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Posted April 29, 2011

Schauer Edits Previously Unpublished Llewellyn Book on Rules

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A largely unknown book by one of the 20th century’s most influential American legal thinkers was published for the first time this month after being unearthed and edited by Professor Frederick Schauer.

Karl N. Llewellyn, one of the fathers of the movement known as Legal Realism, worked on “The Theory of Rules” in the late 1930s while at Columbia University.

“Partly because he was prickly about what he considered to be mischaracterizations about what the realists thought about rules, Llewellyn decided he would write a full book on the subject,” Schauer said. “It went through a couple of drafts and then he got interested in other things, in particular legal anthropology and the creation of the Uniform Commercial Code. He put the rules manuscript aside and never came back to it.”

The unfinished manuscript was left to the University of Chicago after Llewellyn’s death in 1962. William Twining had been a student of Llewellyn’s and later collected his papers for the school library. Twining, a law professor, legal historian and author of the definitive biography of Llewellyn, mentioned the unfinished book to Schauer, who asked to see the manuscript when visiting at the University of Chicago in 2005.

“That’s when, with Twining’s encouragement, it occurred to me that this was an important book and ought to be published,” Schauer said.   

Schauer has been writing about rules since his own 1991 “Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life,” and most recently covered the subject in several chapters of his 2009 “Thinking Like a Lawyer: A New Introduction to Legal Reasoning.” 

This longstanding interest prompted the interest in Llewellyn’s book on rules, which consists of eight completed chapters and brief notes describing three more that were never written. Schauer wrote an extensive introduction and numerous footnotes to shed light on Llewellyn’s goals, make connections with other work by Llewellyn and by other realists, and try to explain some of Llewellyn’s more dense prose.

“Most of the editing decisions were about how to explain what Llewellyn was trying to say while still, for historical reasons, allowing the reader see in full Llewellyn’s own particularly flamboyant, idiosyncratic and often weird and unclear language,” Schauer said.

Llewellyn was one of the most prominent of the Legal Realist thinkers of the 1930s, and believed that rules as they are written down — “paper rules,” he called them — are often less important in understanding and predicting judicial outcomes than the beliefs, professional socialization and shared practices of lawyers and judges.

The book contains valuable and novel thoughts on legal realism not found elsewhere, and is also a significant part of the work of an important figure in legal thought, Schauer said.

“Llewellyn was saying things in the book that he didn’t say anywhere else about the sociological aspect of rule-applying and rule-following, and the extent to which the culture of lawyers and culture of judges make a difference in legal decision-making,” he said.

The book expounds on Llewellyn’s belief that judges and lawyers tend to form a consensus as to which legal arguments are the right ones, Schauer said.

“I was surprised, really, at how much of a focus there was on lawyer culture and on an admiration for the informal processes by which the culture of lawyers decides which results are good and which are bad,” he said.

“We can ask skeptical questions about what that culture is, and whether it is wise for the legal system to rely so heavily on it, but Llewellyn viewed this law-making and rule-making culture with great admiration. He refers to them constantly as the ‘lawmen,’ — not in the Old West sense of the term, but meaning a culture of people who are genuine experts about what is going to work and what is not.”

Though much of the writing is eight decades old, the ideas Llewellyn discussed are still very relevant today, Schauer said.

“There’s the common claim that we are all realists now, but I think that claim is false. There appears to be  much more adherence to paper rules than many of the realists believed, even by people who claim that they don’t adhere to them,” he said. “[Editing the book] was an interesting process for me because I am more of an enthusiast for rules as they are written down than Llewellyn was. He persuaded me a little at the margins, but these things are still being debated in various different ways.”

Schauer said he hopes to next examine the relationship between legal rules and force.

“Do people follow legal rules because they think they are good ideas, because they internalize them, or because of the force of the state?” Schauer said. “Somewhat unfashionably, I’m more of an enthusiast for force and coercion than some of the jurisprudential community, and developing some of these thoughts, about which I have been writing recently, into a full book is the next big project that’s starting to form itself in my mind.”