Academic journal article The Yale Law Journal

Theory about Law: Jurisprudence for a Free Society

Academic journal article The Yale Law Journal

Theory about Law: Jurisprudence for a Free Society

Article excerpt

Theory about law was the center of Myres McDougal's intellectual enterprise. Each of his treatises and monographs, even his occasional papers and court pleadings, every dissertation, and, as many of you here know, every student paper done under his supervision, was and had to be an explicit and intentional application of his theory. Whether it was resource use and planning in the Connecticut Valley, in the oceans, or in outer space, whether it was the law of war or human rights, treaty interpretation or constitutional interpretation, each study tried to be an integrated application of the theory.

From the beginning, theory about law was McDougal's primary interest. Fresh from Oxford, a newly minted Analytical Positivist, he arrived at Yale and told a bemused Dean Clark that he intended to teach jurisprudence. And he did. Whether his course was negotiable instruments, debtors' rights, property, or any of the areas of international law he addressed, he was always teaching one year-long seminar on jurisprudence, closely analyzing the theories of others while elaborating his own.

With the exception of the theory of the constitutive process, the jurisprudence was essentially completed in manuscript by the late 1950s. Many of you here today studied jurisprudence with McDougal from different versions of that manuscript, then called Law, Science and Policy. For reasons biographers will explore, the manuscript was only published in 1992 in two volumes under the title of Jurisprudence for a Free Society: Studies in Law, Science and Policy.(1) It was co-authored by Harold Lasswell. A paperback student edition appeared in 1997. The dedication page of the volumes has three words: "To our students." To all of us here today.

Many modern theories of law trace their origins to a single insight. H.L.A. Hart saw that Austin's notion that law was the command of a political superior could not account for the authoritative component of law and addressed that missing item in the rest of his work.(2) Hans Kelsen saw that historicist conceptions of law could not serve the needs of decision-makers in the modernizing multiethnic empire that was the Dual Monarchy and invented a "pure theory of law" to rise above them.(3) McDougal's insight came from the deficiencies of Legal Realism, the persuasion to which he was converted at Yale, and which he then had the opportunity to test and revise in the powerfully formative experience of serving in the government during the war.

One of Realism's patron saints, Holmes, had said, "The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the law."(4) Legal Realists demonstrated that predictions about the future decisions of courts could never be made on the basis of text--black-letter law--alone and many of them scurried off in different directions in search of a silver bullet, a contextual factor that would provide the key to predicting the future. Returning to New Haven after the war, McDougal understood that the Realists were making six major mistakes.

First, in their search for predicting how decisions would be made, they were still locked in the essential passivity of Positivism. They were predicting what someone else would do. But McDougal understood that a critical part of jurisprudence's calling was to assist decisionmakers actively by helping to clarify goals, and to provide information about means, about the aggregate consequences of different options, and so on.

Second, in their focus on courts or on the application of law, Realists were ignoring all the components of decisions--pre-law making, lawmaking, law-terminating, law appraisal--that preceded and followed courts and other institutions of application. But McDougal understood from his governmental experience that these other functions are indispensable parts of understanding and practicing law.

Third, in their focus on law, Realists were overlooking what political and legal struggles were about: life opportunities or "values. …

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