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The Influence of Rudolf Von Jhering on Karl Llewellyn

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Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2012 The Influence of Rudolf onv Jhering on Karl Llewellyn Julie E. Grise Connecticut House Republican Office Martin Gelter Fordham University School of Law, [email protected] Robert Whitman University of Connecticut School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Law Commons Recommended Citation Julie E. Grise, Martin Gelter, and Robert Whitman, The Influence of Rudolf onv Jhering on Karl Llewellyn, 48 Tulsa L. Rev. 93 (2012) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/904 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. RUDOLF VON JHERING'S INFLUENCE ON KARL LLEWELLYN Julie E. Grise,' Martin Gelter," & Robert Whitman*** PART I. AN OVERVIEW OF THE LIFE AND WORK OF KARL LLEWELLYN....... ........ 96 A. The Early Years of Karl Llewellyn: Life, Education, and Career...............96 B. The Later Years of Karl Llewellyn: Scholarship and Philosophy ............... 98 PART 1l.....................................................................104 A. German Jurisprudence in the 19 th Century .................. ...... 104 B. The Early Years of Rudolf von Jhering: Life and Education ............... 106 C. The Later Years of Rudolf von Jhering: Scholarship and Philosophy ........... 107 PART III. THE INFLUENCE OF GERMAN JURISPRUDENCE ON AMERICAN JURISPRUDENTIAL THEORY AND THOUGHT ............... 109 A. The Foundations in America for the Reception of German Jurisprudence .... 109 B. The German Free Law Movement ....................... ...... 110 C. Reception of the Free Law Movement in the United States ................. 113 PART IV. RUDOLF VON JHERING'S INFLUENCE OF THE LIFE AND WORK OF KARL LLEWELLYN.............................................. ............. 114 A. Dismissal of German Jurisprudence ............................ 114 PART V. CONCLUSION ........................................ ..... 116 Karl Llewellyn 1 is today considered one of the most prominent representatives of * Legal Counsel with the Connecticut House Republican Office, J.D. 2009, University of Connecticut School of Law. ** Associate Professor of Law, Fordham University School of Law. *** Professor of Law, University of Connecticut School of Law. The authors wish to thank Amrita Singh and Renae Flemmings, J.D. 2010, for their editing assistance, and Professor Stephan Utz for valuable sugges- tions. 1. The breadth and scope of Karl Llewellyn's lifetime of experiences and work is remarkable in today's era of legal concentration and specialization. Llewellyn's contributions, whether in his academic, professional 93 94 TULSA LAW REVIEW Vol. 48:1 the American Legal Realist School. Although American legal realism is no longer the predominant school of jurisprudence in the United States, it still plays an important role in the formation of our legal traditions. Consider President Obama's recent statement concerning the candidate successfully nominated to the United States Supreme Court: I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily re- alities of people's lives, whether they can make a living, and care for their fami- lies, whether they feel safe in their homes, and welcome in their own nation.3 Several of Llewellyn's contemporaries in the American legal academy, including Arthur Corbin,4 Jerome Franks and Roscoe Pound 6 have been cited as influences on his or personal life, are demonstrative of a unique ability to approach situations with a new and revolutionary per- spective. Throughout his life, Llewellyn compiled an impressive and lengthy list of "singular" accomplish- ments, including but not limited to: the only American ever to have been awarded the Iron Cross; the most fer- tile and inventive legal scholar of his generation; legal theory's most colorful personality since Jeremy Bentham, the only common lawyer known to have collaborated successfully with an anthropologist on a major work; a rare example of a law-teacher poet; the chief architect of the most ambitious law code of recent times; the most romantic of legal realists and the most down-to-earth of legal theorists; the most ardently evangelical of legal skeptics; the most unmethodical of methodologists; the least controvertible of claims, the possessor of one of the most exotic prose styles in all legal literature. See ROBERT WHITMAN, SOIA MENTSCHIKOFF & KARL LLEWELLYN: A COMPILATION OF ARTICLES ABOUT Two ICONIC LAW PROFESSORS (The Graduate Group 2011); Karl Llewellyn & William Twining, Two Works of Karl Llewellyn, 30 MOD. L. REV. 514, 514-15 (1967). See also N. E. H. HULL, ROSCOE POUND AND KARL LLEWELLYN: SEARCHING FOR AN AMERICAN JURISPRUDENCE 224 (1997). As Dean of Harvard Law School, Roscoe Pound is one of the most influential figures in the American legal realism. Roscoe Pound was both Llewellyn's critic and ally. "[H]e was also the mentor of a generation ofjurisprudents, the patron of many young scholars, and the best-placed American aca- demic jurisprudent of his time." Id. 2. See David E. Ingersoll, Karl Llewellyn, American Legal Realism, and Contemporary Legal Behavior- alism, 76 ETHICS 253, 253 (1966). Jerome Frank was born in New York in 1889, and served as ajudge of the United States Court of Appeals for the Second Circuit in 1941. Llewellyn and Frank were close friends as well as prominent figures in legal realist thought. Despite their deaths (1957 and 1962 respectively), their views continue to influence many legal theories today. Id. at 253-54. In describing legal realism, Ingersoll notes that the realists performed an extremely valuable and successful "ground-breaking" task in introducing social sci- ence methodology in legal scholarship. Indeed, when one compares the assumptions and the concepts of con- temporary legal behavioralism with those of the realists, one is stuck by an amazing similarity. It appears as though the modem "radicals" of legal scholarship are very much the intellectual progeny of the old realists. Id. at 253. Legal realism is also thought of as having influenced or having the led the way for the infusion of eco- nomic analysis into contemporary legal thought. See, e.g., Kristoffel R. Grechenig & Martin Gelter, The Trans- atlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism, 31 HASTINGS COMP. & INT'L L. REV. 295, 316-19 (2008) (arguing that the widespread acceptance of realist ideas was a pre- condition for the success of economic analysis of law); Joseph William Singer, Legal Realism Now, 76 CALIF. L. REV. 465, 516 (1988) (reviewing LAURA KALMAN, LEGAL REALISM AT YALE: 1927-1960 (1986)) ("[theo- ries] associated with legal process, rights theory, and law and economics all attempt to absorb the insights of legal realism . ."). 3. Jake Tapper & Sunlen Miller, POTUS Interrupts Press Briefing to Announce Souter's Retirement, An- nounce Qualificationsfor Next Supreme, ABC NEWS (May 1, 2009, 3:45 PM). In his May I statement, Presi- dent Obama also stated: I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule, who honors our constitutional traditions, who respects the integrity of the judi- cial process and the appropriate limits of the judicial role. I will seek somebody who shares my re- spect for constitutional values on which this nation was founded and who brings a thoughtful under- standing of how to apply them in our time. Id. 4. Early Years, 1869-1916, Arthur L. Corbin, YALE LAW SCHOOL, http://www.law.yale.edu/cbl/3075.htm (last visited July 8, 2012). Even though Llewellyn referred to Corbin as "Dad" and considered him a "Realist," Corbin never formally accepted the realist label. Instead, he responded to Llewellyn: "I can join cheerfully with you and your kind of 'Realism' but I never wanted to belong to the 'Realist School' or any other School (ex- 2012 RUDOLF VON JHERING'S INFLUENCE 95 thinking. Given his significant links with the German legal academy, it is not surprising that Llewellyn's work appears also to have benefited from his acquaintance with the work of German-speaking contemporaries and predecessors. In particular, Llewellyn's debt to the work of Rudolf von Jhering7 deserves exploration. The purpose of this Article is to shed light on the influence of Rudolf von Jhering on Karl Llewellyn. Part I offers a brief overview of Llewellyn's life, education, major work, and jurisprudential philosophy. 8 Part 11offers the same overview for Jhering. 9 Part III gives a general account of the influence of German jurisprudence on American juri s- prudential theory and thought. 10 Finally, Part IV surveys the recognized influence from German jurisprudence on Llewellyn's work and examines Jhering's influence in partic u- lar, with an emphasis on how Jhering may have affected Llewellyn's work on the Uni- form Commercial Code.11 cept, perhaps, the Yale Law School)." Id. It is worth noting that Corbin supported Llewellyn's scholarship as evidenced in his statement to Llewellyn, "your book will be welcomed by the judges and will sharpen their mind as to their own style and method." HULL, supra note 1, at 337. See also Friedrich Kessler, Arthur Linton Corbin, 78 YALE L.J. 517, 521 (1969) (describing how Arthur Corbin suggested that "the courts [should] return to and cultivate what Karl Llewellyn called the Grand Style of decision making and abandon the Formal Style, with its rigid and narrow adherence to formal logic."). 5. See Ingersoll, supra note 2, at 254. 6. Nathan Roscoe Pound was born in Lincoln, Nebraska in 1870. HULL, supra note 1, at 20.
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