…and law?

No more than they can we suppress The universal wish to guess Or slip out of our own position Into an unconcerned condition. W. H. Auden LAW LIKE LOVE That law must partake in some kind of formalism is obvious. But the importance of any particular formalism is an entirely different matter. Currently the elementary form of Anglophone law is taken to be the mode of legal thought that Duncan Kennedy calls “Classical Legal Thought.” However, there is another possibility. There were at least two earlier formalisms: the writ system, where all legal knowledge was hung on one or another of the writs, and Protestant Baconianism, where all legal knowledge was tested against scripture (Schweber 1999). Thus, classical legal thought may not have arisen full-blown from the head of Savigny, but in response to some perceived inability of law to dictate the terms of its use under one or both earlier formalisms. In America, legal realism is usually taken to be the “social” antithesis of classical legal thought. Again, there is another possibility. Roscoe Pound’s sociological jurisprudence, realism, legal process, and the earlier and continuing Restatement project too, may all have been responses to some perceived inability of law to dictate the terms of its use under classical legal thought. All can be seen as having been designed to shore up the fortunes of law as capital, social capital, networks of influence, and professional imperatives continued to become more important ways of ordering, not just economic, but also social life. On this understanding, “contemporary legal thought” may then be understood as the unsteady persistence of two among many possible formalisms – classical legal thought and what Duncan Kennedy calls “the social” – neither of which is sufficient to dictate law’s use. The two have been combined in the hope that together they will do better than either one separately. If this is so, then the emergence of contemporary legal thought might be seen as but another step in the declining importance of law, though not of lawyers. Instead of the imperialism implicit in the locution “law and…” one of the social sciences, at this point it may be that law is the dutiful dependent walking a few steps behind its betters, as in “…and law.” I shall explore this possibility.