First encounters
I arrived in Chicago in September 1957, newly married, a mixture of diffidence and Oxonian arrogance. I was immediately subjected to culture shocks. One of these was the regimentation in the Law School. It was like returning to school. Soon after my arrival I was asked to go and see Roger Cramton, a young member of faculty who was standing in for Professor Sheldon Tefft as director of the Commonwealth Fellows Program. He made it clear that my choice of courses was subject to his approval and that I could not just sit at the feet of Karl Llewellyn or take only courses on Jurisprudence and Philosophy.1
After some wrangling we negotiated a package which included a mixture of ‘hard’ law and theory courses, with some private research with Llewellyn. But our negotiations nearly fell apart over a course entitled ‘The General Theory of Price’. Cramton told me that this was required of Commonwealth Fellows as it was a foundation course for some of the most valuable courses on offer, such as Levi and Director’s Anti-Trust. When told that this was a basic course on economics, I said that I was not interested. However, I consulted some fellow students. This was, they said, a fairly rigorous introduction to economics, but it was quite easy to pass provided that you agreed with the teacher, Aaron Director. What did he believe in, I asked? A free market, was the reply. This was the heyday of the Welfare State and Butskellism in the UK and Director’s monetarist views were portrayed to me as being to the right of any party in British politics at the time. This description was essentially correct, for Director, as a hard-line doctrinaire disciple of Milton Friedman, presented a particular version of micro-economic analysis as if it were a science without any ideological underpinnings.
I was outraged and stormed back to see Cramton. I told him that I categorically refused to take Aaron Director’s ‘General Theory of Price’ because my fellow students told me that, if you disagreed with the teacher, you failed. I disagreed with him. I told Cramton that I thought that I had come to the University of Chicago, not the University of Moscow (this was the year of Sputnik), and that I refused to be brainwashed by someone whose ideology was diametrically opposed to mine. I meant what I said. I was so shocked and angry, I was prepared to leave if I was required to take this particular course. If I had left, this would have been exceedingly foolish and probably the end of my academic career. That would have delighted my parents. Fortunately, Cramton crumbled before this onslaught and, after clearance from higher authority, I was exempted from the requirement. Things could well have been different if Sheldon Tefft, the tough old-school originator of the programme, had not been on leave. I won the exchange, was excused the course and never learned enough economics. A serious mistake.2
I felt vindicated when I met Aaron Director for the first time. A group of foreign students was taken to see a well-known local programme for urban renewal. This involved bulldozing acres of slums to replace them with ‘low-cost housing’. It was clear to me that the former inhabitants could not have afforded the new rents. We were not told what happened to them. At a party after this outing, I raised this question within a group which included a small man with a Hitler moustache, who turned out to be Aaron Director. He said: ‘They were not economically fit to survive.’ At first, I thought this crass caricature of Darwin was intended as a joke. It was not. I never recovered from this first encounter with economic fundamentalism.3
The University and the Law School
I had come to Chicago to study under Llewellyn, but in fact most of my courses were taught by others and I was fully assimilated into the Law School, and to a lesser extent the University. So before relating my first encounters with Llewellyn, I shall sketch this broader institutional context. The University of Chicago, the Law School and the windy city all provided new experiences. The University, financed largely by Rockefeller money, ruthlessly paid for and pursued Excellence; it did this in an abrasive dialectical fashion, so that one found that whenever one opened one’s mouth one’s assumptions were liable to be challenged, even at breakfast. The Law School fitted that culture. It was also more grown up and professional than undergraduate Oxford.
At the time I did not realise that the faculty included some of the most famous names in American academic law: Dean Edward Levi, Harry Kalven, Max Rheinstein, Kenneth Culp Davies, Walter Blum and Malcolm Sharp, as well as Karl Llewellyn and his formidable wife, Soia Mentschikoff. I found nearly all of them friendly, approachable and not unduly concerned about their individual reputations.4 The students were older, worked harder, and were more competitive and ambitious than those I was used to. Orally, they were more articulate and forthcoming than English students, but fortunately for a bemused Oxonian they had not learned how to write. The students acted like baby Wall Street lawyers, talked loudly, but wrote badly. When I arrived, I had simply assumed the superiority of Oxford and it took me a long time to learn otherwise.
For me, the main significance of our first time in America relates to the Law School, which made a profound impact on me. It was a strongly integrated, sociable and collegial community and students had quite close contact with most of this star-studded faculty, whether or not one took their courses. Dean Edward Levi had a deliberate policy of recruiting a diverse individualistic faculty representing a range of political, moral and juristic views. Almost the only thing that they most had in common was that they were anti-doctrinaire.5 Levi can take some credit or responsibility for pioneering economic analysis of law, but in the late 1950s this was only one small part of a varied multidisciplinary programme in the School and it had not yet become the dogmatic Friedmanite free-market ideology that developed later under the influence of Director and Posner.
In his excellent book, The Common Law Tradition: A Collective Portrait of Five Scholars, written about the Chicago Law School in the 1950s and 1960s, George W. Liebmann, having emphasised the individuality and distinctive views of the subjects of his pen portraits, bravely tries to articulate a common ethos. Pointing out that they belonged to a generation that came to maturity during the Depression and in the shadow of war, these individuals were not disillusioned revolutionaries or bitter reactionaries, but constructive thinkers concerned to ‘engage in hard thinking about how to reform, how to rebuild and how to avoid the destructive passions of an ideological age’:6
They did not reason backward from either ideology or received doctrine. They believed in an empirical approach to the law and heeded an admonition attributed to Judge Augustus Hand: ‘Hold fast to the English tradition’, by which he meant the common law tradition. It was that conviction that supplied the title of Karl Llewellyn’s last book, the reason that Philip Kurland testified as he did at the Bork hearings, the explanation why Harry Kalven’s writings were so fact-specific, the focus of Edward Levi’s Introduction to Legal Reasoning, and the motive for Kenneth Davis’ long interviews with administrators.
They were convinced that law served best when it served its own values, and that predictability, incremental change, conformity to community needs and customs, respect for ascertainable legislative will were high among these. As for the Constitution, the darling of the modern law teachers’ nursery, several, most notably Kurland and Davis, were explicit in saying that its primary bite was procedural … 7
I find this account plausible.
America opened up new horizons, but it is difficult to pinpoint how and how much it changed us. The one major exception is American legal education. This is how I summed it up in 1996–7:
After I had recovered from the initial culture shock and shed some of my Oxford arrogance, I realized that I was in a more sophisticated, lively and demanding institution than I had even conceived as possible. The University of Chicago provided an alternative model to Oxford of an institution of higher learning devoted to excellence.
Conversion to the idea of the American law school at its best and to the ideas of Karl Llewellyn at no stage involved a wholesale rejection of Oxford. It was, after all a capacity to write English and to study on my own that enabled me to cope with the pace and the bewildering range of new ideas and then to choose between them. And Oxford rather than Chicago had taught me the importance of history. But this experience both exposed and provided for some key missing elements in my legal education up to then: the linking of law to the social sciences; a dialectical approach to every issue; a highly intellectualised but nevertheless realistic approach to legal practice and the law in action; a demonstration of the interdependence of theory and practice; and a concern for justice.8
Enter Llewellyn
Llewellyn was my second choice of an American jurist at whose feet I wanted to sit. My first choice had been Lon Fuller, but Harvard did not offer me money. I arrived in Chicago rather pleased with myself as an Oxford graduate who had done some tutoring, knowing little about the United States and American law schools, and less about Llewellyn.
By the time I first met Karl I was quite well-informed as a jurist. I had attended three lots of lectures in the area at Oxford, including Herbert Hart’s; I had tutored in Brasenose for two terms, I had read widely in philosophy – linguistic analysis, political theory, philosophy of science and, above all, R. G. Collingwood (Chapter 3); I had developed some useful ideas on standpoint and questioning (Chapter 10); I also knew something about custom and customary law in East Africa. I considered myself rather sophisticated, even if I seemed to be caught in an endless regress, asking in sequence what do you mean by that? What do you mean by that? That? That?
Because I had to take a range of courses, I had fairly limited contact with Karl Llewellyn: I took one full course, audited another and he taught a small part of a third. I also wrote a paper under his supervision and had a fair amount of informal contact. I did not really get close to him until I put his papers in order in 1963–4. But he made an immediate impact. This is I how I reported my first impressions as I remembered them in 1963–4 – that is, about six years later:
English friends who had been to the United States had emphasized the bizarre: the only American ever to have been awarded the Iron Cross; joint organizer of a verse competition for law students; histrionics in the classroom; eulogies of the ‘beauty’ of the letter of credit. First impressions did not quite fit this picture; a stocky man with fierce eyebrows and a limp; traces of a parade-ground manner (trying to frighten me?); primarily interested in how much of his work I had read; embarrassing questions about negotiable instruments. Not quite the reception an Oxford man expects. We exchanged writings. I gave him my proposals for a very ambitious research project. He gave me a bundle of his articles and teaching materials and sent me away.9
My proposal was a lengthy, muddled paper about conceptual analysis. I scampered over rather than through the offprints and prepared some critical comments about his loose terminology. When we next met he had read my paper carefully and had scribbled all over it. He had also diagnosed what was wrong with me. He had brought in a book on Gothic architecture and showed me some pictures of gargoyles and other carvings – some were striking, powerful and clearly works of art. The second lot were less crude technically, but inferior as art. Llewellyn explained that the first lot had been created by master craftsmen, using only the adze. The second lot, after the invention of the chisel, had been made using only that new tool. Llewellyn explained that I was suffering from ‘Korzybskian paralysis’; I had found a bright new tool – conceptual analysis – and was now obsessed by it and over-using it.10 After that I was more deferential and became his disciple.
I wrote some papers for Karl, but my main contact in 1957–8 was with his Jurisprudence course, called ‘Law in our society’. Accompanying the lectures and classes was a set of materials which were going to form the basis for a series of lectures in Germany in the summer of 1962.11 It is reasonable to infer that this was to be a final statement of his views. Sadly, he died in February of that year and the manuscript is still unpublished, offering a substantial challenge to some future editor. Apart from a few one-to-one meetings and a superficial skimming of some of his shorter works, this is where I began with Llewellyn. It was an eccentric course, uneven in delivery, and the materials were cryptic, but it made a profound impact on me. First, this was a purported development of Llewellyn’s ‘Whole view’ – but it clearly did not claim to present a Grand Theory of Law. Indeed, he denied having one. But it did give a coherent, if elusive, picture of his conception of Jurisprudence. Having dismissed ‘Jurisprudence for the hundred’ (he said to one student: ‘what the Hell has Kant to do with my course on Jurisprudence?’12), he developed ‘jurisprudence for the hundred thousand’ (the Bar and intelligent laypeople). This is I how described it in 1973:
In working at the level of ‘jurisprudence for the hundred thousand’, Llewellyn tended to make certain disclaimers about what he was doing. For instance, in Law in our Society he explicitly excluded ‘professional’ philosophy; he maintained that his descriptive generalisations were pre-scientific’; the values he accepted were no more than ‘fighting faiths’, bolstered by ‘the best reason we can muster’; his concepts were expressed in ‘roughly workable, not “accurate” phrasing’; the basic approach was that of ‘horse-sense’ [a favourite concept]. The title ‘Law in our Society’ emphasised its American orientation. In short Llewellyn claimed neither universality nor refinement for his ideas in this context.13
This was not self-deprecation. Nor was it as unsophisticated as it claimed. Nor was it anti-intellectual. Rather this kind of jurisprudence was intended as a working theory for practitioners and other participants – it had to be simple, usable and useful. For this purpose most abstract theory was too far removed from first-hand experience and particular cases and problems:
Jurisprudence means to me: any careful and sustained thinking about any phase of things legal, if the thinking seeks to reach beyond the practical solution of an immediate problem in hand. Jurisprudence thus includes any type at all of honest and thoughtful generalisation in the field of the legal.14
It is a mistake to think that Llewellyn was mainly reacting against abstract theorising. His main target was the unsophisticated, and mainly unexpressed, working assumptions of ‘formalistic’ academic lawyers such as Langdell and Beale of Harvard, and Formal Style judges and practitioners, all of whom, to paraphrase Filmer Northrop, had legal philosophies in Llewellyn’s sense even if they did not know what their philosophy was.15
During the course he set us several short exercises: two of which I remember vividly:16 the first was to take three volumes of law reports at random from the same court with gaps of forty to fifty years between each, read the first 100–150 pages of each volume and describe the differences. This immediately produced a new lens on the law reports: the length of the judgments, their style, the kinds of cases that reached the court and something that one might call ‘the culture’ of each court were strikingly different in each period.17 Llewellyn used this approach extensively in his first-year course on ‘Elements’, giving students sequences of cases from one court (typically New York) to show how judges worked their way through tricky doctrinal problems over time, often quite like a team. So far as I can see, this approach has not been as influential on students of adjudication, especially in Comparative Law, as it should have been. It was an embodiment of Llewellyn’s main realist precept: ‘See it fresh, see it whole, see it as it works.’
The second exercise that I remember involved testing the law-jobs theory against any group of which each student had had intensive first-hand experience. The bare bones of the law-jobs theory can be restated as follows:18 all of us are members of groups, such as a family, a club, a teenage gang, a sports team, a school, a commercial organisation, a trade union, a political party, a nation, a nation state, an international non-governmental organisation (NGO), the world community. In order to survive and to achieve its aims, insofar as it has aims, any human group has to meet certain needs or ensure that certain ‘jobs’ are done. These, for purposes of study, can be broken down into five or six rough categories.
First is adjustment of the trouble-case (dispute, grievance, offence).19 When conflict or other trouble arises, it has to be resolved or, at least, kept to a tolerably low level, or else the group will disintegrate or its objectives will be frustrated or impaired. The second job, and perhaps the most important, is the preventive channelling of conduct and expectations to avoid trouble. The third, as needs, conditions and relations change, is the re-channelling of the conduct and expectations of the group. The fourth is the job of ‘Arranging for the Say and the Manner of its Saying’; that is, the advance allocation of authority and the regulation of authoritative procedures for decision. This job is prototypically the primary function of a ‘constitution’ of a club or organisation or a nation-state. Where power and authority diverge there tends to be a gap between what in fact happens and what is meant to happen. Giving a realistic account of a constitution as a kind of institution is accordingly problematic.20 The fifth job is that of ‘providing Net Positive drive: Integration, Direction, Incentive for the whole’. Llewellyn, like Bentham, explicitly linked positive and negative sanctions (rewards as well as punishments, for example) within his conception of law-government. Finally, in any group – but especially in complex groups – techniques, skills, devices, practices, procedures and traditions need to be developed, institutionalised and adjusted if the first five needs or jobs are to be dealt with adequately or well. This is what Llewellyn called ‘the job of juristic method’.21
The central question was how were dispute prevention and settlement handled in this group, how was power and authority distributed, how far were the procedures and techniques of creating and maintaining order institutionalised and so on. Llewellyn never denied that rules play a role in the doing of the law jobs, but they were for him one of a variety of means. Most students reported that they had found that the exercise helped them to understand better the dynamics of their respective groups as well as the theory. Trying to be clever, I chose to try to falsify Llewellyn’s theory by applying it to Maeterlinck’s Life of the Bee.22 The idea that bees do not have many disputes but lead orderly, seemingly regimented existences, suggested to me that there might be groups for which co-ordinating behaviour, expectations and relations were not ‘problematic’. My idea was half-baked, but I learned one lesson: Llewellyn’s law-jobs theory was not really an empirical theory; it was not interestingly falsifiable or verifiable because it had almost no empirical content, except perhaps some such proposition as: all human groups have potential and actual disputes that need to be dealt with if the group is to survive and flourish. The law-jobs theory provides a perspective and set of lenses for asking about the particular ways and techniques these problems are handled specifically within any particular group.23 The main puzzles are about the concepts: especially group, job, dispute and institution. The theory provides some useful questions for studying the how – what within jurisprudence fits under the relatively neglected topic of legal technology.24
Llewellyn’s down-to-earth approach, his concern to link theory and practice and his interest in the details of what lawyers actually do were, not surprisingly, attractive after my experiences with the gap between law in books and law in action and with the canned doctrine of the English bar exams. But there were even more important rewards. Llewellyn’s emphasis on skills, crafts and legal technology as a serious subject of study; his undogmatic stance on values (‘can’t helps’)25 whilst emphasising the central role of ethics, justice and idealism as concerns in legal practice; and, most important of all, his insistence on developing one’s own ideas and beliefs towards something approaching a personal ‘whole view’ provided much of what I had felt lacking in my earlier legal education. The avowed purpose of this course was to help each student to integrate their assumptions or beliefs about law with their beliefs about the world (cosmological, religious, political moral, epistemological, linguistic). It was probably this perspective more than anything that won me over. The first step in Jurisprudence is clarifying one’s own beliefs about law, justice and everything else. In teaching Jurisprudence, I have ever since tried to pursue this objective, whether in getting students to converse critically with classic texts in a Collingwoodian way, or to construct arguments justifying their normative conclusions, or reflecting on what is involved in understanding a topic.
Llewellyn and I got on very well together: he was intrigued by my interest in Africa and found my loyalty to Hart’s Jurisprudence a challenge. In retrospect, I recognised that his vision of law offered to fill some major gaps in my early legal education and that we were in important ways kindred spirits intellectually, though not culturally. Obviously, there are specific ideas that I have assimilated, used or even refined in my own work: the law-jobs theory; juristic method; styles of judging and argumentation; type fact situation; horse sense (uncommon sense based on experience) and so on. Later I shall have much more to say about Llewellyn and his wife, Soia Mentschikoff – the two most important people in my professional life (Chapter 7). By the time I graduated from Chicago in June 1958, I was a Llewellyn disciple. He influenced my teaching in Khartoum and Dar es Salaam, but I did not really get to grips with his ideas in depth until later, when I put his papers in order and wrote his intellectual biography.
I was in Chicago as much to learn about America as about law, and we spent weekends in museums, theatres, jazz dives and at sporting events as well as travelling to New York, Washington DC, Southern Illinois, and – I don’t remember why – Albany, NY. Although I worked steadily, I did not take my studies as seriously as the American students did. They worked very long hours, they were highly competitive, and they were very intense. We lived in a married students’ building and disconcertingly heard marital rows seemingly all around us on the infrequent occasions that spouses encountered each other. I took my studies more lightly, and even attended some meeting of the Law Wives Club, which eventually awarded Penelope a PHT (Putting Hubby Through) certificate. Penelope also worked as secretary/PA to a sociologist on the Chicago Jury Project, one of the first large scale socio-legal projects. Naturally I found this intriguing.
Looking ahead, I had heard that the University of Khartoum had a Law Faculty, the only one in acceptable anglophone Africa in 1958. I learned that they had vacancies; I applied, and was appointed to a Lectureship in Private Law from 1 September. We spent June through August in Ireland and London, where I was busily preparing lectures on Torts, Jurisprudence and Sudan Legal System. By then Penelope was pregnant and could not join me until November, where she coincided with our First Revolution.
