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John Chipman Gray and the Moral Basis of Classical Legal Thought Stephen A

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John Chipman Gray and the Moral Basis of Classical Legal Thought Stephen A DePaul University From the SelectedWorks of Stephen Siegel August, 2001 John Chipman Gray and the Moral Basis of Classical Legal Thought Stephen A. Siegel, DePaul University Available at: https://works.bepress.com/stephen-siegel/32/ +(,121/,1( Citation: Stephen A. Siegel, John Chipman Gray and the Moral Basis of Classical Legal Thought, 86 Iowa L. Rev. 1513 (2001) Provided by: Rinn Law Library Content downloaded/printed from HeinOnline Tue May 14 09:09:01 2019 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device John Chipman Gray and the Moral Basis of Classical Legal Thought Stephien A. Sieget I. INTRODUCT ON ...................................................................................1514 I. CLASSICAL LEGAL THOUGHT AND LANGDELL'S ORTHODOXY ............1518 A. CLASSiCAL LEGAL THOUGHT .........................................................1519 B. CHRRSTOP-ER COLUMBULAAGDEL .............................................1523 III. JOHN CHIPMAN GRAY ..........................................................................1527 A. A BRmE BIOGRAPHY .....................................................................1527 B. JOHN CummAV GRA: A CLASSICAL LEGAL SCHOL4R .....................1529 C. GRAY'S ORTHODOXYASDEELOPED INHISJURSPRUDFv\LaL WRT GAD TEAC-NG ...............................................................1532 D. GRAY'S ORTHODOXYASILLUSTRAMTED INHSDOcTPAL 11WRixG AAD T C GN .............................................................................1547 1. Gray's Restraints on Alienation............................................... 1548 2. Gray's The Rule Against Perpetuities....................................... 1555 E. JOHN CfIPIII GRAY CLASSICAL LEGAL SCHOLAR-R .NVO!.......... 1570 IV. ACCOUNTING FORJOHN CHIPMAN GRAY'S ORTHODOXY ....................1576 A. GRAY'SREUGIOU sANDETHICAL SKPTICSM ..................................1577 B. GRAY'S "OLD CONRVATIE" CO TS ...................................1581 C. GRAY'SNASCLvTPRAGMATiSM ......................................................1583 V. WAS GRAYS VIEW OF THE MORAL BASIS OF CLASSICAL LEGAL THOUGHT SHARED BY HIS HARVARD COLLEAGUES? ...........................1590 VI. CONCLUSION ......................................................................................1596 ' I thank Gregory Alexander, Barry Cushman, Thomas Grey, Brce Kimball, Sand) Levinson, and Mark Weber for insightful commentary on prior drafts of this Atvicle. I also profited from discussions of this paper at workshops at Cornell, DePaul, and Vanderbilt Law Schools, as well as from a panel presentation at the American Society for Legal History. The staff at the Han ard Law School library Special Collections was extraordinarily helpful during my visit to their facility.a visit for which I especially thank my Dean Teree Foster. Research for this paper vas funded by the DePaul University College of Law's Summer Research Grant program. 1513 1514 86 IOWA LAWREVIEW [20011 I. INTRODUCTION Between the 1870s and the 1930s, American law was dominated by a jurisprudential style variously described as "mechanical jurisprudence," "legal formalism," and "classical legal thought."' Though classical orthodoxy has been analyzed from a multiplicity of perspectives, 2 our understanding of it remains fundamentally flawed. The root of the problem is an unfortunate tendency to focus analyses of classicism on the writings of the Harvard Law School faculty and, in particular, its Dean, Christopher Columbus Langdell? The focus on the Harvard Law School may seem justified. Harvard housed the most prestigious law faculty of the era. Its professors produced many of the most celebrated artifacts of classical legal culture: magisterial treatises on discrete legal topics, 4 austere casebooks for instruction through Socratic dialogue, 5 and various restatements of the law for the American Law Institute.6 Nevertheless, agreement among judges, lawyers, and scholars about matters of analytic technique masked substantial disagreement about that technique's fundamental tenets and extra-legal justification.7 The 1. I will use the term "classical legal thought" to describe this jurisprudential style. Classical legal thought, and my reasons for choosing this name, are discussed infra text accompanying notes 26-62. 2. See, e.g., material cited infra note 40 (listing writings on classical orthodoxy). 3. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 48-56 (1930) (discussing Joseph Beale, who is considered one of Langdell's most prominent acolytes); LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 611-19 (1973); Thomas Grey, Langdells Orthodoxy, 45 U. PITT. L. REV. 1 (1983) [hereinafter Grey, Orthodoxy]. 4. See, e.g., 1-3 JOSEPH BEALE, A TREATISE ON THE CONFLICT OF LAWS (1935); JOHN CHIPMAN GRAY, THE RULE AGAINST PERPETUITIES (Boston, Little, Brown & Co. 1886) [hereinafter GRAY, RULE]; JOHN CHiPa AN GRAY, THE RULE AGAINST PERPETUITIES (1906) [hereinafter GRAY, RULE (2d ed.)]; JOHN CHIPMAN GRAY, THE RULE AGAINST PERPETUITIES (1915) [hereinafter GRAY, RULE (3d ed.)]; JOHN CHIPMAN GRAY, TIlE RULE AGAINST PERPETUITIES (1942) [hereinafter GRAY, RULE (4th ed.)]; 1-5 SAMUEL WILLISTON, TilE LAW OF CONTRACTS (1920-1922) [hereinafter WILLISTON, CONTRACTS]; see aloA.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. CIi. L. REV. 632, 670-74 (1981) (discussing treatises as an expression of classical orthodoxy). 5. See, e.g., JAMES AMES, SELECT CASES ON TORTS (1874) [hereinafter AMES, TORTS]; 1-6 JOHN CHIPMAN GRAY, SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY (1888- 1992) [hereinafter GRAY, PROPERTY]; CHRISTOPHER LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (2d ed. 1879) [hereinafter LANGDELL, SELECTION OF CASES]; see also WILLIAM LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 24 (1994) [hereinafter LAPIANA, LOGIC] (discussing casebook instnction as an aspect of classical orthodoxy). I describe the casebooks as austere because they tended to present cases without any notes or commentary. 6. Samuel Williston andJoseph Beale were the reporters, respectively, for the Restatenwnt of Contractsand Restatement of Conflict of Laws. See GRANT GILMORE, THE AGES OF AMERICAN LAW 72-74 (1977) [hereinafter GILMORE, AGES] (discussing the Restatements as examples of classical orthodoxy); GRANT GILMORE, THE DEATH OF CONTRACT 59-76 (1974) [hereinafter GILMORE, DEATH] (discussing the Restatement (First) of Contracts). 7. See Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 L. & HIST. REV. 215, 251 (1995) [hereinafter Siegel, Bishop] (discussing differences among classical scholars); see also Stephen A. JOHN CULPMAN GRAY 1515 Harvard faculty formulated a distinctly secular understanding of classical orthodoxy. In contrast, many judges, lawyers, and scholars outside Harvard formulated, practiced, and understood classical legal science as a theistically informed jurisprudence. Given the slow pace at which American culture secularized in the late nineteenth and early-twentieth centuries," classical legal thought never would have come to dominate American law in the Gilded Age and Progressive Era had Harvard's secular version been its sole expression. Modem scholars' focus on the writings of Christopher Columbus Langdell may seem justified.9 Langdell was the law school's leader. He brought Harvard President Charles Eliot's insistence on secular, scientific explanations and methods to the Law School.' He reformed the school's curriculum and pedagogy." He hired faculty who generally shared his 2 academic andjurisprudential vision. Yet, this article argues that the focus on Langdell can impede full understanding even of Harvard's secular strand of classical orthodoxy. Langdell was a typical and influential classical legal scholar in many ways. However, in other fundamental ways he was atypical and uninfluential. Among the atypical aspects of Langdell's orthodoxy was his approach to the role of morals and public policy 3 in legal science. 4 Langdell divorced law Siegel, The Three Tenors of Classical Legal Thought 1-7 (2001) [hereinafter Siegel, Three Tenors] (manuscript on file with author). 8. See Linda Przyb)szeiski, What the Separation of Church and State Misses: Justice Brewer and the Bible 4 (2000) [hereinafter Przybyszewski, Brewver] (manuscript on file with author) (discussing slow pace of secularization). 9. Langdell studies are practically a cottage industry. Sre, e.g., Paul Carrington, Hai! Langdelll, 20 LiW & SOC. INQUIRY 691 (1995); Grey, Orthedo.,, smpra note 3; Bruce Kimball, "WarnStudents that IEntertainHeretical Opinions, liddi The) Are Not to Tale as Law' 7te Inception of Case Method Teadhing in the Classrooms of the Early C.C Langdl, 1870-1833, 17 L & HIST. REV. 57 (1999); Marcia Speziale, LangddMs Concept of Law as Sffairn, 5 Yr. L REv. 1 (1980) [hereinafter Speziale, Concept ofLaw]; see also extended discussions of Langdell in books, such as FRIEDMAN, supra note 3, at 532-36; ROBERT STEVENS, LW SCiHOOL LEG.%L EDc.n O.'t Ar-acER sAuOu THE 1850STO THE 1980s, 35-72 (1983). A search of the WestlawJLR database on April 6, 2000 for articles %ith"Langdeil" in their titlewritten
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