TWO WORKS OF KARL LLEWELLYN
| Date | 01 September 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01157.x |
| Published date | 01 September 1967 |
TWO WORKS
OF
KARL LLEWELLYN
“
HOW
TO
MAKE KNOWN TEUFELSDROCKH AND HIS
BOOK TO ENGLISa READERS?
’’
(Sartor Resartus)
INTILODUCTION
“
Besides, to state the Philosophy
.
. .
without the philosopher, the
ideas
of
Teufelsdriickh without something
of
his personality, was
it
not to insure both
of
entire misapprehension?
’’
(Sartor Resartus).
There can have been few more colourful personalities ever
to
have engaged
in
the profession of law teaching than Karl Llewellyn.
There can have been even fewer who have presented
to
the uniniti-
ated such a bewildering fagade of seeming paradoxes: he was
probably the only American citizen ever to have been awarded the
Iron
Cross and, having fought
on
the German side in
1914,
in
1917
he made several unsuccessful attempts to enlist in the American
Army; the most ardent evangelist of legal scepticism; an icono-
clastic lover of tradition; an ethical relativist with a pronounced
sympathy for Natural Law; a
‘‘
rule sceptic
”
who devoted the
better part of ten years of his life to the drafting of a major code;
a tough-minded romantic; a
‘(
realist
”
who was sometimes accused
of extreme nominalism; an unmethodical man of disorderly mind
whose greatest contributions were to
‘‘
legal method
”;
the teacher
of a jurisprudence addressed specifically to the practising lawyer
and, paradox
of
paradoxes, a law teacher who was also a lyric
poet. As a personality alone, Llewellyn would make a fascinating
subject for study
*;
but, in America at least, there is a growing
realisation that he has been one of the most influential jurists of
this century.
The range of Llewellyn’s contributions is impressive
;
he is
generally acknowledged to have been the leading interpreter and
spokesman of the realist movement
;
the Uniform Commercial Code
is commonly referred to as
‘‘
Llewellyn’s Code
”;
he is widely
recognised as having made important contributions to anthropo-
logical field method and to the study
of
so-called
“
primitive law
”
;
Pound referred to his theory of the function of law as
“
much the
best outline
of
the task of a sociology of law and of the way of
going about performance of it which has appeared
”
*;
his work
on
warranty and title in sales has been particularly influential
on
American thinking about this branch of law; his writings
on
judicial
1
For 8ome personal impressions,
Bee
Twining:
The
Karl
Lletoellyn
Papers,
2
Jurisprudence
22
st
p.
196
(1959).
Chap.
I
(forthcoming).
Slk
SE~T.
1967
TWO
WORKS
OF
KARL
LLEWELLYN
515
processes, culminating in
The Common Law Tradition
:
Deciding
Appeals,
have made an impact not only
on
juristic thinking, but
also
on
the daily work of a significant number of judges and advo-
cates. Less well
known,
but
no
less important, are his contributions
to teaching method, to the development of legal
"
case-books
"
in
the United States, to the invention of devices for making available
legal services to all classes of the population, to the sociology of the
legal profession and to inter-disciplinary cooperation. He was most
directly influential as a teacher.
His
flamboyant manner was not
to
everybody's taste and some of his students could not understand
him at all. But many more found him an inspiring teacher and
for a few a course from Llewellyn was seminal. A remarkable
number of the present generation
of
American law teachers, includ-
ing some of the best
known,
are former pupils
of
Llewellyn and a
few are his avowed disciples.
In
America Llewellyn is a controversial figure, but his reputa-
tion is the reputation of a giant.
In
the United Kingdom he appears
scarcely
to
have a reputation at all,3 except as an occasional Aunt
Sally.
In
so
far as he has not been completely ignored, more
attention has been paid to a few provocative statements
in
some
of
his
early works than to anything else and all too often he has been
misrepresented
or
misunderstood. The differences between the
English and the American legal systems and between the predo-
minating attitudes
to
law
on
either side of the Atlantic can only
partially explain this neglect. Among other factors contributing to
what is essentially a failure of communication two deserve special
mention. First, there is
no
single published piece, either, by
Llewellyn
or
by a commentator,* which sets out his basic ideas as
an integrated whole. Eight days before his death in
1962
he com-
pleted the preface to a selection of his essays, articles and verse;
but this collection, which was published posthumously under the
title
Jurisprudence: Realism in Theory and Practice,
does not yield
such a clear picture
of
the basic unity of his thinking as do some of
his
unpublished writings. Unfortunately he did not live to complete
his projected
"
last work
on
jurisprudence," which would have
gone a long way towards filling this gap.
It
is not surprising
in
the circumstances that there has hitherto been
no
widespread realisa-
tion
of
the extent to which his writings
on
a wide variety of subjects
are closely linked to a single consistent point of view. One of
his
*
e-g.,
his
name did not appear
in
the index of three important
books
that
emanated from Oxford
in
1961,
the year before
his
death: Guest's
Ozjwd
Essays
in
Jurisprudence,
Cross
on
Precedent
in
English Law
and Hsrt's
The Concept
of
Law.
The
latter work does contain discussions of certain
passag06 from
Bramble
Bush.
More surprising was the absence of reviews of
The Common Law Tradition: Deciding Appeals
(1960),
which attracted
8h08t unprecedented attention in the United States.
4
An
intellectual biography is in
mum
of preparation. Llewellyn's contribution
to the collection entitled
My
Philosophy
of
Low
(1941)
does
not
perform
the
function satisfactorily.
5
See
Twining,
op.
cit.,
note
1.
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