUTSHELL 4-8, 13-14 (1982).
kind of law was this? It belonged to the age of what was then
called universal suffrage 6 and to the spirit of men like Jeremy Ben-
tham who believed that legislation could and should be used as a
"scientific" instrument of social reform and control. 7 National leg-
islatures, elected by increasingly broader constituencies, adopted
factory legislation, workmen's compensation laws, rudimentary so-
cial legislation, and laws regulating employment contracts, and be-
gan to regulate commerce and public utilities. 8 This modern
legislation removed great areas wholly or partially from the cover-
age of the judge-made common law in the Anglo-American sys-
tems and from the civil codes in the continental systems.
Moreover, it not only took territory from these traditional sources,
but it was fundamentally inconsistent with their underlying ideol-
ogies of protection of private property and enforcement of private
ordering through contract.
Then, in the first part of the twentieth century, mainly in re-
sponse to economic crises, a second wave of modern legislation ap-
peared. Legislatures in industrialized countries came to the
assistance, at different times and to varying degrees, of farmers,
debtors, and unemployed workers. The state started to attend sys-
tematically to the elementary needs of its disadvantaged citizens.
Each country laid down the main lines of its legal treatment of in-
dustrial relations. The administrative apparatus of the modern
state began to take on its present contours.
What is of particular interest to us in this oft-told tale is how
academic lawyers did and did not respond to the new situation.
The growing importance of statutes as sources of law in the United
States over the first half of the twentieth century was early re-
marked upon by Pound and Landis in articles which are now re-
garded as classics. 9 In 1947, Felix Frankfurter wrote that "as late
as 1875 more than 40% of the controversies before the [Supreme]
Court were common-law litigation, fifty years later only 5%, while
6. L. DUGUTr, LAW IN THE MODERN STATE 28 (F. Laski & H. Laski trans. 1970)
(first published 1913).
7. A. DICEY, LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN
ENGLAND DURING THE 19TH CENTURY 134, 167, 303-06 (1952) (first published 1905).
8. Id. at 259-302; L. DUGUTr, supra note 6, at 32-67; Alvarez, Dominant Legal
Influences of the Second Half ofthe Century, in THE PROGRESS OF CONTINENTAL LAW
IN THE NINETEENTH CENTURY, 11 CONTNENTMAL LEGAL HISTORY SERIES 31, 36, 52-56
(1918); Duguit, Changesof Principlein the Field of Liberty, Contract,Liability, and
Property, in THE PROGRESS OF CONTINENTAL LAW IN THE NINETEENTH CENTURY, 11
CONTINENTAL LEGAL HISTORY SERIES 65, 83-86 (1918).
9. Landis, Statutes and the Sources of Law, 1934 HARVARD LEGAL ESSAYS 214;
Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908).
today cases not resting on statutes are reduced almost to zero."' 1

In 1982, Guido Calabresi summed up the long trend: "The last fifty
to eighty years have seen a fundamental change in American law.
In this time we have gone from a legal system dominated by the
common law, divined by courts, to one in which statutes, enacted
by legislatures, have become the primary source of law."" In the
civil law countries, of course, legislation had been the primary
source of law since the acceptance of parliamentary supremacy,
with the great nineteenth century codifications of civil law en-
joying pride of place. 12 What is interesting there is that the civil
codes have receded steadily in importance, as more and more of
the matters with which they are concerned have become the sub-
ject of what civil lawyers call "special legislation.' 3 The ever-
growing body of separate statutes reinforces the traditional preem-
inence of enacted law within civil law systems but diminishes the
influence of the codes themselves.
THE MANY VARIETIES OF STATUTORY LAW
The important position of statutes alongside case law in the

14
common law and codes in the civil law is now well recognized.
Indeed, the only place where this aspect of modern legal life seems
to be insufficiently appreciated, is, as I will discuss further pres-
ently, in the usual law school curriculum. It has been less widely
noticed, however, that modem enacted law differs in kind both
from older common law statutes and from the great continental
10. Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV.

527, 527 (1947).
11. G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982).
12. 'The 19th century was the century of codification in Western Europe, be-
tween the Napoleonic codification of 1804-1810 and the German codification of 1900.
The code was considered the natural means of presenting legal norms, that is en-
acted law, which was then considered to be the exclusive source of law." Tallon, La
Codification en France, 27 ANNUAIRE DE LGISLATION FRANqAISE ET ETRANGitRE 12
(1978).
13. N. HORN, H. K6Tz & H. LESER, GERMAN PRIVATE AND COMMERCIAL LAW: AN
INTRODUCTION 51-52 (T. Weir trans. 1982). Sacco, supra note 4, at 69.
14. J. HURST, DEALING WITH STATUTES 1 (1982); see generally Heldrich,
Normuberflatung, in FESTSCHRir FOR KONRAD ZWEIGERT 811 (H. Bernstein, U.
Drobnig, & H. Katz eds. 1981), translated as Heldrich, The Deluge of Norms, B.C.
INT'L & COMP. L. REV. 377 (1983); Savatier, L'inflation legislative et l'indigestion du
corps social, 1977 RECUEiL DALLoZ SIREY CHRONIQUE 43; Steiner, The Legalization
of American Society, 81 MICH. L. REV. 1285 (1983); Wilcox, Too Many Laws, 125 NEW
L.J. 1082 (1975).
Justice Ellen Ash Peters of the Connecticut Supreme Court has pointed out the
extent to which statutes predominate in the work of state court judges. A recent
sample of cases from her own court revealed that only 10% were pure common law
cases. Peters, Common Law Judging in a Statutory World, 43 U. Prrr. L. REV. 995,
996 (1982).
codifications. There is not just more of it; it now comes in greater

variety. Some of these varieties are new in the relatively brief his-
tory of legal regulation. Part of the reason we do not notice this is
because we use the single word "statute" to describe many differ-
ent types of legislation. For example, in the common law systems,
there are still statutes of the sort known to Blackstone-mere re-
statements of or patches on the common law. 15 There are also stat-
utes of the kind, to which Pound and Landis devoted much
attention, which potentially establish new principles or directions
for the common law. 16 But in addition, and, in the United States
especially since the New Deal, the body of statutory law has been
greatly augmented by what one may call bureaucratic law: the
statutes which create regulatory agencies with broad delegated
powers to make rules and to adjudicate and the great laws of the
welfare state-revenue-raising laws, social security laws, and the
various public assistance laws. To the extent that the regulatory
laws which increasingly dominate modern legal systems tend to be
highly detailed and specific, they create a world of their own in
which the role of judge-made law is limited. 17 Insofar as such leg-
islation represents the temporary compromise of conflicts among
organized interests, 8 or "the pressures of narrow interest groups
rather than any coherent view of the public interest,"'19 it poses
special interpretive problems for judges who must attempt to ap-
ply it. The judge's search for a guiding principle or policy may be
futile: such statutes often have multiple purposes, some of which
may be in tension or conflict with each other.
At first it was difficult for common law judges to adjust to the
proliferation of legislation within the legal system. Their back-
15. Much of the work of the National Conference of Commissioners on Uni-

form State Laws has produced statutes of this type.
16. Statutes establishing new rights and obligations of landlords and tenants
would be examples of this type of legislation. Pound, who was familiar with conti-
nental European theories of code interpretation, suggested that the new American
statutes could, in appropriate cases, be treated as sources of principles for the deci-
sion of cases not expressly covered by their words or as starting points for reason-
ing by analogy. The principles embodied in modern legislation were, he argued,
entitled to as much respect as were the old principles of the common law. In fact,
after the 19th century "discovery" that judges were often making, not finding, law,
legislation began to seem to have a superior claim to legitimacy than did the com-
mon law. Pound, supra note 9, at 406-07. See also Landis, supra note 9, at 217; Wil-
liams, Statutes as Sources of Law Beyond Their Terms in Common-Law Cases, 50
GEo. WASH. L. REV. 554 (1982).
17. See Friedman, On LegalisticReasoning-A Footnote To Weber, 1966 Wis. L.
REV. 148, 165.
18. G. CALABRESI, supra note 11, at 77.
19. Posner, Economics, Politics, and the Reading of Statutes and the Constitu-
tion, 49 U. Cm. L. REV. 263, 274 (1982).
ground and training had given them little preparation for dealing
with statutes. Roscoe Pound called attention to this problem in his
1908 essay complaining about judicial obstruction of social legisla-
tion.20 The judges' hostility to such legislation was due not only to
their disapproval of its content, he said, but to the fact that they
21
regarded a statute as an "alien element" in the legal system.
They had been taught that statutes were either declaratory of the
common law or remedial, and they expected legislation to "[fur-
nish] rules for particular, definite situations. '22 But modern stat-
utes increasingly failed to comport with these models, and many
judges were at a loss as to how to handle them.
In the early 1930's, a young professor at Harvard Law School
took up the problem posed by Pound of the proper relation of the
courts to modern legislation. Even more than at the turn of the
century, the legal world was by then dominated by statutes. James
Landis wrote in 1934: "Though ... perhaps, the major portion of
the law is now skeletonized between the covers of the statute
books, little beyond mere recognition of that fact has altered the
present approach to law." 23 At that stage in his life, Landis be-
lieved that legislation was the most important source of law, and
he pioneered in making it both an academic subject and a sci-
ence.24 He was intensely interested both in the art of statutory
drafting and in the role of judges who had eventually to decide con-
crete cases in statutory areas. In a still influential essay, he out-
lined new ways of dealing with statutes, methods more
appropriate to modem legislation than the wooden approaches of
nineteenth century judges. 25 He educated judges to see statutes
not as mere exercises in rule-making but as frequently represent-
ing "[cihanges of attitude, new points of departure, germinating
principles. '26 In many cases, he pointed out, what was called for
was not for the court to fit the statute into the background of com-
27
mon law but to mold the common law to the statute.
Eventually, after the historic struggle over the constitutional-
ity of the New Deal legislation, American courts came to accept the
new economic and political order and judges became more adept
at meshing statutory and common law. Even with this general in-
20. Pound, supra note 9, at 383.

21. Id. at 384-85.
22. Id. at 389.
23. Landis, supra note 9, at 213.
24. D. RITCHIE, JAMES M. LANDIS: DEAN OF THE REGULATORS 34-36 (1980).
25. Landis, supra note 9.
26. Id. at 219.
27. Id. at 223.
1984] SOURCES OF LAW
crease in judicial-legislative interaction, however, Llewellyn's

study of the work of state appellate courts in the 1950's showed
that American judges were still much less at home in working with
statutes than they were with case law. He noted "[t]he uneven-
ness, the jerkiness, the consequent lessening of reckonability
which attends statutory work as against work with case law au-
thorities .... *28 He contrasted American efforts with the tech-
niques of civil law lawyers:
It is indeed both sobering and saddening to match our
boisterous ways with a statutory text against the watch-
maker's delicacy and care of a theologian, or of a continen-
tal legal craftsman, or even-of a good American lawyer
when the language he is operating with is that not of a
29
statute, but of a document.
As recently as 1978, the then Chief Judge of the First Circuit Court
of Appeals, stating his impression that statutory interpretation
problems were the number one claimants on his court's time, la-
mented that lawyers arguing before that court too often only
30
scratched the surface of complex statutory problems.
Part of our continuing difficulty in dealing with statutes arises
from the fact that the variety of modern statutes calls for a more
differentiated treatment than that offered by conventional theories
of statutory interpretation and construction. 3 1 Even Pound's and
Landis' demonstrations of how statutes could be used as the start-
ing points for development of a new, vigorous, principled body of
case law apply to fewer and fewer statutes. It is, of course, possi-
ble to find exemplary "lines" of statutory interpretation that are
comparable in their way to lines of case law development. 32 Such
elegant theories and models for statutory interpretation are of de-
creasing utility, however, in dealing with the really difficult
problems of statutory interpretation that are quite common today.
Let us see why this is so.
In the first place, piecemeal amendment tends to destroy any
original coherence or rationality a regulatory scheme may have
28. K. LLEWELLYN, THE COMMON LAW TRADITION 379 (1960).

29. Id. at 380.
30. Coffin, A Backward Look Forward, 12 SUFFOLK U.L. REv. 203, 204, 207
(1978).
31. As Justice Breitel wrote in 1959: "All statutes are not alike, and, in fact, are
not treated similarly. Yet judicial standards of construction and rationale of inter-
pretation purport to apply a single approach to all statutes. What is required is an
acknowledged pluralistic treatment." Breitel, The Courts and Lawmaking, in LE-
GAL INSTITUTIONS TODAY AND TOMORROW 2-3 (M. Paulsen ed. 1959) (citation omit-
ted). See also G. CALABRESI, supra note 11, at 214.
32. See E. LEvI, AN INTRODUCTION TO LEGAL REASONING 27-57 (1949).
had. Another difficulty is that statutory interpretation often does

not simply involve a single statute and the kind of problem that is
usually presented in legal methods materials. As the legislative
mills grind on, the courts must frequently deal with the tension,
conflict, and interplay among two or more statutes-sometimes
within the same field but passed at different times in response to
different problems, 33 sometimes within different but overlapping
fields, sometimes complicated by the presence of administrative
regulations in the area, and sometimes further complicated by the
relation between state and federal law. 34 Labor law and securities
law, for example, are replete with such problems. In such circum-
stances, the value of precedent is diminished; overrulings and
changes of direction are frequent. Many scholars have recently
lamented the fact that repeal of statutes is much less common than
thepassage of new laws which often fit uneasily with preexisting
legislation. 35 In dealing with the problems of giving content to, or
reconciling, conflicting statutes, state and federal judges, as a Te-
Poel lecturer pointed out in 1977, are engaged, not in traditional
judicial decision-making, but, for better or worse, in statesman-
ship. 36 The foregoing is not a list of atypical situations. These are
the kinds of statutory problems that young lawyers have to deal
with every day when they leave law school for most jobs in the
public or private sector. Are we preparing them in law school to
deal with such problems? Do our course materials contain such
problems? Do we have a view of the legal system that enables us
to construct such teaching materials?
Our civil law colleagues encounter parallel difficulties. Just as
modern statutes in common law systems have little resemblance
to their nineteenth century predecessors, there are significant dif-
ferences between modern continental legislation and the nine-
teenth century codes. 37 The civil codes, which now constitute only
a small part of the total volume of existing legislation in such coun-
33. See, e.g., the Supreme Court's vacillation on the relation of the Taft-Hartley
Act of 1947, § 301 to § 4 of the Norris-La Guardia Act of 1932 in Sinclair Refining Co.
v. Atkinson, 370 U.S. 195 (1962), overruled in Boys Mkts., Inc. v. Retail Clerks Union,
Local 770, 398 U.S. 235 (1970).
34. See, e.g., the tension among the National Labor Relations Act of 1935, the
Social Security Act of 1935, and the New York Unemployment Compensation Law
of 1931, in New York Tel. Co. v. New York State Dep't of Labor, 440 U.S. 519 (1979),
concerning whether the National Labor Relations Act implicitly prohibits the State
of New York from paying unemployment conpensation to strikers.
35. G. CALABRESI, supra note 11, at 6; Savatier, supra note 14, at 43.
36. Wyzanski, Magistrate Montaigne'sFollower, 11 CREIGHrON L. REV. 503, 508
(1977).
37. N. HORN, H. KOTZ & H. LESER, supra note 13, at 52; Sacco, supra note 4, at 68;
Tallon, supra note 12, at 17.
tries, tend to lay dcwn general principles rather than to provide

specifically for particular situations. Ordinary legislation does not
maintain the same level of generality, however, nor is it character-
ized by as much conceptual and terminological consistency as are
the codes.3 8 Regulatory legislation, such as land use control, tax
law, wage and price control, labor law, rent and eviction control,
etc., is more particularistic and more sensitive to political and eco-
nomic currents than the codes. The fact is that legislatures have
often found it hard to make necessary reforms within the structure
of the hallowed civil codes, especially where the interests of organ-
ized economic groups are affected. 39 They have resorted instead to
statutes outside the codes which are more easily amended as con-
stellations of interests and power shift and as circumstances
change. Modern statutes in civil law systems require different ap-
°
proaches from those brought to the interpretation of the codes.
In both the Anglo-American and Romano-Germanic systems,
therefore, statutes are not only pervasive but increasingly regula-
tory, volatile, and little related in form and spirit to the former pri-
mary sources of law.
The increased volume of enacted law of all kinds in modern
Western legal systems has increased the necessity for its construc-
tion, interpretation, and application by courts. Thus, in this sense,
common law courts have become more like their civil law counter-
parts in that they are now largely engaged in dealing with enacted
law. But in neither system are traditional techniques of interpre-
tation particularly well-suited to the task of dealing with the vari-
ous types of modern statutes. This brings me to my next point
which concerns changes in judge-made law.
THE DECLINE OF PRECEDENT

One of the major differences between case law in a common
law system and case law in the civil law is that the judicial function
in the civil law systems has traditionally been regarded as limited
to deciding particular cases, 41 while common law courts are not
only supposed to settle disputes between the parties before the
38. In France, much modern legislation has been collected into what have been
called "codes." But, as Denis Talon has pointed out, these "codes" merely collect
diverse statutes and regulations within a given subject matter area. Tallon, supra
note 12, at 16-17.
39. Audit, Recent Revisions of the French Civil Code, 38 LA. L. REV. 747, 755-56
(1978).
40. See generally L. DuGurr, supra note 6, at ch. 3. See also, for Italy, Sacco,
supra note 4, at 67.
41. E.g., FRENCH CIVIL CODE, Art. 5: Judges are forbidden to decide cases sub-
mitted to them by way of a general and regulatory decision.
court but also to give guidance as to how similar disputes should

be handled in the future. 42 The reasoned elaboration of precedent
has traditionally been the principal device for achieving the opti-
mum balance between continuity and growth in Anglo-American
law. Changes occurring over the twentieth century, however, have
considerably affected this function of the common law courts. We
have already noted that the proliferation of regulatory law, while
affording an abundance of occasions for litigation, does not neces-
sarily offer the court wide scope for interpretation or for reasoning
from principles contained in statutes. Second, courts in the United
States, especially federal courts, have increasingly been called to
rule upon problems of social conflict which cannot easily be re-
solved by the reasoned elaboration of principle. The judge in pub-
lic law litigation has increasingly become a public "policy planner
and manager." 43 Third, decisions of the United States Supreme
Court in important cases in recent years often show little effort on
the opinion writer's part to build a bridge to preexisting authority.
They often seem to simply balance the interests involved or react
to the facts of the particular case. Frequently, they appear to be
merely the products of majority vote.
Finally, there seems to have been a significant change in the
very nature of decision-making in common law courts generally.
This change concerns the relative importance of the two tradi-
tional functions of common law case law: that of settling the dis-
pute between the parties and that of providing principled guidance
for the future. As P.S. Atiyah pointed out in his inaugural lecture
at Oxford University in 1978, there is apt to be a tension between
these two functions: a decision which does justice in all the cir-
cumstances of the case is often likely to conflict with the desire to
encourage or discourage certain types of behavior in the future."
Atiyah makes a convincing case, which seems to be applicable at
42. As Karl Llewellyn put it:

The court can decide the particulardispute only accordingto a general rule
which covers a whole class of like disputes. Our legal theory does not ad-
mit of single decisions standing on their own. If judges are free, are indeed
forced, to decide new cases for which there is no rule, they must at least
make a new rule as they decide.
K. LLEWELLYN, THE BRAMBLE BUSH 42-43 (1960) (first published 1930) (emphasis in
original).
43. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV.
1281, 1302 (1976).
44. Atiyah, From Principlesto Pragmatism: Changes in the Function of the Ju-
dicial Process and the Law, reprintedin 65 IowA L REV. 1249, 1250 (1980). This is
essentially the same distinction Llewellyn made between the "fireside equities"
and the "situation sense." For Atiyah, as for Llewellyn, attention to guidance for
the type of situation was the more important of the two functions. K. LLEWELLYN,
supra note 28, at 44, 245, 268; K. LLEWELLYN, supra note 42, at 159-60.
least as much to the United States as to England, that modern

common law courts are less inclined than their nineteenth century
predecessors to resolve disputes by adhering to principle and are
giving much greater weight to the problem of individualized justice
in the particular case. I do not suggest that we should uncritically
accept this thesis. In particular, it seems to me that the way facts
were found and the outward appearance of principled decision-
making in the nineteenth century must have masked some very
subjective judgments in many cases. But to the extent that Atiyah
is correct, Anglo-American judicial decisions have quietly come to
assume in fact a role similar to that ascribed in theory to decisions
of civil law courts.
Speculating on the causes of the change he asserts to have
taken place in case law, Atiyah tried out the hypothesis that per-
haps the task of laying down broad rules for the future is now seen
as primarily legislative while the role of the courts is mainly just to
resolve disputes. 45 This, of course, is precisely the classical civil
law theory of the respective roles of courts and legislatures. 46 The
problem with this analysis, however, as Atiyah recognizes and as
we have already noted above, is that much modern legislation is
itself decreasingly concerned with principled guidance for the fu-
ture.4 7 Modern statutes themselves are frequently complicated by
the effort to adapt to numerous individual fact situations. In tax
law, for example, response to considerations of individual justice,
to intense lobbying efforts, or to political trade-offs have produced
a patchwork of provisions where the thread of principle can barely
be found.
All of these factors bring into question the traditional view of
the role of case law within a common law system. Our folklore has
it that the common law has the ability to adapt to new circum-
stances while maintaining continuity with the past, that it offers
reasonable reckonability through rational elaboration of principles
which are at least implicit in prior case law, statutes, or the Consti-
tution. The good judge is supposed to be not only a virtuoso of
rational activity-finding latent principles, harmonizing apparent
inconsistencies, analogizing and distinguishing-but also an artist
of persuasion, winning acceptance for his decision and legitimacy
for the judicial process in general with each convincing, well-con-
structed opinion. As Llewellyn described what he called the
"Grand Style" of judicial decision-making, it consisted in:
45. Atiyah, supra note 44, at 1259.

46. M. GLENDON, M. GORDON & C. OsAKwE, supra note 5, at 133.
47. Atiyah, supra note 44, at 1259.
[A]n as-of-courseness in the constant questing for better

and best law to guide the future, but the better and best
law is to be built on and out of what the past can offer; the
quest consists in a constant re-examination and reworking
of a heritage, that the heritage may yield not only solidity
but comfort for the new day and for the morrow.
It is a way of on-going renovation of doctrine, but

touch with the past is too close, the mood is too craft-con-
scious, the need for the clean line is too great, for the reno-
vation to smell of revolution or, indeed, of campaigning
48
reform.
The good judge, Llewellyn said, seeks to fit rule and decision "with
the feel of the body of our law," to assure "that they go with the
grain rather than across or against it, that they fit into the net
force-field and relieve instead of taughtening the tensions and
stresses. '49 Cardozo, Llewellyn, and Levi have produced memora-
ble accounts of the process at work. 50
But just as the traditional idea of a statute increasingly fails to
correspond to modern legislative reality, this traditional depiction
of case law is an inadequate description of present-day judicial be-
havior in modern common law countries. Llewellyn was able to
maintain the illusion in the 1950's only because he concentrated
heavily on private law, especially those areas which above all
others had remained oriented to the practices and expectations of
the groups they served--contracts and commercial law prior to the
development of "consumer law." Private law was the stronghold of
common law case law, and, as it shrinks, case law of the traditional
type does too.
While there thus seems to have been a certain diminution in
the role of precedent in the common law, court decisions have in-
creasingly come to be treated as important sources of law in the
civil law systems. As a practical matter, it is now generally ac-
cepted in civil law systems that judges do and should take heed of
prior decisions, especially when a consistent line of cases has de-
veloped. 51 Even when the case law has not become settled, indi-
vidual prior decisions nevertheless have some weight which varies
48. K. LLEWELLYN, supra note 28, at 36.

49. Id. at 191.
50. B. CARDOZO, THE GROWTH OF THE LAW (1924); B. CARDOZO, THE NATURE OF
THE JUDICIAL PROCESS (1921); E. LEvi, supra note 32; K. LLEWELLYN, supra note 28.
51. N. HORN, H. K6TZ & H. LESER, supra note 13, at 63; MacLean, JudicialDis-
cretionin the Civil Law, 43 LA. L. REv. 45, 47-48 (1982); Sacco, supra note 4, at 68; 1
K. ZWEIGERT & H. KOTZ, supra note 4, at 64.
according to the number of similar decisions, the importance of the

court issuing them, and the intrinsic persuasiveness of the opin-
ions. Civil and common law differ, of course, in that case law is
said to be binding in the common law by the rule of stare decisis,
while in civil law theory cases are said to be of no authority apart
from their intrinsic merits. Given the narrowness of the doctrine of
stare decisis,5 2 and the fact that decisions of certain high courts in
53
several civil law countries have been made binding by statute,
however, the sometimes asserted contrast between civil and com-
mon law systems in this area begins to appear as more of a nuance
than a major difference.
Finally, as courts in the United States begin to delegate brief-
reading and opinion-drafting to large and layered staffs and fre-
quently to dispose of cases without opinion or with short memo-
randum opinions, another traditional legal distinction begins to
fade: that between adjudication and administration. 54 The tension
between fairness for the immediate parties and guidance for the
situation-type is complicated by the presence of other factors: con-
cern for efficiency and system maintenance. 55 No study of the judi-
cial process is complete, in the United States at least, that does not
take account of the bureaucratization of the courts. This has been
one of the more recent manifestations of those changes in govern-
ment which earlier in the century produced in increasing quanti-
ties a kind of law that came to be known as administrative.
THE RISE OF ADMINISTRATIVE LAw
Starting in the late nineteenth century, as we have seen, mod-

ern statutes began to displace case law in the common law systems
and codes in civil law systems as the predominant sources of law.
Over the twentieth century, administrative regulations and deci-
sions became an increasingly important part of the legal landscape
in modern states, rivaling both legislation and judicial decisions as
sources of law. In the United States, Ernst Freund was one of the
52. The decision of a higher court is binding on lower courts in the same juris-
diction in cases "on all fours" with each other. In all other situations, stare decisis
in the common law is not a "rule" but merely an observable aspect of judicial be-
havior. In England, however, it was only in 1966 that the House of Lords announced
that it considered itself free to overrule its own prior decisions.
53. R. SCHLESINGER, COMPARATIVE LAw: CASES, TEXT, MATERIALS 551 (4th ed.
1980).
54. See Clark, Adjudication to Administration:A Statistical Analysis of Fed-
eral District Courts in the Twentieth Century, 55 S. CAL. L. RE v. 65 (1981); McCree,
BureaucraticJustice: An Early Warning, 129 U. PA. L. REV. 777 (1981), Vining, Jus-
tice, Bureaucracy,and Legal Method, 80 MICH, L. REV. 248 (1981).
55. Clark, supra note 54, at 66.
first to see the growing significance of administrative government.

As early as the 1890's, he was producing scholarship far ahead of
his time, anticipating the legal problems that pervasive regulation
would pose and insisting that legal theory take notice of legislation
and public administration. 56 But it was not until the 1930's, when
many academic lawyers became architects of the New Deal, that
administrative law found a place in the regular law school curricu-
lum. Among these lawyers was James Landis, who lost his faith in
legislation because he considered it too slow and cumbersome to
be adequate to the tasks of modern big government.5 7 Govern-
ment needed flexibility, efficiency, and expertise, all of which
seemed to Landis to be offered by administrative agencies. The
academic subject which now seemed to him much more important,
interesting, and challenging than legislation was administrative
law. Combatting resistance to expanding administrative law
courses, he told Harvard alumni in 1937: "It is not going to make
any difference who controls the government in Washington....
They can be Democrats, Republicans, Socialists, or what not-the
pervasive character of government will continue. '58 When he re-
turned to academic life as Dean of the Harvard Law School in 1945
he told the curriculum committee: "We must train men to handle
the combination of law and government. We can't go on teaching
law in the old-fashioned way." 59 Landis saw that, in a sense, the
age of legislation was already over. Nineteenth century protection
had passed into twentieth century direction. The New Deal had
become the new deck.
The phenomenon was soon reflected in the caseload of the fed-
eral courts. Mr. Justice Jackson wrote in 1952: "The rise of admin-
istrative bodies probably has been the most significant legal trend
of the last century and perhaps more values today are affected by
their decisions than by those of all the courts, review of adminis-
trative decisions apart. '60 Felix Frankfurter, who in 1947 had
called the attention of the legal community to the great proportion
of the Supreme Court's work involving statutes, 61 took up his pen
in 1957 to write about the degree to which the Supreme Court by
then was occupied with administrative law: "Review of adminis-
56. W. CHASE, THE AMERICAN LAW SCHOOL AND THE RISE OF ADMINISTRATIVE
GOVERNMENT 94-97, 136 (1982).
57. D. RrrCmE, JAMES M. LANDIS: DEAN OF THE REGULATORS 90 (1980).
58. Id. at 88.
59. Id. at 138.
60. Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J.,
dissenting).
61. Frankfurter, supra note 10, at 527.
trative action, mainly reflecting enforcement of federal regulatory

statutes, constitutes the largest category of the court's work, com-
prising one-third of the total cases decided on the merits. '62 Ad-
ministrative law, the child of the nineteenth century, came into its
own everywhere in the industrialized West in the twentieth cen-
tury. 63 New areas came under regulation; government's role in
providing social services increased. Despite sporadic and modest
attempts at deregulation, as more areas of public concern are iden-
tified, such as protection of the environment or health and safety
in the workplace, the scope of administrative law continues to ex-
pand. Today, in any highly developed Western legal system, the
laws that have the most direct impact on the lives of most people,
the laws that an ordinary person encounters most often in the
course of a lifetime, are the predominantly administrative bodies
of tax law, social security law, public assistance law, housing law,
immigration and naturalization law, and so on. 64 Administrative
law adds to modern case law and particularistic legislation yet an-
other source of law in which reckonability is problematic. Out of
the necessity to deal with a multitude of unforseeable day-to-day
contingencies, it has to repose great confidence and discretion in
officials. It is often, as Charles Szladits has said, an "ad hoc crea-
tion," uncertain, volatile and "easily affected by social, political,
'65
economic, atmospheric, etc. changes.
Though administrative law has become a permanent and im-
portant source of law in modern nations, lawyers generally still
tend to be unfamiliar with it and to feel uncomfortable about it,
66
much as their ancestors once did with regard to statutory law.
Legal education, by usually relegating the study of administrative
law to a separate course, encourages this tendency to treat admin-
istrative law as exceptional and apart, thus inhibiting the capacity
to deal with it. 67 The fact that these courses and the teaching
materials designed for them are devoted primarily to judicial deci-
sions reviewing administrative action leaves important aspects of
administrative government entirely out of view.
62. Frankfurter, The Supreme Courtin the Mirrorof Justices, 105 U. PA. L. REV.
781, 793 (1957).
63. See generally E. FREUND, ADMINISTRATIVE POWERS OVER PERSONS AND
PROPERTY (1928).
64. See K. DAVIS, ADMINSTRATIVE LAW TEXT 3-4 (3 ed. 1972); Alvarez, supra
note 8, at 49-50.
65. Szladits, The Civil Law System, in II INT'L ENCY. OF COMP. L. 15, 49, 56 (R.
David ed. 1974).
66. K. DAVIS, supra note 64, at 19.
67. A notable attempt to remedy this is J. MASHAW & R. MERRILL, INTRODUCTION
TO THE AMERICAN PUBLIC LAW SYSTEM: CASES AND MATERIALS (1975).
Yet, administrative authority everywhere begins to look like

an important coordinate branch of government whose workings
are insufficiently examined and understood. 68 It seems likely that
if legal educators accorded it a higher priority, we might make
more progress in learning how to maximize its benefits while limit-
ing its ill effects. Comparative study warns us that more is at stake
here than merely promoting efficiency and minimizing over-regula-
tion. Administrative law, in modern times, has been a principal
legal tool of totalitarian regimes. A characteristic technique of the
despot has been to leave the bulk of the legal system unchanged69
and simply to by-pass it with administrative regulations. Of
more immediate importance to Americans, perhaps, is the fact that
the interaction of federal courts and federal agencies raises largely
unexamined problems concerning the legitimacy of both within
70
the framework of traditional democratic theory.
THE RISE OF PUBLIC LAw
In classical common and civil law alike, the role of direct gov-
ernment intervention was supposed to be minimal, and it was as-
sumed that two of the main functions of the state were to protect
private property and to enforce legally formed contracts. From
this individualistic base, in which private law had predominated
and property and contract reigned supreme, the civil and the com-
mon law systems alike began moving in the late nineteenth cen-
tury toward modifying ownership rights, limiting or channeling the
power of private persons to make their own enforceable contrac-
68. If the New Deal marked the transition to administrative government in the
United States, in France, it was the Constitution of the Fifth Republic in 1958 that
was the decisive turning point in the history of the relationship between legislative
and administrative authority. The 1958 Constitution accorded to the executive an
autonomous, non-delegated, law-making power. In Article 34 of the 1958 Constitu-
tion, those matters falling within the parlimentary law-making domain are enumer-
ated. (French Constitution of October 4, 1958, in H. DE VRIES & N. GALSTON,
MATERIALS FOR THE FRENCH LEGAL SYSTEM 3, 17 (1969)). Then, in Article 37, the
Constitution states that matters other than those reserved for the legislative do-
main by Article 34 are of an executive character. Id. at 19. Thus, the legislative law-
making power, though it covers the most important matters, became the exception
and the executive-administrative jurisdiction the rule, in direct repudiation of the
traditional French doctrine of legislative supremacy.
69. See Toharia, JudicialIndependence in an AuthoritarianRegime: The Case
of Contemporary Spain, 9 LAW & Soc'y. REV. 475, 486-95 (1975). See also Loewen-
stein, Law in the Third Reich, 45 YALE L.J. 779, 787-95 (1936).
70. See generally D. ROSENBLOOM, PUBLIC ADMINISTRATION AND LAW: BENCH V.
BUREAU IN THE UNITED STATES (1983); Rabkin, The Judiciary in the Administrative
State, 71 THE PUBLIC INTEREST 62 (1983); Stewart, The Reformation of American Ad-
ministrative Law, 88 HARv. L. REV. 1669 (1975) See also T. Lowi, THE END OF LIBER-
ALISM (1969).
tual arrangements, and, at the same time, expanding the functions

of the state. The legislation of this period typically combined re-
spect for private rights with a growing sense of the social obliga-
tions of property and business but recognized the public interest
as paramount. As Dicey saw it, the fundamental principle of the
period was "faith in the benefit to be derived by the mass of the
people from the action or intervention of the State .... -71
In the traditional private law areas, modern legislation estab-
lished a new and competing set of premises. Freedom of contract
was still enshrined in the common law and the civil codes, but a
variety of mandatory provisions and prohibitions was introduced
by statutes in the name of public policy. In the area of property,
the common law and the codes still accorded a special place to pri-
vate rights, but legislation qualified the property right by sub-
tracting elements in the public interest or modified it by adding
social obligations. The new area of labor law, unlike the common
law of master and servant and the employment contract in civil
codes, emphasized the group over the individual, downgraded the
role of the will of the parties, and was replete with mandatory rules
which could not be changed by agreement. As the twentieth cen-
tury wore on, courts in the United States and Germany, in particu-
lar, began, with and without direct or indirect legislative sanction,
to take upon themselves the task of conforming contracts to judi-
cially generalized notions of fairness and reasonableness. In many
places, too, the authority of the civil codes and the common law as
sources of principles began to be superseded, not only by statutes,
but by constitutions.
While private law was thus taking on an important public di-
mension, public law was being augmented by the body of rules
necessary for the organization and management of public services.
Just as private law had been transformed by the idea that every
person has social obligations, so public law had been transformed
by the social functions of government. No longer limiting them-
selves to providing defense, police, and dispute settlement, mod-
ern states, directly and indirectly, became involved in the
provision of education, social assistance to the poor, transporta-
tion, electricity, post, telephone and telegraph services, and nu-
merous other public works and services. Contract and the market
were increasingly supplanted or supplemented as ordering mecha-
nisms by new kinds of law regarding competition, the structure
and activities of corporations, and employer-employee relations.
Yet public authorities often used government contracts and pri-
71. A. DICEY, supra note 7, at 259.

vate institutions to carry out their functions. All of these develop-

ments made it difficult to maintain another traditional distinction
72
in legal theory: that between public and private law.
The civil law systems have long been bedevilled by their for-
mal division of the law school curriculum into public and private
law and of scholars on law faculties into "publicists" and
"privatists," with the result that workers in one field are some-
times unfamiliar with important developments in the other. The
difficulties civilians have had with "fitting" labor law into these cat-
egories betray the obsolescence of the distinction. Civil law writ-
ers often say that labor law is sui generis, a "special branch" which
is "neither private nor public," or where "public law and private
law rules are actually intermingled. '73 In an important sense, how-
ever, far from being unique, it is the very prototype of modern law.
Though the common law lacks such a clear-cut and formal di-
vision of functions between public and private law specialists, it
nevertheless suffers from similar problems. Constitutional law
scholars, who comprise many of our "publicists" and who often as-
pire to do jurisprudence, on occasion show little knowledge of, or
sensitivity to, the role of the private order or even of that part of
the work of the Supreme Court which is not concerned with consti-
tutional questions. Some of our "privatists," on the other hand-
teachers of property, torts, contracts, and family law-inhabit an
essentially nineteenth century world, sustained in the illusion by
teaching materials that do not take sufficient account of the extent
to which the private law subjects have come under statutory and
administrative regulation and to which their underlying premises
have been irrevocably altered. To a great extent, the law curricu-
lum and the content of individual courses have adapted to the rise
of public law. As the functions of government have increased, new
offerings have appeared: civil rights law, employment discrimina-
tion law, environmental law, consumer law, and so on. Teachers of
the traditional private law courses to some degree have incorpo-
rated their public dimension, but much remains to be done.
SUMMARY
Civil and common law systems alike were fundamentally
72. For a discussion of the distinction, its history and its crisis, see M. GLEN-
DON, THE NEW FAMILY AND THE NEW PROPERTY 223-27 (1981); Harlan, "Public" and
"Private"Law: Definition Without Distinction, 43 MOD. L. REV. 241 (1980); Mer-
ryman, The Public Law--PrivateLaw Distinction in European and American Law,
17 J. PUB. L. 3 (1968); Papers from The University ofPennsylvania Law Review Sym-
posium on the Public/PrivateDistinction, 130 U. PA. L REV. 1289-1609 (1982).
73. Szladits, supra note 65, at 21.
transformed in the transition from liberal laissez-faire govern-

ments to modern social welfare states with planned or regulated
economies. In the process, the source of law that had distinctively
characterized each legal system, and the legal methods associated
with it, lost their centrality. First, case law in the common law and
codes in the civil law lost ground to modern statutes; second, judi-
cial decisions in the common law were increasingly detached from
their moorings in precedent while civil law judges were becoming
more conscious of and willing to exercise their law-making powers;
finally, administrative law has encroached on all preexisting
sources of law. We have entered the age of legislation triumphant,
the judge militant, and bureaucracy rampant.
Taken together, the trends described above, the increase in
regulatory and administrative law, the widening room for discre-
tion, the transition from market to mixed economies, tend, as we
have seen, to blur many of the usual distinctions made between
the legal systems of civil law and common law countries. Zweigert
and Kotz state in their treatise on comparative law that "[t] he the-
ory of legal families has so far proceeded as if the only law worth
taking into account were what European lawyers call private
law. '7 4 No doubt, this has been due in part to the fact that com-
paratists have traditionally concentrated on private law. 75 In the
future, as comparative lawyers increasingly turn to the study of
constitutional and administrative law, and to particular areas, such
as labor law and property, where public and private law are mixed,
it is likely that the Anglo-American and Romano-Germanic sys-
tems in developed countries will be seen as parts of a single "West-
ern" legal family. 76 Within this family, it is probable that new and
unconventional groupings of legal systems will emerge and that a
country may be said to belong to a given legal group for one pur-
pose but to others for other purposes. 77 Already, differences be-
tween adversarial and non-adversarial systems, and between
systems with greater or lesser degrees of judicial review are the
bases for new and important classifications.
Neither the present day Anglo-American systems nor the Ro-
mano-Germanic systems exist any longer in the forms they had at
the turn of the century. Their distinctive style of reasoning, which
Max Weber called logical formal rationality, and contract, which he
74. K. ZWEIGERT & H. KbTZ, supra note 4, at 59.

75. Id.
76. See M. GLENDON, M. GORDON & C. OSAKWE, supra note 5, at 13. See gener-
ally David, On the Concept of "Western" Law, 52 U. CIN. L. REv. 126 (1983).
77. M. GLENDON, M. GORDON & C. OsAKwE, supra note 5, at 13. See also N.
HORN, H. KOTZ & H. Leser, supra note 13, at 13.
identified as their distinctive legal institution, are both in decline. 78

Many of the differences that once seemed significant between the
civil and the common law are becoming blurred or hazy, as are the
great separations within legal systems between public and private
law, courts and legislatures, and formal adjudication and
administration.
In the new situation, the traditional mechanisms for maintain-
ing reasonable predictability and continuity, while permitting flex-
ibility and growth, have fallen out of equilibrium. Traditionally, in
the common law, predictability and continuity were afforded by le-
gal rules developed in cases and by the doctrine and practice of
stare decisis, while flexibility and growth were furnished by the
rules of equity and the techniques for limiting and distinguishing
precedent. In the codified systems of the civil law tradition, pre-
dictability and stability were promoted by the "written law" of the
codes, while flexibility and growth were permitted, internally, by
general clauses tempering rigid rules and externally by interpreta-
tion, made more supple by the absence of a formal rule of stare
decisis.
In both of these traditional systems, the present-day predomi-
nance of regulatory law has diminished the role of the traditional
mechanisms-case law and the codes-for maintaining continuity
and reckonability. In this new situation, it would seem at first that
the civil law systems have the methodological advantage, in that
techniques for statutory interpretation are now of more utility
than are pure case law techniques. But in both systems, the use of
traditional legal methods to gain relative predictability is of limited
utility because modern statutory law, unlike the civil codes, gener-
ally is neither stable nor particularly rational (in the sense of being
principled and systematic). The practitioners of law have had to
struggle to deal with these changes, but legal theory has lagged
behind. If one acknowledges how profoundly the sources of law
have been transformed, one must also recognize how inadequate
the tools currently used for legal analysis have become.
IMPLICATIONS FOR LEGAL EDUCATION
What are the implications for legal education of the fact that
we approach the study of our present legal system with a concep-
tual apparatus that was developed for an earlier and different sys-
tem? It will not come as a surprise to you that I am going to
advance the view here that the exaggerated place still accorded,
78. See notes 111, 114 infra; see also WEBER, supra note 3, at 275.
respectively, to case law and civil codes in common and civil law
education does not promote the development of the skills needed
to survive in and improve the legal environment of administrative
states. But I wish to make clear at the outset that my criticism of
our over-emphasis on court decisions does not imply condemna-
tion of the case method as one method of teaching law.
It is helpful, I think, to remember why Christopher Columbus
Langdell introduced both the reading of cases and the case method
of teaching at Harvard Law School in 1870. He was motivated by a
concern similar to the one I have expressed here: he wanted to
introduce primary sources into a curriculum that relied almost ex-
clusively on textbooks. At that time, it was only natural that, as his
idea caught on, American law schools in their formative stages
would concentrate on the source of law that then appeared most
important (court decisions) and the type of law that then seemed
central (private law). We cannot blame Langdell and his followers
for the fact that, over a hundred years later, our own curriculum,
especially in the first year, has failed to keep up with changes in
the primary sources and types of law. It is hardly Langdell's fault
that we still concentrate mainly on reading appellate decisions in-
volving private controversies. If we followed his reasoning, rather
than copying his curriculum, we would have diversified our offer-
ings long ago. Instead, our law schools have remained extraordina-
rily court-centered. 79 We rely mainly on cases in law teaching; we
emphasize the judicial development of the law; we produce an
enormous literature on the Supreme Court, and our legal philoso-
phers concentrate heavily on the nature of the judicial process.
This court-centered tradition has been pervasive in the American
law school, but it has been most tenacious in the usual first-year
law school curriculum, a fact which has given rise to much criti-
80
cism in recent years.
79. W. TwING, KARL LLEWELLYN AND THE REALIST MOVEMENT 5 (1973).

80. Stewart Macaulay wrote in 1982:
There is probably far more legislation in the first-year courses today than
when I was a law student. Nonetheless, my perusal of first-year casebooks
suggests to me that the common law is taught as the core while statutes are
viewed as intrusions which create "exceptions." Perhaps this is less true of
criminal law and civil procedure than contracts and torts. Of course, even
contracts can become a statutory course if large amounts of the Uniform
Commercial Code are considered: yet it is hardly a typical statute.
Macaulay, Law Schools and the World Outside Their Doors II: Some Notes on Two
Recent Studies of the Chicago Bar, 32 J. LEGAL EDUC. 506, 519 n.47 (1982). In the
same journal, Roderick Macdonald stated:
Collectively, the courses making up the compulsory curriculum imbue stu-
dents with the view that relations between private citizens, as mediated by
the courts in an adversarial adjudicative context on the basis of an uncodi-
Despite well-founded criticisms of excessive emphasis on the

common law in the curriculum, few would deny that the case
method of teaching law is still well-suited for the purpose that led
to its practically universal adoption in the United States. 8 1 As Max
Rheinstein wrote,
It has proven to be by far the most effective device to turn
a student into a lawyer, i.e., a person who knows how to
use concepts, rules and institutions, to give close attention
to facts, to use precedent or to distinguish the new case
from the old, to recognize the interests at stake, to see the
individual issue within the context of 82
the public interest,
in other words, to think as a lawyer.
What is needed is not the abandonment of the case method but its
supplementation with other materials and methods. Critics of the
case method often seem to be unaware of the extent to which this
has already taken place. After all, it is a rare set of law school
teaching materials today that does not contain, in addition to court
decisions, statutes, excerpts from treatises and law reviews, news-
paper articles, forms, social science data, and, in a return to the 83
pre-Langdellian usage, textual passages written by the author.
The pure "casebook" is a thing of the past. Similarly, law school
teaching methods, while still concentrating heavily on case analy-
sis, have become more varied, with teachers using the lecture tech-
nique where appropriate, devising problems for discussion or
drafting exercises, and calling on audio-visual aids which are now
readily available in most law schools. 84 Nevertheless, it is still gen-
erally the case that law teachers and the materials they use do not
give the same careful, scholarly attention to the products of legisla-
fled law of precedents, continue to be today's predominant legal concerns.

Surely no law teacher seriously entertains this belief in 1980.
Macdonald, CurricularDevelopment in the 1980s: A Perspective, 32 J. LEGAL EDUC.
569, 572 (1982). See also Harvard Law School Committee on Educational Planning
and Development, Report, Part I, ch. 1, at 12-13 (Tent. Final Draft, Apr. 21, 1982):
It would be surprising if many students did not take away from the first
year some strong impressions, e.g., that the common law is primary; that
appellate decisions are the chief source of law and the skills of marshalling
and parsing them the chief techniques of legal persuasion; that the most
significant part of legally cognizable activity occurs in private, proprietary
dealings and relationships; and that formally adversarial formats comprise
the quintessential mode of working out conflict.
81. R. STEVENS, LAw SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1950s TO
THE 1980s xiv, 123 (1983).
82. M. RHEINSTEN, THE CASE METHOD OF LEGAL EDUCATION: THE FIRST ONE
HUNDRED YEARS, in I MAx RHEINSTEIN: GESAMMELTE SCHRIFrEN/COLLECTED
WORKS 321, 330 (H. Leser ed. 1979). See also R. STEVENS, supra note 81, at 268-69,
278.
83. M. RHEINSTEIN, supra note 82, at 328-331.
84. Id. at 332.
tures and administrative agencies that they do to the work of

courts and scholars.
The logical place to start to cure what is essentially a distor-
tion of emphasis is by providing incoming students with a system-
atic overview of the legal system. In a first-year introduction-to-
law course, with proper materials, the parts of the legal order and
their relation to each other should fall into place. This is hardly a
new idea. Over 200 years ago, William Blackstone deplored the
way students in the Inns of Court were plunged into the study of
law with no sense of the system as a whole:
A raw and unexperienced youth, in the most dangerous
season of life, is transplanted on a sudden into the midst of
allurements to pleasure, without any restraint or check
but what his own prudence can suggest; with no public di-
rection in what course to pursue his inquiries; no private
assistance to remove the distresses and difficulties which
will always embarrass a beginner. In this situation he is
expected to sequester himself from the world, and, by a
tedious, lonely process to extract the theory of law from a
mass of undigested learning; or else by an assiduous at-
tendance on the courts to pick up theory and practice to-
gether, sufficient to qualify him for the ordinary run of
business. How little, therefore, is it to be wondered at,
that we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so un-
promising a search, and addict themselves wholly to
amusements, or other less innocent pursuits; and that so
many persons of moderate capacity confuse themselves at
first setting out, and continue ever dark and puzzled dur-
85
ing the remainder of their lives!
What law student of today would not agree with Sir William that
"if... the tender understanding of the student be loaded at the
first with a multitude and variety of matter, it will either occasion
him to desert his studies, or will carry him heavily through them,
'86
with much labor, delay and despondence.
Even though American law students now receive their legal
education in an academic setting rather than in courses organized
by the bar, most of them are still initiated into the mysteries of the
law by the time-honored method of direct immersion. Some of the
modern advocates of the sink-or-swim system have even claimed
that its defects are really virtues: they will make a better man of
85. 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *31.

86. Id. at *35.
you. The following is from the Centennial History of the Harvard

Law School:
[The student] is the invitee . .. , who, like the invitee in
the reported cases, soon finds himself fallen into a pit. He
is given no map carefully charting and laying out all the
byways and corners of the legal field, but is left, to a cer-
tain extent, to find his way by himself. His scramble out of
difficulties, if successful, leaves him feeling that he has
built up a knowledge of law for himself. The legal content
of his mind
87
has a personal nature; he has made it
himself.
This boot camp approach to the first year may have its merits, but
my guess is that most beginning students would benefit more from
an introductory course of the type Blackstone outlined in his ini-
tial lectures as the first Vinerian Professor of English law at
Oxford:
[The law teacher] should consider his course as a general
map of the law, marking out the shape of the country, its
connections and boundaries, its greater divisions and prin-
cipal cities: it is not his business to describe minutely the
subordinate limits, or to fix the longitude and latitude of
every inconsiderable hamlet. His attention should be en-
gaged. . . "in tracing out the originals and as it were the
88
elements of the law."
This course, as Blackstone envisioned it, should include legal his-
tory (" [t] hese originals should be traced to their fountains, as well
as our distance will permit")8 9 , jurisprudence and comparative law
("[t]hese primary rules and fundamental principles should be
weighed and compared with the precepts of the law of nature, and
the practice of other countries") 90 , and even what we would now
call legal sociology ("their history should be deduced, their
changes and revolutions observed, and it should be shown how far
they are connected with, or have at any time been affected by, the
civil transactions of the kingdom").91
Blackstone advocated this approach, which has yet to be tried
on any large scale, against that of many of his contemporaries who
believed that on-the-job training was preferable to the unsys-
tematic legal training then being offered by the bar in the Inns of
Court. Blackstone argued that apprenticeship, even to a skillful
87. Quoted in R. STEVENS, supra note 81, at 54.

88. 1 W. BLACKSTONE, supra note 85, at *35.
89. Id.
90. Id. at *36.
91. Id.
attorney, was not an adequate remedy for the shortcomings of aca-

demic legal education:
If practice be the whole he is taught, practice must also be
the whole he will ever know: if he be uninstructed in the
elements and first principles upon which the rule of prac-
tice is founded, the least variation from established prece-
dents will totally distract and bewilder him: ... he must
never aspire to form, and seldom expect to comprehend,
any arguments drawn a priori, from the 92
spirit of the laws
and the natural foundations of justice.
The virtue of a systematic introduction to law, then and now, is
that it furnishes the beginning student with a framework for the
organization and retention of the knowledge he or she is acquiring
about law. The difficulty is in constructing a framework that is rea-
sonably faithful to the geography of the legal world that students
will enter upon their graduation. Perhaps this difficulty explains
why introduction-to-law courses-which were rather popular in
the 1950's and 1960's-by 1970 were on the wane. 93 In the course of
preparing this lecture, I examined the catalogs of the thirty-six law
schools whose student bodies had the highest LSAT's and under-
graduate grade averages according to a recent survey. 94 Of these
thirty-six, only four had a required first-year course on legal
method or legal system, while four others had one-week intensive
introduction-to-law courses. 95 I then examined the standard texts
available for teaching first-year courses surveying the legal sys-
tem, and I found that, with very few exceptions, these books tend
96
to concentrate on appellate court decisions and private law. I
therefore speculate that the reason these courses are not so wide-
spread as they once were may have something to do with the lack
of adequate materials. The lack of adequate materials brings us
92. Id. at *32.

93. R. STEVENS, supra note 81, at 212.
94. Van Alstyne, Ranking the Law Schools: The Reality of Illusion, 1982 AM. B.
FOUND. RESEARCH J. 649, 664-65.
95. The four schools with required introductory courses are: Boston Univer-
sity School of Law (1982-83 Bulletin); University of Chicago Law School (1982-83
Bulletin); New York University School of Law, (1981-83 Bulletin); and University of
Southern California Law Center (1983-84 Bulletin). The four with one-week inten-
sive introductions to law are Brigham Young University Law School (1982-83 Bulle-
tin); University of California School of Law at Davis (1982-83 Bulletin); Columbia
University School of Law (1982-84 Bulletin); and Stanford University School of Law
(1982-83 Bulletin).
96. Notable exceptions are J. DAVIES & R. LAWRY, INSTrUTIONS AND METHODS
OF THE LAW (1982) and H. JONES, J. KERNOCHAN & A. MuRPHY, LEGAL METHOD:
CASES AND TEXT MATERIALS (1980), both of which accord substantial space to statu-
tory analysis. Davies and Lawry also deal extensively with legislative process, legal
scholarship as a source of law, and constitutional and administrative law.
back to the conceptual problem I identified at the beginning of this

lecture: that of the effect that long-unexamined terminologies and
categories have on our everyday professional life.
This problem has meant not only that first-year law students
generally fail to get a good sense of the legal system as a whole but
that they get very little exposure to modern statutory analysis and
to public and administrative law. It is nothing short of astonishing
that in 1982 a Harvard Law School committee, appointed to study
the curriculum, was urging the same type of reforms that Ernst
Freund had suggested at the turn of the century and which James
Landis had advocated in the 1930's. The Harvard committee's rec-'
ommendations, though, are only for an experimental "alternative"
first-year program:
We would . .. hope that the alternative program would
give due attention to such matters as legislative politics as
a source, and statutes as a form, of law; the impact on the
legal system of modern governmental activity-fiscal,
managerial, and regulatory; the impact on the legal system
of features of modern social and economic life such as or-
ganizational size, bureaucracy, transactional complexity,
and technological advance; and the possibilities of modes
of dispute resolution that are non-adversarial or non-
97
formal.
It is testimony to the power of institutional inertia that a program
so modest and obvious is to be entered upon only as an experi-
ment in one of the nation's leading law schools.
Yet, so long as such courses do not exist, or present courses do
not more accurately correspond to current legal reality, future law-
yers start out ill-equipped for their journey across the terrain of
the modern administrative state. The map they carry was falling
out of date at the end of the nineteenth century, and their compass
points in the direction of a past that can never be recaptured. Most
of them will survive, just as students in the Inns of Court did, by
studying their surroundings and figuring out for themselves, after
much effort, what skills they need. But they and the legal system
could be better served if academic legal education performed its
precisely academic function more conscientiously by providing
them with a more adequate theoretical framework for their
studies.
Unlike most law students in the United States, aspiring law-
yers in England and the continental countries typically become ac-
97. Harvard Law School Committee on Educational Planning and Develop-

ment, Ch. 4-Reexamination of the First Year, Report 4-5 (Tent. Final Draft, June
1982).
quainted with the structure and the grammar of their legal

systems through formal introductory courses which purport to be
general and systematic. The continental law student, in particular,
is not left to sink or swim in a sea of primary sources. Indeed,
many years ago, the civil law method of legal education was held
up as a model for American law schools by several distinguished
legal educators concerned about what seemed to them to be our
rather unscientific approach to learning law.9 8 The idea remains a
good one, but today the European courses which inspired it have
encountered the same kinds of difficulties as did the American in-
troduction-to-law courses of the 1950's and 1960's. Introductory law
courses in continental law faculties are typically taught by profes-
sors of civil law and consist mainly of an introduction to the law of
the civil codes.9 9 This basic orientation to the fundamental con-
cepts of private law in the codes, like that of the common law stu-
dent to case law, largely fails to take account of the legal materials
and the types of law which are in fact predominant in modern legal
systems. As in the United States, but further hampered by their
division of labor between the public and private law sides of the
faculty, European law schools find it difficult to construct a com-
prehensive course and materials on the legal system as a whole.
Now, I would like to take a moment to rule out two possible,
but unintended, inferences from what I have been arguing. First, I
would not wish to be understood as suggesting that an introduc-
tion-to-law course should simply conform to the de facto predomi-
nance of statutes and public and administrative law in
contemporary legal systems. The problem with this approach, to
paraphrase Blackstone, would be that if statutes, administrative
law, and public law are all that law students are taught, that is apt
to be all they will ever know. The advance of government regula-
tion in modern societies does not mean that the study of private
ordering should be abandoned by the law schools, any more than
urbanization means that small communities should be ignored by
the sociologist. Legislation and regulation do not cover everything,
nor are all disputes litigated. Indeed, it is important for the law
teacher to pause for a while in those areas where law defers to
other social norms-religious, conventional, and customary-even
though these are becoming as rare in the administrative state as
98. J. REDUCH, THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVER-
SITY LAw SCHOOLS 41-45 (1914); Tiedeman, Methods of Legal Education-III,1 YALE
L.J. 150, 151 (1892).
99. J. BAUMANN, EINFtyHRUNG IN DIE RECHTSWISSENSCHAFr 38-39 (6th ed. 1980); 1
J. CARBONNIER, supra note 4, at 9; N. HORN, H. K6TZ & H. LESER, supra note 13, at 66
("[T] he BGB has maintained its position as the centerpiece of all legal education").
are wilderness areas in a crowded world. Teaching materials have

been designed for some of these purposes, but the only book which
attempted to cover all them was Hart and Sacks' The Legal Pro-
cess, issued in 1958.100 Not particularly intended for first-year stu-
dents and now outdated in several respects, its influence and
popularity over the years attest to the fact that it met a real need of
professors and students for a comprehensive treatment of Ameri-
can law and legal institutions. 10 1 It was one of the many great vir-
tues of these materials that they emphasized the role in our legal
system of private ordering by individuals and non-governmental
institutions.
My second caveat is that implementing the principles I have
outlined here would not necessarily require the curtailment or
elimination of the traditional first-year private-law subjects. The
usual substantive courses on property, torts and contracts can and
often do serve as our best vehicles for presenting a variety of as-
pects of modern legal systems. The prevalence of legislation, the
rise of public and administrative law, and the widening role of dis-
cretion in adjudication are irrevocably altering the way teachers
approach these basic first-year courses. Further, as some propo-
nents of curricular reform fail to recognize, these courses have all
changed greatly in content in recent years: contract materials now
widely incorporate the Uniform Commercial Code; tort books, the
increasing variety of methods of risk distribution; and property
texts, the proliferation of constitutional issues and state and fed-
eral statutory and administrative regulation. That these "big
three" still dominate the first-year curriculum reflects the depth of
the commitment our legal system once had to private ordering.
Whether they deserve to dominate depends on how well their con-
tent has adjusted to quite a different mix of market and public reg-
ulation. I would, however, like to pose the question whether the
required first-year program should not also include some course
which is as paradigmatic for the legal system of today as contract
was for the late nineteenth century. A very few schools have
moved in this direction. Of the thirty-six supposedly leading law
schools whose latest catalogs I have examined, only three require
first-year courses on legislation, 10 2 one on labor law, 10 3 and one on
administrative law. 0 4 In seven schools which have first-year elec-
100. See generally H. HART & A. SACKS, supra note 4.

101. See R. STEVENS, supra note 81, at 271.
102. Georgetown University Law Center (1982-83 Bulletin); Rutgers School of
Law (1981-83 Bulletin); Stanford University School of Law (1982-83 Bulletin).
103. University of Pennsylvania Law School (1982-83 Bulletin).
104. University of Washington School of Law (1982-83 Bulletin).
tives, a student may choose a statutory course. 10 5

Of all the possible candidates for inclusion in the first year as a
vehicle for teaching modern law, it seems to me that labor law is
made-to-order. With the proper materials, it could introduce the
beginning student to all of the interacting components of the
American legal system. The collective bargaining relationship af-
fords the opportunity to look at private ordering, negotiation, arbi-
tration, mediation, and the role of an important intermediate group
in our society. The functioning of the National Labor Relations
Board and its relation with the federal courts provides an excellent
introduction to the administrative process. In addition, the field is
a museum of important and interesting statutory interpretation
problems, arising both under legislation which reinforces the col-
lective bargaining process and that which, like Title VII, displaces
it. It is also the setting for a number of historic constitutional law
decisions and an excellent point of entry into the complexities of
federal-state relationships. Recent state court treatment of the in-
dividual employment at-will contract furnishes material for a clas-
sic study in case law evolution. 10 6 Also, far from least important,
labor law is an area which is likely to immediately engage a first-
year law student's interest. Everyone brings to the classroom
recollections of his own and his family's experiences in the work
place, thus minimizing the difficulties that might attend a first-year
course in, say, tax or administrative law. Finally, opinions, as-
sumptions, and values are apt to become explicit rather quickly in
such a course, opening a window to the moral and political issues
that are often ignored in legal discourse.
I have dwelt here on the first-year curriculum because it is
there that the grip of the past is tightest. But a surprisingly unsys-
tematic approach to learning is not only a defect of the first year; it
pervades the entire law school curriculum. Persons who have de-
voted much time and effort to curriculum reform in recent years
have lamented that the program of most American law schools
"has no perceptible structure, sequence, or organization,' 1 0 7 al-
though it does communicate strong and rather misleading
105. George Washington University National Law Center (1982-83 Bulletin);

Harvard Law School (1981 Bulletin); University of Michigan Law School (1981 Bul-
letin); University of Pennsylvania Law School (1982-83 Bulletin); University of Vir-
ginia School of Law (1981-82 Bulletin); University of Wisconsin Law School (1982
Bulletin); Yale Law School (1982-83 Bulletin).
106. See generally Glendon & Lev, Changes in the Bonding of the Employment
Relationship: An Essay on the New Property, 20 B.C. L. REv. 457 (1979).
107. Gorman, Legal Education at the End of the Century: An Introduction, 32 J.
LEGAL EDUC. 315, 327 (1982). See also Michelman, The Parts and the Whole: Non-
Euclidean CurricularGeometry, 32 J. LEGAL EDUC. 352 (1982).
messages to the students 10 8 by emphasizing litigation over its al-

ternatives and cases over other sources of law.
It is apparent by now, I hope, that what I have proposed is not
a revolution, but rather recognition, consolidation, and furtherance
of advances that have already taken place here and there in Ameri-
can law schools. What is needed, often, is not new courses, but
new teaching materials. I have made only a few specific sugges-
tions and have not offered any observations about what, if any-
thing, should be omitted from the first year. This is because,
ultimately, the curriculum of each law school does and, I believe,
should reflect the strengths and interests of its personnel. Espe-
cially in a period of what Thomas Kuhn calls "paradigm
change,"' 1 9 diversity and experimentation among law schools
seem highly desirable.
IMPLICATIONS FOR COMPARATIVE LAW AND LEGAL

SOCIOLOGY
The technical apparatus and formal qualities of legal systems
not only present obstacles to first-year students and to those of us
who would like to understand our own legal system better, but
they pose formidable methodological problems for comparative
lawyers and legal sociologists. How can we penetrate the external
characteristics of a familiar or foreign legal system so as to really
comprehend it and to be able to compare it with other systems?
This was one of the problems that Max Weber took up in his essay
on law in Economy and Society.110 Weber there developed a set of
analytical tools which are still found useful by persons who are
engaged in the sociological or comparative study of law. However,
the civil and common law systems with which Weber was con-
cerned no longer exist in the forms in which he knew them over
sixty years ago. The legal order he described has slowly been
transformed into the bureaucratic order that he foresaw.
Given the time and place of his writing, it is hardly surprising
that Weber should have regarded contract as the "most essential
feature" of modern private law."' As Anthony Kronman has
pointed out, Weber devoted more of his sociology of law to contrac-
tual association than to any other topic." 2 Weber observed that, in
108. See Cramton, The Ordinary Religion of the Law School Classroom, 29 J.
LEGAL. EDUC. 247, 252-53 (1978); Gorman, supra note 107, at 327.
109. T. KUHN, supra note 2, at 66.
110. See generally WEBER, supra note 3, at ch. III (Fields of Substantive Law)
and ch. IV (Categories of Legal Thought).
111. Id. at 101.
112. A. KRONmAN, MAX WEBER, ch. 5 (1983).
comparision with past societies, his own society seemed to be

characterized by a greatly expanded freedom of contract in eco-
nomic relations but by a much narrower range of freedom in sex-
ual relations than had existed in many other cultures. 113 Today, of
course, the situation is again reversed, with restrictions on sexual
relationships rapidly dropping out of Western legal systems and
with economic relations widely and heavily regulated.
As contract was for Weber the characteristic legal institution
of his time, what he called logical formal rationality was its special
style of reasoning. 114 Logical formal rationality is the method of
legal thought in which rights and obligations of individuals are de-
termined in a process which takes into account only the general
characteristics of the facts and subjects them to abstract rules,
themselves derived through logical generalization from facts. 115 A
leading example, in common or civil law, would be the classical law
of contracts: in theory,1 16 if the contract was entered into in the
proper way, any formal requirements were met, and it was not ille-
gal, the court would enforce it without looking into the surround-
ing circumstances, the individual characteristics of the parties, or
the social effects of the agreement. The transformation of case law
in common law systems and the marginalization of the civil codes
in continental systems represents, in Weberian terms, a transition
from systems in which logical formal rationality was predominant
to ones in which "substantive rationality" and "substantive irra-
tionality" now figure more importantly. To the extent that this
move has been toward individualized justice, in which decisions
are influenced by the particular facts of each case, judged on "an
ethical, emotional, or political basis," rather than according to gen-
7
eral norms, the move has been toward substantive irrationality."
For example, marital property cases in England and the United
States, where the judge no longer divides property on divorce ac-
cording to who owns it or according to a fifty-fifty community prop-
erty rule, but rather is authorized by the legislature to divide it in
the way that seems just under all the circumstances, would fall
into the substantively irrational mode. To the extent that the move
has been toward decision-making according to principles, but prin-
113. WEBER, supra note 3, at 100-01, 135.

114. Id. at 275.
115. Id. at 63.
116. In practice, the courts were probably less formalistic than their opinions
would indicate. See Friedman, supra note 17, at 163.
117. "Lawmaking and lawfinding are 'substantively irrational'.., to the extent
that decision is influenced by concrete factors of the particular case as evaluated
upon an ethical, emotional, or political basis, rather than by general norms."
WEBER, supra note 3, at 63.
ciples which are ethical, utilitarian, or political, rather than legal

principles derived by generalization or interpretation, the method
has become, in Weber's terms, substantively rational. 118 Cases in
which equalization of bargaining power or economic duress are ex-
plicit factors in decision-making would be examples of decisions in
the substantively rational mode. 1 9
Against the background of Weber's legal sociology, one recalls
that the rise of what Atiyah calls "principle" in nineteenth century
Western legal systems coincided with the need of a large private
economic order for what Weber called "calculability.' ' 20 Just as
Weber speculated about the complex connections between mod-
ern capitalism and logical formal rationality in law, today we are
led to wonder how the gradual transition described above from
principles and calculability to administrative and judicial discre-
tion and legislative and administrative particularism is related to
the decline in the private order. But this is a subject for another
day.
As we have seen, logical formal rationality had already begun
to erode, and freedom of contract had begun to decline, even in the
continental legal systems of Weber's time. Indeed, he foresaw why
and how both would or could move off center stage. He realized
that demands for "social" law in the late nineteenth century would
lead to a decline in formalism.' 2 ' In the German Civil Code of 1900,
the safety valves in the form of general clauses, importing stan-
dards of good faith and good morals into its highly formal structure
would tend, he predicted, to lead toward individualized decision-
making. 122 Weber saw another threat to formality in the fact that
"realist" and "free law" theories would appeal to lawyers and
judges by making them feel more important. 12 3 So far as contract
is concerned, Weber knew that freedom of contract had never been
without limits wherever it had existed and that it expanded and
contracted with the market. 124 Thus, in a marketless society, he
speculated, legal rights would rest mainly, not on contract, but on
118. Id.
119. A further distinction may be taken within the substantively rational mode
between principles which directly bear on results and those procedural norms that
affect the structuring of institutions or organize participation, without directly influ-
encing the outcome. The latter form of rationality has been called by some writers
"reflexive." Teubner, Substantive and Reflexive Elements in Modern Law, 17 LAw
AND Soc'Y. REV. 239, 251, 255 (1983).
120. WEBER, supra note 3, at 305.
121. Id. at 308-09.
122. Id. at 307.
123. Id. at 309.
124. Id. at 100.
the commands and prohibitions of the law itself. 125 In this respect,
many later events now seem to have been but the unfolding and
detailing of Weber's intuitions.
Weber had also speculated that traditional "private law" could
conceivably disappear from "wide areas of social life which would
today fall within its sphere."'1 26 In such a case, which Weber said
had "never prevailed anywhere in its pure form, . . . all forms of
law become absorbed within 'administration' and become part and
parcel of 'government'."' 127 He foresaw that with the advance of
rational, functional, and specialized organization in both govern-
mental and private association, the legal system itself-its struc-
tures, personnel, and norms-would become bureaucratized: that
regulatory law would become the dominant form of law.
In his treatment of freedom of contract and the formal quali-
ties of law, Weber identified dilemmas which persist in all modern
Western legal systems. Formal rationality, because of its abstract
character, will often violate ideals of substantive justice in individ-
ual cases. 128 Freedom of contract, because it in essence delegates
the power of the state to private individuals, will tend to favor the
economically stronger, to promote the unequal distribution of eco-
nomic power and, to perpetuate the status quo. 129 This critique of
formal justice has been absorbed into modern legal thought, but
Weber's companion analysis of substantive justice generally has
not. Weber pointed out that substantively rational (or irrational)
justice can counteract the power of the economically stronger and
offer the hope of more finely tuned individual justice but that it
inevitably introduces into the system more arbitrariness (because
individuals become more dependent on the grace and power of the
authorities) and instability (because predictability and the basis
for future planning are lost).130 Thus, we get a characteristically
complex and agonizing Weberian conclusion: formal justice pro-
motes the interests of those who wield economic power at any
given time but also offers reckonability and shelter from the arbi-
trary power of the state; substantive rationality and irrationality,
on the other hand, promote individualized justice and provide
shelter from the power of the economically stronger but promote
13 1
authoritarianism and lend themselves to tyranny.
125. Id.
126. Id. at 44.
127. Id.
128. See id. at 228.
129. Id. at 98-101.
130. Id. at 228-29.
131. On the one hand, formal justice is "repugnant to all authoritarian powers
At this point it is well to remember that Weber's categories of

substantive and formal rationality or irrationality are merely heu-
ristic devices. No legal system or institution is a pure example of
formal or substantive rationality or irrationality. As a practical
matter, modern Western legal systems appear to be seeking simul-
taneously certain goals which are always in tension-the predict-
ability and protection from the Leviathan that are associated with
formal justice and the refined sense of individual fairness and pro-
tection from the economic power of the stronger that are associ-
ated with substantive justice. Thus, Weber identified one of the
principal problems of law in modern administrative states: how do
we find the right balance between substantive and formal justice?
In this light, some of the most significant differences among legal
systems today may be in the means with which they have chosen
to maintain their notions of the rule of law while pursuing the am-
bitious goal of constructing social welfare states.
This lecture has been a plea for renewed attention to legal
method, not because method is an end in itself, but because an
improved methodology can aid us to identify and address the ur-
gent legal-political problems of our time. The categories of legal
thought are not and never will be to law what the periodic table is
to chemistry. As Karl Llewellyn once said, "to classify is to dis-
turb."'1 32 Thus, as we order our knowledge, the idea should be to
disturb as little as possible. This means that our legal classifica-
tions must be revised from time to time to keep them as close as
possible to a changing social reality. Method should become in law
what it has begun to be in certain other human sciences: not an
object of study or "a set of rules to be followed meticulously," but a
33
"framework for collaborative creativity."'
* . . because it diminishes the dependence of the individual upon the grace and
power of the authorities." On the other, it is repugnant to democracies "because it
decreases the dependency of the legal practice and therewith of the individuals
upon the decisions of their fellow citizens." Thus, formal justice tends to appeal not
only to "those who wield the economic power at any given time," but also to those
who wish "to break down authoritarian control or to restrain irrational mass emo-
tions for the purpose of opening up individual opportunities and liberating capaci-
ties." Id.
132. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 COLUM. L. REV.
431, 453 (1930).
133. B. LONERGAN, METHOD IN THEOLOGY Xi (1972).

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THE SOURCES OF LAW IN A CHANGING

What I propose to do in this lecture, therefore, is, first, to make

2. The obligatory citation here is T. KUHN, THE STRUCTURE OF SCIENTIFIC REV-

accompanying elaborate techniques for dealing with precedent, is

Case law modified by statute is the essence of the Anglo-American judicial

SOURCES OF LAW IN MODERN WESTERN STATES

THE RISE OF STATUTORY LAw

Starting in the late nineteenth century, in both civil and com-

today cases not resting on statutes are reduced almost to zero."' 1

THE MANY VARIETIES OF STATUTORY LAW

The important position of statutes alongside case law in the

10. Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV.

codifications. There is not just more of it; it now comes in greater

15. Much of the work of the National Conference of Commissioners on Uni-

20. Pound, supra note 9, at 383.

crease in judicial-legislative interaction, however, Llewellyn's

28. K. LLEWELLYN, THE COMMON LAW TRADITION 379 (1960).

had. Another difficulty is that statutory interpretation often does

tries, tend to lay dcwn general principles rather than to provide

THE DECLINE OF PRECEDENT

court but also to give guidance as to how similar disputes should

42. As Karl Llewellyn put it:

least as much to the United States as to England, that modern

45. Atiyah, supra note 44, at 1259.

[A]n as-of-courseness in the constant questing for better

It is a way of on-going renovation of doctrine, but

48. K. LLEWELLYN, supra note 28, at 36.

according to the number of similar decisions, the importance of the

THE RISE OF ADMINISTRATIVE LAw

Starting in the late nineteenth century, as we have seen, mod-

first to see the growing significance of administrative government.

trative action, mainly reflecting enforcement of federal regulatory

Yet, administrative authority everywhere begins to look like

THE RISE OF PUBLIC LAw

tual arrangements, and, at the same time, expanding the functions

71. A. DICEY, supra note 7, at 259.

vate institutions to carry out their functions. All of these develop-

transformed in the transition from liberal laissez-faire govern-

74. K. ZWEIGERT & H. KbTZ, supra note 4, at 59.

identified as their distinctive legal institution, are both in decline. 78

IMPLICATIONS FOR LEGAL EDUCATION

79. W. TwING, KARL LLEWELLYN AND THE REALIST MOVEMENT 5 (1973).

Despite well-founded criticisms of excessive emphasis on the

fled law of precedents, continue to be today's predominant legal concerns.

tures and administrative agencies that they do to the work of

85. 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *31.

you. The following is from the Centennial History of the Harvard

87. Quoted in R. STEVENS, supra note 81, at 54.

attorney, was not an adequate remedy for the shortcomings of aca-

92. Id. at *32.

back to the conceptual problem I identified at the beginning of this

97. Harvard Law School Committee on Educational Planning and Develop-

quainted with the structure and the grammar of their legal

are wilderness areas in a crowded world. Teaching materials have

100. See generally H. HART & A. SACKS, supra note 4.

tives, a student may choose a statutory course. 10 5

105. George Washington University National Law Center (1982-83 Bulletin);

messages to the students 10 8 by emphasizing litigation over its al-

IMPLICATIONS FOR COMPARATIVE LAW AND LEGAL