Jurisprudence and Dennis Patterson and Stephen Feldman and Introduction and legal theory and history of law and Langdell and American legal realism

The purpose of these mini-essays is twofold: first, to lay out some of the issues that I think are important from the reading assigned for the day and second, to pose some questions that will help focus our class discussion. Each assignment on the Syllabus is keyed to a mini-essay so that you can easily follow the issues as they are brought up. Thus, the goal of these pages is not to write a connected series of essays that summarize the course but rather to highlight what I think are important issues and suggest some ways that you might consider thinking about them. This course is more of a "thought" course, a course to stimulate your own integrative thinking about the nature of law and how that relates to what you have been doing at law school over the last two or three years.

So, let's start with a definition. From Webster's Third New International Dictionary (Unabridged, 1993), comes this definition of jurisprudence. "(1) archaic: knowledge of or skill in law (2)a: a system or body of law: a department of law <an exponent of sociological jurisprudence> <Roman jurisprudence>--compare ANALYTICAL JURISPRUDENCE, FORENSIC MEDICINE b: the science or philosophy of law <devoted himself to the study of jurisprudence> c (1): the course of court decisions as distinguished from legislation and doctrine <a tendency that has become apparent in the jurisprudence of the American courts--Bernard Schwartz> (2) the collected decisions of a court."

The derivation of the term from the Latin is illuminating. It is juris prudentia. Juris is in the genitive case (the possessive; nominative is "jus" or "ius") so a good translation of the phrase is "the prudence of the law" or "the wisdom of the law." I rather like that latter phrase. Something about our task will bring us to the "wisdom" of the law. Never forget that goal. Our aim, therefore, is not simply to master what certain thinkers have said about law but to see if there is such a thing as wisdom or reflective insight that emerges from our study.

Questions/Exercises: 1. Give examples of each kind of usage from the above definition in your experience in law; 2. How does Patterson use the term? Feldman? With what term does Feldman say it is equivalent for him? What are the benefits/disadvantages of having a term that has such flexibility of meaning? In the last week I have talked to two friends about what I am teaching this fall. I told them, "Jurisprudence." Each said, "What is that?" One was a lawyer. Does that tell us anything (please don't say it means I have dumb friends!)?

II. Dennis Patterson, "What is at Stake in Jurisprudence?" Professor Patterson, born in 1955, teaches in New Jersey and is trained as a philosopher. He has devoted a lot of attention to trying to understand one of the leading 20th century philosophers: Ludwig Wittgenstein. This article, which rambles from topic to topic in a rather haphazard way (see my mini-essay describing my own educational theory--not yet written), is nevertheless a helpful introduction for us. I think you should note the following: his definition of jurisprudence, the two movements in American jurisprudence he briefly describes [Formalism and American Legal Realism--note, compare his comments on Langdell to mine in Billphorism # 12 and my summary of Langdell's Contracts casebook under "BillsArticles"--accessed from my home page and then number 7 of my legal articles], the three major influences in taking us from modernism to postmoderism (Kuhn, Quine and Wittgenstein), his concentric circles and his reason for using the illustration from Karl Llewellyn.

III. Stephen Feldman, "Introduction" in American Legal Thought. In the Introduction Professor Feldman lays out his overarching categories of pre-modernism, modernism and post-modernism, explains his understanding of American legal thought and gives his approach to the book. I think you should notice his broad view of jurisprudence (p. 4), his attempt to place the study of law in the context of other intellectual movements in American culture and his focus on what he calls the "mandarins" of American law. What years does each of the three movements include? What does he mean that he focuses on legal mandarins? What are the advantages/disadvantages of that approach? By placing legal development in the context of American intellectual history, he is going against the grain in much legal scholarship, which has tried to place law in a category of its own, removed from the currents of broader theoretical thought. Would you agree with what he is trying to do or not? He chooses to spend as much time discussing modernism as post-modernism. What is his justification for that?

I think that even though both Patterson and Feldman would focus on many of the same themes, Feldman is more of a historical thinker and Patterson more of a philosophical mind. I think both are helpful, and even essential, in understanding the development of American law.

Though I want you to focus on Patterson and Feldman for the first day of class, I also will spend a lot of time going over the syllabus and showing that it will take us five or six weeks even to get to the American experience. That is, though both Patterson and Feldman speak about jurisprudence in the context of American law, we will only reach American law after several of the major figures and movements in jurisprudence have been introduced. Therefore, look at this course as getting to know some significant people and ideas in the history of jurisprudence. I look forward to joining you in the joint journey of discovery.