Law and the Great Plains: Essays on the Legal History of the Heartland

By John R. Wunder | Go to book overview
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6
Practicing What You Preach Against? Karl Llewellyn, Legal Realism, and The Cheyenne Way
Scott LandersIn The Cheyenne Way, Karl Llewellyn and Edward Hoebel asserted that they applied a legal realist methodology in their study of nineteenth-century Cheyenne legal culture. 1 Their methodology involves a behavioral approach to studying law, focusing on "cases of trouble and how they were handled." 2 This methodology is contrasted with what they call an "ideological" approach that emphasizes " 'rules' which are felt as proper for channeling and controlling behavior." 3 Although Llewellyn may not have denounced so much as urged supplementing an ideological or doctrinal approach, 4 he significantly underestimated its importance and the extent to which such an approach underpins his own methods.In this chapter I assess the extent to which Karl Llewellyn and Edward Hoebel failed to adopt a genuinely non-ideological approach in investigating nineteenth-century Cheyenne dispute-settlement processes and offer a partial analysis of why any similar attempt would be likely to fail. If this assessment and analysis are correct, they support the following conclusions:
1. It is misleading for Llewellyn to characterize his method as an alternative to an ideological approach;
2. The sort of empirical study of law advocated by Llewellyn has value for jurisprudence only to the extent that it can fit within the general theoretical framework of rule-centered jurisprudence; and

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