From Premodern to Modern American Jurisprudence: The Onset of Positivism
Feldman, Stephen M., Vanderbilt Law Review
Stephen M. Feldman* I. INTRODUCTION
What distinguished premodern from modern American jurisprudence? Whereas most commentators agree that the transition from premodernism to modernism occurred around the Civil War,1 recent writings reveal dissension regarding the nature of antebellum and postbellum jurisprudence. In a wonderfully detailed study of Christopher Columbus Langdell, his jurisprudence, and his case method of teaching, William P. LaPiana argues that a defining feature of Langdell's postbellum legal science was a positivism that contrasted with a natural law orientation characteristic of the earlier antebellum jurisprudence.2 In a provocative critical essay, Robert W. Gordon argues to the contrary: LaPiana's emphasis on natural law during the antebellum period is exaggerated and misleading, while his stress on the positivism of postbellum legal science is "incomplete and overbroad."3
Gordon does not maintain that LaPiana totally misses the mark; rather, LaPiana's mistake is one of degree. Gordon acknowledges that Langdellian legal science was positivist and that antebellum jurisprudents often were natural law theorists. Nevertheless, to Gordon, postbellum positivism and antebellum natural law were not features central to understanding the respective eras. Rather, Gordon finds that the postbellum period was most strongly defined by "generalizing ambitions to produce . . . a `philosophically arranged' body of law, a rational scheme or system of abstract categories for organizing legal knowledge."4 The antebellum period was distinguished by jurisprudential "considerations of policy or `convenience,' the functional needs of a commercial society."5 LaPiana, too, recognizes the formalistic conceptualism of the postbellum era and the policy-oriented judicial decision making of the antebellum era, but he subordinates these factors to positivism and natural law during each respective period.
In this Article, I explain and resolve the disagreement between Gordon's and LaPiana's narratives of premodern and modern nineteenth-century American jurisprudence. To do so, however, the crucial differences between premodernism and modernism in general need be set forth.6 A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value. Individuals and societies seemed to belong to, rather than exist separately from, nature and God. Because of this metaphysical unity, human access to meaning and value always remained immanent in ourselves and in the world. Hence, humans seemed capable of directly accessing and knowing eternal and universal principles that arose from or within nature or God.7 The supposed existence of these principles led to distinctive conceptualizations of the temporal, so that time or history had to harmonize with the idea of the eternal and universal. In a first stage of premodernism, time was understood to be cyclical. Civilizations would rise and fall, but the eternal and universal principles remained intact; societal history amounted to recurrence.8 The notion that humans and societies might progress endlessly was foreign to premodern thought. In a second stage of premodernism, though, history became eschatological, progressing toward a goal.9 The concept of premodern progress, however, was limited and not completely within human control. Progress was understood as a movement toward the perfect realization of the eternal and universal (natural or religious) principles in an otherwise changing and unstable world.10
When premodernism gave way to modernism, the commitment to foundationalism remained intact: Modernists believed, and still believe, that knowledge ought to, and indeed must, be firmly grounded on an objective foundation. A crucial distinction between modernism and premodernism, however, lay in their respective ideas of foundations. Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge, modernists rejected religious, natural, and other traditional footings and thus searched for some alternative foundation or Archimedean point. …