Vol. 8 No. 4 (April 1998) pp. 144-146

ROSCOE POUND AND KARL LLEWELLYN: SEARCHING FOR AN AMERICAN JURISPRUDENCE, by N. E. H. Hull. Chicago: The University of Chicago Press, 1997. 366 pp. Cloth $34.95. ISBN 0-226-36043-1.

Reviewed by Wayne D. Moore, Fulbright Fellow, Faculty of Law, Osaka University, Japan; on leave from Department of Political Science, Virginia Polytechnic Institute and State University.

In this book, N. E. H. Hull offers a distinctive account of the development of sociological jurisprudence and legal realism in the United States during the first half of the twentieth century. Combining elements of intellectual biography, social history, and analytic jurisprudence, the book's central claim is that Roscoe Pound's and Karl Llewellyn's major contributions to American jurisprudence were fundamentally similar and largely congruent. Hull claims that each acted as a "bricoleur," piecing together fragments of existing theories to innovate a new, pragmatic approach to legal thought. She suggests, moreover, that these two scholars, through their searches if not their fruits, exemplified a uniquely American jurisprudential approach.

Hull's methodology involves reinterpretation of Pound's and Llewellyn's published works with reference to their private correspondence, institutional associations, and other aspects of "the intimate, human context in which academic jurisprudence is conceived and given voice." Although she concedes that "[p]ublic exchanges sever themselves from private communications and take on a life of their own," as an historian she seeks to "recover past meanings" and to "decode" or "fully define" the public discourse.

Legal theorists might be put off by Hull's early injunction to "[f]orget theory." Her analysis is, however, highly theoretical in several senses. She adeptly summarizes and insightfully critiques arguments by Pound, Llewellyn, and others who classified and characterized legal norms and practices. In addition, Hull's methodology depends on--and seeks to defend--independent claims about how best to describe, evaluate, and influence intellectual discourse, pedagogy, and legal practices in the United States. She eventually comes close to conceding a related issue by endorsing Lon Fuller's characterization of Llewellyn as a philosopher of sorts despite his professed antagonism toward philosophizing. Her aspiration, following Llewellyn, to "See it fresh," "See it whole," "See it as it works," quintessentially involves "theorizing."

The focal point of the book is chapter 4, on the famous debates between Pound and Llewellyn from 1930 to 1931. Earlier chapters set the stage, later ones seek to disentangle the resulting antagonisms. The combined portraits of Pound and Llewellyn are both fascinating and compelling.

The first two chapters chronicle Pound's rise to preeminence as dean of Harvard Law School and "foremost American academic jurisprudent of his day." These chapters emphasize the wide range of influences on Pound's thinking and the importance of networks--especially institutional affiliations--to the development of his thinking. Hull claims that Pound acted as a "bricoleur" in drawing on these various influences to fashion a progressive-pragmatic jurisprudence in opposition to the rigid dogmas of formalist thinking.

Chapter 3 traces connections between Pound and his intellectual proteges, among whom Hull includes both Wesley Newcomb Hohfeld and one of his students, Karl Llewellyn. Hull maintains that Llewellyn's early conceptions of legal realism closely overlapped Pound's accounts of the central tenets of sociological jurisprudence. At the same time, she claims that divergences between Pound's private commitments and his public views--especially his refusal to champion publicly the cause of Nicola Sacco and Bartolomeo Vanzetti--isolated him from "his jurisprudential heirs," because "liberal viewpoint was one index of the reformist jurisprudence." Hull unearths evidence that Pound privately criticized the conviction of Sacco and Vanzetti but was unwilling to take a strong public stand at the risk of alienating the legal establishment, losing his deanship, and jeopardizing his jurisprudential agenda. Llewellyn, in contrast, "charged into the crusade for the condemned radicals regardless of the consequences."

Chapter 4 seeks to recharacterize the subsequent "squabble" between Llewellyn and Pound. She attributes much of the charged rhetoric to missed communications, misunderstandings, public retreats from private insights, and the distorting intrusion of Jerome Frank into "conversations" that otherwise might have remained "amicable." The public rhetoric pitted Llewellyn and Pound against one another, but Hull claims that "[i]f there was any feud among the principals of the controversy, it was between Pound and Frank, not between Pound and Llewellyn." Hull suggests, moreover, that the public exchanges do not reflect these two scholars' greatest insights into the character of legal realism or their aspirations for American jurisprudence more generally. The chapter closes with quotes from Llewellyn's poems. Hull claims that they "expressed Llewellyn's vision of law more candidly and movingly" than his law review essays.

The remaining chapters trace the fall-out from this exchange. Hull suggests that Pound's public criticisms were constructive insofar as they provoked Llewellyn to "practice what he preached." But she also claims that the dean's criticisms and his continuing failure to grasp affinities between legal realism and his own pragmatic commitments were harmful insofar as they "called down on Llewellyn criticism from those who ought to have been his allies as well as from those who might have been more circumspect in their public remarks had Pound smiled on realism in print." Exacerbating the problem, Pound retreated toward conservatism and thereby became isolated from "his liberal academic constituency." Meanwhile, "Llewellyn's realism grew in a different direction," as documented by his approach to studying the Cheyenne criminal justice system and his role in drafting the Uniform Commercial Code. Even so, Hull claims that throughout his career, "Llewellyn needed to play off Pound, needed Pound as a brilliant son needs to rebel against an august and distant intellectual father." She also suggests that Pound, even in his last years, continued to look upon Llewellyn as his intellectual son. Again emulating Llewellyn, Hull's book has a deeply romantic theme.

Much of the richness of Hull's account is in its details. The book is not an easy read, but the effort is worthwhile. Pound and Llewellyn appear in different lights from earlier biographies, and the book contributes substantially to understanding sociological jurisprudence and legal realism as distinctively American approaches to the study, teaching, and practice of law.

Not all will be comfortable with or willing to endorse Hull's methodological assumptions, her analytic posture, or her primary thesis. It is not at all clear, for example, that ideas communicated privately are more reliable, genuine, or "true" expressions of deep commitments than are public statements. Strategic considerations enter into (and distort) the former as well as (if not more than) the latter. Similarly, it is problematic to characterize as lasting legacies positions considered in private but abandoned (or not endorsed) publicly. Considering the range of views expressed publicly and privately by Pound and Llewellyn, the reader's normative commitments unavoidably shape the selection and characterization of these two men's approaches to law in the United States. Hull admirably extracts progressive and pragmatic cords from their communications. But it remains open to debate whether these cords are dominant, central, or sufficiently complementary to sustain Hull's conclusions that Pound and Llewellyn "were searching for the same grail, and that their search [or searches] had taken them in roughly the same direction."

Perhaps in evaluating Hull's work a pragmatic perspective is most fitting, since she repeatedly offers such a perspective to her readers. In my case, reading the book led in several directions. First, it stimulated me to read other accounts of Pound's and Llewellyn's lives, including analyses of their contributions to American jurisprudence. Second, the book revived my interest in further study of sociological jurisprudence and legal realism. Third, the book made me aware of the importance of reading or rereading Pound's and Llewellyn's contributions to public discourse. While aspiring to place that discourse in context, the book frames rather than supplants the primary sources. Finally, the book provoked me to rethink the extent to which progressive and pragmatic dimensions are dominant or characteristic features of legal discourse in America. On all four fronts, I found the book a welcome addition to the literature on law and politics.
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