The jurisprudence of concepts: classical orthodoxy and the non-balancing past

1. Introduction

At its origins, in both Europe and the US, the jurisprudence of the bal­ancing of interests was a jurisprudence of critique and replacement. Heck, Pound and others explicitly formulated their jurisprudence of interests by way of opposition with an allegedly theretofore dominant and fun­damentally flawed alternative model: the ‘jurisprudence of concepts', or ‘Begriffsjurisprudenz’.

This earlier mode of jurisprudential discourse has been analysed before and in great depth, both for the US and for Europe, especially Germany.^[101] These studies commonly emphasize how difficult it is to capture the pre­vailing legal consciousness of a period of more than a century ago. Late- nineteenth-century American legal thought, Robert Gordon notes, ‘has proved maddeningly elusive to historians' attempts to chase it down, especially since we are used to seeing it through the eyes of Progressive critics inclined to hostile caricature'.^[102] The same is true in Europe, where the derisory term Begriffsjurisprudenz and the tradition of caricature ori­ginate with von Jhering himself.^[103] With this rich and complex background in mind, the exploration of the jurisprudence of concepts in this section is circumscribed in three ways.

First, it is an investigation specifically of what could be called ‘the balan­cer's account' of classical orthodoxy. This is precisely the anti-image Heck, Pound and their contemporaries had in mind when developing their alter­native visions. That image is important as it formed part of the meaning of balancing at its inception, in a negative sense, as a reminder of all that the new methods should seek to avoid. Especially in the case of the US, it is also an image that remains relevant to this day, as ‘the thesis to which modern American legal thought has been the antithesis'.^[104] One argument I make in this chapter and in Chapter 5, is that this ‘pendulum swing' narrative of thesis-antithesis which is pervasive in American legal thinking,^[105] does not adequately capture the nature of the continued relevance of classical legal thought, neither in Europe nor in the US, although for very different reasons.

Second, one aspect of this received account of classical orthodoxy that deserves special attention is its association with the conceptual vocabu­lary of legal formality and its opposites. In particular since Max Weber took the German Pandectists as the source and illustration for his ideal type of formal rationality in law, the legal worldview ascribed to mid- and late-nineteenth-century lawyers and the terminology of legal formality and formalism have been inseparably linked.^[106] Of course, as Weber's own account makes abundantly clear, it is far from easy to identify the precise ways in which classical legal thought can be said to have been formal or formalist.^[107] But since the vocabulary of legal formality and its opposites has become the dominant framework for the description and analysis of balancing specifically,^[108] these ambiguities also directly affect our ability to make sense of that language. Understanding how and why these early critics thought classical orthodoxy was formal - and what they thought was wrong about this formality - is, therefore, an important step towards understanding the meanings of balancing.

And third, for both these topics - of the balancer's view of classical orthodoxy generally, and of the association with legal formality specif­ically - this account is particularly interested in the question of local differences. Here, two further questions are relevant. First: is there any­thing that distinguishes European critiques of the work of Puchta and Windscheid from American attacks on Langdellian legal science, despite all their undeniable similarities? And second: does it matter that classical orthodoxy in the US has come to be seen as encompassing more than just these rather narrow scholarly and educational projects, and also includes its perceived impact on the practice of constitutional adjudication?

In what follows, I argue ‘yes' in response to both these questions. Although the European and the American critics were undoubtedly part of the same broad movement responding to nineteenth-century sensibilities, they had different preoccupations.

2. ‘Scientific law' and legal formality

First, though, the basic contours of the received, shared, image of classical orthodoxy and of its association to legal formality require some further exposition.

In both settings, the traditional view of classical orthodoxy is that of a closed, gapless, system within which it was possible, in every concrete case, ‘to derive the decision from abstract legal propositions by means of legal logic'.^[109] Its adherents gave this ideal the label of ‘scientific law'.^[110] Several dynamics came together to promote its ascendancy.^[111] Germany, France and the US all faced somewhat similar institutional demands related to the advent of systematic academic legal instruction.^[112] Shared too, was a strong desire on the part of legal scholars for their field to be seen as on a par with other academic disciplines.^[113] But probably the dom­inant impetus in all three settings was the ideal of lawyers and judges as a political actors.^[114] The upheavals of industrialization and urbanization ensured that the second half of the nineteenth century was a period of extraordinary rapid change in Europe and in America.^[115] It was in these unsettled times that expectations arose in the US that law could perhaps ‘provide a non-political cushion or buffer between state and society',^[116] and in Germany, that the creation of a ‘strictly juristic method' could mediate ‘the tension between reactionism and liberalism' after the 1848 Revolutions in Europe.^[117] Both in Europe and in the US, the elaboration of a ‘scientific' legal sphere that would be separate from politics thus became a principal preoccupation of legal scholars.

Legal thinkers sought ‘an autonomous legal culture', ‘a system of legal thought free from politics',^[118] the idea being that if little else could be agreed upon, law at least could provide an objective, apolitical, neutral - in short: scientific - way of solving conflicts.^[119] Law had to be ‘a sophisti­cated scheme for the coordination of increasingly complex private affairs' that would obviate the need to get ‘involved in the political battles of its time'.^[120]

Standard depictions of the ideal character of ‘scientific law' in Europe and the US, then, do indeed show striking similarities. In particular, they commonly invoke the same more abstract vocabulary to gener­alize earlier beliefs and habits. This vocabulary is the language of legal formality. On both counts, these similarities owe much to the transat­lantic influence of early German analyses. For the general depiction of conceptual jurisprudence this is true notably of the work of Rudolph von Jhering.^[121] For the terminology of legal formality specifically, it is the work of Max Weber that has become the standard template.^[122] Weber's famous, if enigmatic, ideal-typical categories of formal and substantive rationality and irrationality in law appear in Chapter 8 of Economy and Society. This general catalogue is followed immediately by an elaboration of the ‘formal qualities' of ‘present day' German legal science.²⁸ Its formality, Weber argued, stemmed from its adherence to five postulates:

first, that every concrete legal decision be the ‘application' of an abstract legal proposition to a concrete ‘fact situation'; second, that it must be possible in every concrete case to derive the decision from abstract legal propositions by means of legal logic; third, that the law must actually or virtually constitute a ‘gapless' system of legal propositions, or must, at least, be treated as if it were such a gapless system; fourth, that whatever cannot be ‘construed' legally in rational terms is also legally irrelevant; and fifth, that every social action of human beings must always be visual­ized as either an ‘application' or ‘execution' of legal propositions, or as an ‘infringement' thereof.²⁹

Weber's language quickly became the standard frame of reference for describing the ideas animating the jurisprudence of concepts.

either Pound (1908), Pound (1910) or Pound (1911) (there are just passing references to a ‘desire for formal perfection', in Pound (1910), at p. 23, and in Pound (1911a), at p. 596). For a historical overview see also Morris (1958).

²⁸ Weber (1925), p. 64.

²⁹ Ibid.

³⁰ Heck (1932a), p. 91. In the US, Realists such as Karl Llewellyn and Walter Wheeler Cook regularly noted their reliance on Weber's sociology.

³¹ Grey (1983), p. 11. For Grey's indebtedness to Weber, see p. 6.

³² Wieacker (1995), pp. 342-44. See also Stolleis (1992), p. 331.

3. Conceptual jurisprudence in Germany: Heck's Begriffsjurisprudenz

What, then, was the precise nature of the critique of conceptualism that Philipp Heck and other German authors invoked as the background to their proposals for a jurisprudence of interests? To begin with, Heck did not actually invent the term ‘Begriffsjurisprudenz’.^[123] And other European writers had criticized the ‘obsession of abstract concepts’ and ignorance of the ‘requirements of practical life’ before: most famously, Francois Geny in his Methode d'Interpretation of 1899.^[124] But, at least in Germany, Heck did more than probably anyone else to expound and popularize these ideas.^[125] In particular, he coined the influential term ‘Inversion ’ to capture what he saw as the heart of the error of conceptual jurisprudence.^[126] In his 1909 article ‘What Is This Conceptual Jurisprudence Which We Fight Against?’ Heck described as ‘Inversionsverfahren’, ‘that tendency in jur­isprudence, which treats general juristic principles as the foundation of those legal propositions of which they themselves are in fact a distilla- tion’.^[127] In later work, Heck summarized his critique as follows:

The older school, the Jurisprudence of Concepts, confined the judge to a function of subsuming facts under legal concepts.

The ‘orthodox school’, Heck wrote, upheld the theory of the ‘dogma of cognition’, which confined judges to a purely cognitive - that is to say, not evaluative - role.^[129] Echoing Roscoe Pound, Heck noted that the judge was ‘regarded as an automaton [.] not concerned with the ques­tion whether his decision was just from the point of view of its effects on human affairs’.^[130]

(a) A scholarly, private law critique

It is important to note that in criticizing conceptual jurisprudence, Heck and his fellow Interessenjurisprudenz writers were primarily targeting a jurisprudential school. They decried a scholarly tendency to promote a particular vision of legal reasoning and adjudication, rather than the form and content of actual judicial decisions. This can easily be observed from the overwhelming predominance of scholarly - rather than case law - examples in the Interessenjurisprudenz scholars' work.^[131]

Even more narrowly, the Begriffsjurisprudenz was seen by its critics primarily as a private law phenomenon, associated with the Pandectist scholarship of Georg Friedrich Puchta, Rudolph von Jhering (until his famous conversion) and Bernhard Windscheid.^[132] To be sure, Heck does note by the early 1930s that ‘[a]t present it is the sphere of public law in which the old controversy [over conceptual jurisprudence] is discussed most heatedly'.^[133] And public law did have its influential proponents of conceptual jurisprudence in Carl Friedrich von Gerber and Paul Laband, who, it should be said, first made their mark in private law and legal history respectively.^[134] But notwithstanding Heck's passing references to the relevance of the public law context, his focus, and that of other Interessenjurisprudenz writers like Max Rumelin, Heinrich Stoll and Rudolf Muller-Erzbach is very firmly on conceptual jurisprudence in the field of private law.^[135] Taking these first two points together, the typical target for dismissal as Begriffsjurisprudenz appears as an academic, dog­matic exposition of a technical private law problem.^[136]

(b) System, subsumption, idealism

When looking at the content of Begriffsjurisprudenz beliefs as envis­aged by its critics, and especially through the lens of a comparison with American understandings of classical orthodoxy, the German critics emerge as principally concerned with the elements of system, subsumption and an idealist conceptualism. The emphasis on the idea of systematicity in law is evident from the way in which the clash between the concep­tual jurisprudes' ‘dogma of the gaplessness of the legal order' on the one hand,^[137] and the critics' insistent focus on the problem of legislative gaps, ‘Gesetzeslucken, and judicial systematic gap-filling, ‘Luckenerganzung aus dem System', on the other became a central site of controversy. ^[138] The role of subsumption, or syllogistic reasoning, is clear from the contrast between the conceptual jurisprudes' faith in the power of deductive logic,^[139] and the Interessenjurisprudenz scholars' relentless framing of their critique in terms of a logical error of reasoning. Heck, to be sure, blames the con­ceptualists for doing something he thought was wrong (they ignored ‘the requirements of practical life').^[140] But his critique assumes special vigour when he accuses his opponents of trying something he presents as logically impossible.^[141] This somewhat haughty focus on faulty logic fits well with the nature of the critique as directed primarily at fellow legal academ­ics, rather than judges and practitioners. It also coheres with the impor­tance of system-thinking just alluded to. Finally, the label of an idealist conceptualism is meant to evoke the extent to which the positions of the Begriffsjurisprudenz were philosophically grounded in broader German intellectual currents.^[142] Conceptual jurisprudence had its foundations in the Historical School in German legal thought, of which the main figures were von Savigny and Puchta himself. Von Savigny's work advocated a philosophical and logical treatment of law as a ‘system', drawing on Kant's formalist epistemology.^[143] Puchta elaborated his ‘genealogy of concepts', to a large extent the foundation of conceptual jurisprudence in Germany, under the influence of Hegel's theory of history.^[144]

4. Conceptual jurisprudence in the US: responding to Langdell and Lochner

In formulating his critique of the jurisprudence of conceptions - or ‘mechanical jurisprudence', as he came to call it - Roscoe Pound drew upon the work of European writers, notably Geny and Raymond Saleilles in France and von Jhering and a host of later authors in Germany.^[145] An important question, raised but not answered in the literature, is the extent to which Pound and other American critics ‘distorted' the French and German critiques, and, more broadly, whether the attack on conceptual­ism had the same meaning in the American context as it had in Germany and France.^[146] Answering that question requires a closer look at these crit­ics' image of conceptual jurisprudence in American law.

In that regard, it is important to repeat an observation made earl­ier: legal formalism in late-nineteenth-century America, in its received understanding, consisted of an amalgam of two components. On the one hand, there was the Langdellian legal science in the university law schools. But in addition, Pound and others specifically attacked a form of consti­tutional law practice: what they saw as a laissez-faire constitutionalism in the courts.^[147] And while this first element was, in very broad terms, simi­lar to scholarly tendencies in German jurisprudence, it is in particular, though not exclusively, with regard to the laissez-faire component that significant differences as between Europe and the US begin to appear.

(a) Langdellian legal science and legal education Langdellian legal science refers to a professional and educational project epitomized in the propagation of the case method at Harvard Law School. Dean Langdell's methodological proposals were based on the idea that the study of law could be rendered more ‘scientific', and therefore appropriate to a law school embedded in a university, if it were approached through the identification, classification and arrangement of a limited number of overarching basic principles.^[148] Thomas Grey's influential 1980s account summarizes the enterprise as follows:

[T]he heart of classical theory was its aspiration that the legal system be made complete through universal formality, and universally formal through conceptual order. A few basic top-level categories and principles formed a conceptually ordered system above a large number of bottom­level rules. 'The rules themselves were, ideally, the holdings of established precedents, which upon analysis could be seen to be derivable from the principles. When a new case arose to which no existing rule applied, it could be categorized and the correct rule for it could be inferred by use of the general concepts and principles [...].^[149]

Even this short description makes clear the great extent to which Pandectist scholarship and Langdellian legal science overlapped in the eyes of their critics, notwithstanding the vast differences in legal source materials in the two legal systems concerned.^[150] Appraising Langdell’s work and its influence is difficult. On the one hand, Langdell could be seen as one indi­vidual law professor, promoting a pet vision of legal education, in some­what polemical language. At the same time, though, Langdell clearly was not simply just another law professor. He was, from 1870 to 1895, Dean of the nation’s premier law school; the country’s foremost expert on the most commercially significant area of law (contract); and a writer who, through his own work and that of a number of prominent acolytes, ‘had an enor­mous influence upon the whole atmosphere and temper of American edu­cation, not merely legal education’.^[151]

What is clear is that Langdell’s educational project has come to be read as only the most prominent manifestation of a more general tendency - of a scholarly ‘reorganization of legal architecture’ intended to ‘erect an abstract set of legal categories that would subordinate par­ticular legal relationships to a general system of classification’.^[152] What is also clear is that Langdell’s polemical language - he famously described ‘the purposes of substantial justice’ as ‘irrelevant’ - provided an irre­sistible target for critique and ridicule by writers like Holmes, Pound, Frankfurter and Llewellyn, who otherwise often found much to admire in the substance of his work.^[153] But while Holmes would still write in 1879 that regardless of such scholarly tendencies to abstraction, the law was generally administered ‘by able and experienced men, who know too much to sacrifice good sense to the syllogism',^[154] it is Roscoe Pound's much less charitable view, voiced thirty years later, that has since domi­nated received wisdom.

(b) Pound's ‘mechanical jurisprudence'

Formalism in American law at the turn of the nineteenth century has come to be seen as encompassing more than just this scientification of legal education and scholarship, and it is here, in part, that major dif­ferences with German developments originate. In a highly creative and extremely influential intellectual move, Roscoe Pound, building on the views of Supreme Court Justice Oliver Wendell Holmes, aligned the legal doctrinal critique of the formalism of classical orthodoxy along the lines of Langdell's legal science, with a substantive, political or ideological cri­tique of the content of court decisions in constitutional law.^[155] This align­ment was not obvious, and it did not come about at once. But it resulted in a new understanding of the relation between legal doctrine and political ideology that has influenced American law ever since.

Pound's critique of the uses of classical orthodoxy in the courts started out in terms broadly similar to those of his German and French counter­parts. In a 1905 Columbia Law Review article, for example, he complained that formerly flexible equitable principles were ‘becoming hard and fast and legal' and that the common law, as a result, was in danger of losing its ‘quality of elasticity'.^[156] Pound's examples may have been predominantly court decisions rather than scholarly writings,^[157] but they did concern the same private law problems that preoccupied his European colleagues. Later that same year, however, Pound's critique took on a new focus. ‘It cannot be denied that there is a growing popular dissatisfaction with our legal system', he wrote, adding: ‘[t]here is a feeling that it prevents every­thing and does nothing'.^[158] A fundamental reason for this growing public unease, in Pound's view, was the fact that the legal system exhibited ‘too great a respect for the individual, and for the intrenched [sic] position in which our legal and political history has put him, and too little respect for the needs of society, when they come in conflict with the individual, to be in touch with the present age'.^[159] This general complaint was also raised in the work of European writers, who called it ‘la question sociale’ and who also linked it to questions of legal method. This happened not­ably in France, where the need for a new approach was felt earlier than in Germany due to the advancing age of the code Napoleon.^[160] But while in Europe writers took their main examples from private law doctrine such as employment contracts and liability for industrial accidents, the insti­tutional set-up in the US furnished striking illustrations also in constitu­tional law. Pound relegated typical private law examples to his footnotes, and took the most contentious contemporary issue in constitutional law as his prime example. As he wrote in the article just cited: ‘A glance at one of the [case law] digests will show us where the courts find themselves to-day. Take the one subheading under constitutional law, “interference with the right of free contract,” and notice the decisions.’^[161] Pound went on to cite a series of cases striking down on constitutional grounds vari­ous pieces of legislation intended to protect employees. He did not yet include the case decided in the US Supreme Court on 17 April that year that would shortly afterwards become the main focus for the critique of classical orthodoxy: Lochner v. New York.

In Lochner, the Supreme Court invoked the constitutional right of free­dom of contract to invalidate legislation enacted by the State of New York on the maximum working hours for bakers.^[162] The line of decisions cul­minating in Lochner, which included such famous earlier decisions as Allgeyer v. Louisiana (1897), was criticized at the time by other scholars for its obstruction of progressive legislation. It was Roscoe Pound, however, building on Justice Holmes, who added a decisive new element: these deci­sions were not simply wrong, they were wrong because they were overly conceptualistic. The steps by which Pound came to frame his critique of these constitutional law decisions in the terms of a critique of conceptual jurisprudence can be traced through his writings, where a critique of an individualistic bias in the common law gradually becomes aligned with an attack of excess abstraction and reliance on deductive reasoning. The two themes are joined only in very loose terms at first, in the 1905 article just cited, when Pound wrote: ‘the common law knows individuals only [...] But today the isolated individual is no longer taken for the center of the universe. We see now that he is an abstraction..,'^[163] By 1908, both the refer­ences to the individual and abstraction are discussed in somewhat more depth, in his famous article on ‘Mechanical Jurisprudence', of which the title by itself clearly shows a desire to emphasize conceptualist flaws in jur­istic reasoning:

'I lie manner in which [the relevant constitutional clause] is applied affords a striking instance of the workings to-day of a jurisprudence of concep­tions. Starting with the conception that it was intended to incorporate [the social Darwinist text] Spencer's Social Statics in the fundamental law of the United States, rules have been deduced that obstruct the way of social progress. The conception of liberty of contract, in particular, has given rise to rules and decisions which, tested by their practical operation, defeat liberty.^[164]

Pound's reference to Herbert Spencer's book Social Statics is easy to under­stand: Justice Holmes had used precisely this reference in his landmark dissenting opinion in the then very recent Lochner case, which Pound now cites. But Pound's effort to merge Holmes' critique of social-Darwinism and his own anti-conceptualist argument then requires some really rather strained use of legal language. The quoted passage is replete with refer­ences to ‘conception', ‘deduction' and disregard for ‘practical operation', so that, on the surface, Pound's argument reads like a standard denunci­ation of Begriffsjurisprudenz as found in German literature. But on closer inspection the real role of each of these terms and, especially, of the con­nections between them, is peculiarly rhetorical. Pound's continued use of the term ‘conceptions', rather than ‘concepts' as a translation for ‘Begriff, may have had a special significance here. Spencer's social-Darwinist logic, and the laissez-faire attitude more broadly, can meaningfully be qualified as rigidly held conceptions, from which particular positions might be, in some meaningful sense, ‘deduced'. But this usage is a long way from ‘con­cepts' and deduction in the sense used by German authors referring to a ‘heaven of juristic concepts' or to ‘Begriffsjurisprudenz’. It is different, too, from Langdell's emphasis on reasoning from a few top-level private law categories.

It is perhaps not surprising therefore, that Pound appears to backtrack somewhat shortly afterwards in his efforts of trying to connect his cri­tiques of excess individualism and abstraction, or conceptualism. In his major article on ‘Liberty of Contract' (1909), the two strands are simply presented alongside each other, without any real effort to work through any connections:

In my opinion, the causes to which we must attribute the course of American constitutional decisions upon liberty of contract are [...]:

(1) The currency in juristic thought of an individualistic conception of justice, which... exaggerates private right at the expense of public right [...];

(2) what I have ventured to call on another occasion a condition ofmech- anical jurisprudence, a condition of juristic thought and judicial action in which deduction from conceptions has produced a cloud of rules that obscures the principles from which they are drawn, in which conceptions are developed logically at the expense ofpractical results and in which the artificiality characteristic of legal reasoning is exaggerated;

(3) the survival of purely juristic notions of the state and economics and politics as against the social conceptions of the present [.]^[165]

Conceptualism is here framed, once again, in terms familiar to Pound's European contemporaries, and presented alongside individualism as one of the main causes of dissatisfaction with constitutional decisions. By then, however, the genie of conceptualism as conservative politics, and therefore of judicial method as political ideology more generally, was already out of the bottle.^[166]

5. Two orthodoxies and their critiques

For all their visible similarities and traces of intellectual indebtedness, the European and American received understandings of classical legal orthodoxy diverged on at least two significant points. These can be sum­marized as follows. First, there were real differences in the nature of the dominant manifestations of classical orthodoxy, with categorization being the principal conceptual operation in the US, while subsumption occupied a central position in Europe. And second, there is the legacy of Roscoe Pound's imaginative explicit linking of the methods of classical orthodoxy to conservative politics, when compared to the absence of this connection in German legal thought.

These differences are discussed below. They are important primarily because they continue to affect the way we think about the nature and role of legal formality. In short, while the supposedly neutral ground rules of classical orthodoxy have also been found to imply substantive prefer­ences, for individualism, stability and legal certainty, in Europe,^[167] the association between legal method and politics, and therefore indirectly between legal formality and politics, has been both much stronger and more durable in the US.

(a) The uses and manifestations of orthodoxy (I): subsumption and categorization

Classical orthodoxy, in the mind of its critics, adhered to an ideal of adju­dication as a neutral, objective process carried out by judges bound to the law. Conceptual reasoning was essential to upholding this image. As Philipp Heck wrote, this type of reasoning allowed the judge to feel, falsely, ‘relieved of all responsibility. Like Pilate he may wash his hands and calmly declare: “It is not my fault, it is the fault of the concepts” '.^[168] But while this general depiction of conceptual reasoning is pervasive both in Europe and the US, there were important differences in operation and impact as between the two versions.

One of these differences relates to the distinction between subsump­tion and categorization as manifestations of conceptual jurisprudence. Subsumption, or reasoning by deduction from abstract concepts, was the primary target of German and French critics of conceptual jurispru­dence, who disparaged the classical jurists' efforts to uphold the image of gapless pyramidal systems of law. In the US, by contrast, in the absence of any major codification of private law, questions of system, deduction and gaplessness were much less pressing. Instead, the main emphasis was on a second main tool in classical orthodoxy's arsenal. That tool was ‘categor­ization' - the technique of drawing firm, principled boundaries around spheres of competence.^[169]

This difference is, of course, one only of emphasis and of relative prom­inence. Subsumption and categorization both turn on the idea of rigor­ous definition and invoke a reasoning process that classifies cases as lying either within or outside the scope of a particular concept, rule or category. Categorization and bright-line demarcation clearly also played a significant role in European legal thought, alongside deduction or syl­logistic reasoning. As Marie-Claire Belleau has written, ‘[b]inary, on/off structures' were favoured in French jurisprudence ‘because such struc­tures helped maintain the illusion of the complete logical determination of the system'.^[170] Meanwhile, subsumption did play an important role in the American context, where nineteenth-century legal thinking had gradually become more systematic and abstract, even in the absence of codification.^[171] In particular, Pound's critique of the Supreme Court's con­stitutional right jurisprudence, discussed earlier and revisited in the next section, was principally a critique of the abuse of deduction, very much along French and German lines.

But these important caveats notwithstanding, it does seem fair to iden­tify syllogistic reasoning and the idea of the system as typical European manifestations of conceptual jurisprudence, and categorical reasoning and the bright-line rule as their US counterparts.^[172] This difference in emphasis is important for at least two reasons. One of these relates to the specific way in which categorization has been used in US constitutional adjudication. As discussed in the next paragraph, on this point the argu­ment will simply be that the greater prominence of categorization in US law generally also made this specific use more likely. The other reason, however, relates directly to the difference between syllogistic reasoning and categorical reasoning. On this second issue, the argument runs as follows.

While subsumption and categorization have much in common, they can also implicate and sustain subtly different understandings of legal for­mality.^[173] Categorization can rely upon, and be the manifestation of, what may be called a ‘formality of choice'. A judge, or a lawyer more generally, may choose to take a categorical approach to a particular legal problem or an area of the law, for reasons familiarly linked to legal formality, such as legal certainty, predictability or the demand for principle. This idea of formality of choice is significant in two ways. First, if resort to legal for­mality is itself understood in consequentialist terms, attention is bound to turn to these underlying substantive reasons.^[174] As discussed in more detail in Chapter 5, this idea of formalism as strategy is highly typical for American legal thought, where it has even occasioned its own distinctive branch of legal theory: ‘the jurisprudence of form'.^[175]

Categorization as the manifestation of a formality of choice has a sec­ond implication. This is the idea that categorical approaches can easily co-exist with more gradualist, non-categorical, informal approaches to neighbouring problems or doctrinal areas. On this view, a particular area could be ‘rulefied' over time. Categorization and gradualism may even be combined within one overarching, multi-part ‘test'.^[176] By contrast, syllo­gistic reasoning and system building rely upon, and are the expressions of, an understanding of legal formality that is much more comprehensive and less open to strategic deployment. Reasoning by deduction and sys­tem building are not as easily seen as conceptual tools available for use and for combination with other approaches. To sustain jurists' commit­ment to system building, the system they are working towards has to be, at a minimum, reasonably comprehensive and complete, at least in aspi­ration. If ‘less systematic' parts of the law were to persist, that would likely be seen as a case of neglect or conceptual failure - ‘blemishes' in Justice Story's evocative depiction^[177] - rather than as products of design. Similarly, syllogistic reasoning either is or is not able to sustain faith in the outcomes of legal decision making. This is not to say that, as an empirical matter, legal systems will either be fully systematized and exclusively reliant on syllogistic reasoning, or accord no place at all to system and subsumption. That would be an entirely unrealistic claim. The argument is rather that the kind of faith, sensibility or commitment, involved in system building and in deductive reasoning from concepts, is less easily conceived of as a commitment that can be turned on or off at will. Categorization as a legal technique, by contrast, seems much more easily able to sustain such a partial commitment, even if it is used selectively, openly instrumentally, and in conjunction with other approaches. Put simply, it is much easier to believe in categorization only some of the time than in reasoning by deduction only some of the time.^[178] Chapter 5 elaborates upon this diffe­rence and claims that such a choice-based, instrumentalist understand­ing of legal formality is characteristic for American legal thought more broadly. At the same time, a more comprehensive, all-or-nothing concep­tion of legal formality is emblematic for legal thought in Europe.

(b) The uses and manifestations of orthodoxy

(II): public and private power

Categorization may have been more prominent in US jurisprudence than in Europe, but categorical, binary solutions of course played a significant role on both sides of the Atlantic. Categorical, approaches found favour because of their proximity to prevailing worldviews and views on the function of law. Mathias Reimann has this succinct summary of prevail­ing views of law and society in Germany:

Law served only to limit private spheres offreedom in such a way that these spheres could coexist in a society. Its concern was not to find the true idea of justice, or to be fair to the parties under the particular circumstances of the case. It drew only the ‘invisible line' at which one individual’s freedom had to end because another one’s began.^[179]

This worldview allowed classical jurists to view adjudication as ‘an objec­tive task of drawing lines or categorizing actions as though they were objects to be located in the spatial map of spheres of power’.^[180] This rela­tionship between categories and boundaries of power assumed a dramat­ically different meaning as between Europe and the US. In the former, the boundaries of power envisaged were boundaries to the power of private individuals, asserted against their neighbours through regimes of contact, property or tort law. German examples of demarcation issues typically concern questions such as the right of the owner of a business to enjoin a private individual interfering with his trade or business.^[181] In France, Geny called for a more flexible approach to the determination of the ‘meeting of wills' requirement as a boundary to the freedom of contract,^[182] so that in some cases one-sided promises might be held binding - an innovation conceptually unthinkable in classical legal ortho doxy, but of practical value for business.^[183] In the US, however, it was not only the power of individuals that had to be demarcated, but crucially also public power - the power of government institutions. Here, the salient question was: ‘[t]o what extent may occupations or businesses [...] be made subject of [governmental] reg­ulation under our American constitutions?'^[184] The answers to this type of question may have been familiarly categorical in nature. Businesses that were ‘purely and exclusively private' could not be regulated, whereas busi­nesses that were ‘affected with a public interest' could, for example.^[185] But the implications of this type of public/private boundary-drawing were much more politically sensitive than the French or German fine-tuning of the law of obligations, significant as those innovations were. The same is true of the kinds of public/public demarcations that were pervasive in American constitutional adjudication, but which judiciaries in other countries never really had to deal with - at least certainly not on anywhere near the same scale.^[186]

Studies of classical orthodoxy tend to conflate these two very differ­ent questions of the demarcation of private and of public power. This, for example, is Duncan Kennedy's influential early depiction of such classical legal thought:

The premise of Classicism was that the legal system consisted of a set of institutions, each of which had the traits of a legal actor. Each institu­tion had been delegated by the sovereign people a power to carry out its will, which was absolute within but void outside its sphere. The justifi­cation of the judicial role was the existence of a peculiar legal technique rendering the task of policing the boundaries of spheres an objective, quasi-scientific one.^[187]

The ‘institutions' Kennedy refers to here are individuals and corporations as well as governmental actors. Each of these institutions was thought to possess a power that was ‘absolute within but void outside' a certain sphere of action. But while this view is very useful in stressing similarities between European and US classical orthodoxies, it risks obscuring the crucial difference between the demarcation of private power among indi­viduals and that of the limits to public power. Or, put differently: between demarcating the liberty of individuals vis-a-vis other individuals, and in relation to their government, or the power of government branches amongst themselves. Even questions familiar to European critics of clas­sical orthodoxy in private law, such as the inequality of bargaining power between employees and employers, quickly assumed an explicitly public dimension in the US, simply because they arose in the context of judicial review of legislation.^[188] This added dimension of ‘public power' means that categorization, as a cornerstone of classical orthodoxy, had a very differ­ent, much more political, meaning in the US than it had in Europe, and this from the outset.

This original significance is of continued relevance for modern invoca­tions of categorical or rule-based approaches to constitutional law. This historical background, in which demarcation of public power and the pro­tection of individual liberty from government have always been import­ant functions of categorization, shines a new light on pervasive American fears of ‘balancing away' fundamental rights protection, on the repeated efforts to create ‘bright-line rules' as alternatives to balancing in many different areas of constitutional law,^[189] and on explicit calls to ‘reclaim the methodology of late nineteenth-century legal thought' as a way to get out of ‘the conundrums of balancing'.^[190]

(c) Roscoe Pound and the linking of method and politics

In German and in French legal thought, the critique of classical ortho­doxy was predominantly a private law project. In the US, this critique quickly assumed constitutional significance through the guarantee of the ‘freedom of contract' in the Bill of Rights, and its interpretation by the US Supreme Court. In addition, in German and French law, the cri­tique of classical orthodoxy was primarily an academic project, while in the US the main target of criticism was the judiciary, in particular for its constitutional decisions of the kind just mentioned. The general background to these differences is easy to see. A highly visible politi­cal role was thrust upon law and adjudication in the US much earlier than anywhere else. Law and legal method in the US had to face ques­tions concerning constitutional judicial review, of rights clauses and of federation-state relationships, that were virtually unknown in Europe at the time. As Thomas Grey has written: ‘The most distinctive feature of American law has been its deep involvement with American government and politics, and as a result, legal theory in America has always had ines­capable political implications'.^[191]

The idea that such implications are indeed ‘inescapable' has a long trad­ition in American academic legal writing. In his article on ‘The Scope and Purpose of Sociological Jurisprudence', Roscoe Pound observed that ‘the jurists of whom Jhering made fun [in Europe] [...] have their counter­part in American judges'.^[192] In retrospect, a crucial but commonly over­looked theme in this remark is not the similarity between Europe and the US that Pound focused on, but the difference between ‘jurists' (ivory tower scholars) on the Continent and ‘judges' (officials with real power), in the US.^[193] This difference matters, because it is through these judicial decisions, notably those of Lochner, the bakers' working hours case, and its progeny, that the perceived vices of classical orthodoxy have become part of received constitutional law wisdom in American legal thought. The need to avoid ‘Lochners error', it has often been noted, is a ‘central obsession' in American legal thought.^[194] It was Roscoe Pound, building on Justice Holmes' dissent, who first identified this ‘error' as stemming directly from the conceptualism and formalism of classical orthodoxy.^[195] Construing this connection between the Lochner-Court's political con­servatism and conceptualist jurisprudence was a creative act; the concep­tualist or formalist nature of this decision and many other similar ones is not obvious. The Lochner decision itself can serve as an example. There are statements in Justice Peckham's majority opinion that sound very dif­ferent from what might be expected on the basis of Pound's critique. In fact, much of the reasoning reads virtually like a form of proportionality analysis, familiar nowadays in Europe and elsewhere, with its references to appropriateness and necessity.^[196] Justice Harlan's reminder, in dissent, that ‘liberty' under the Constitution does not import ‘an absolute right', is matched by Justice Peckham's aside that ‘of course [...] there is a limit to the valid exercise of the police power by the State'.^[197] Meanwhile, Justice Holmes' major argument in dissent was that the majority had decided the case ‘upon an economic theory which a large part of the country does not entertain'.¹⁰⁸ This is where he added the reference to ‘Mr. Herbert Spencer's Social Statics' that Pound later also invoked. It is true that a few lines later in his opinion Justice Holmes offers his famous anti-formalist aphorism that ‘[g]eneral propositions do not decide concrete cases'; again setting up the point nicely for Pound's subsequent critique. But, intriguingly, this maxim appears not as part of Holmes' attack on the majority's reason­ing, but by way of a caveat to accompany his own alternative approach to this area of the law. ‘General propositions do not decide concrete cases', Holmes writes; adding: ‘But I think that the proposition just stated, if it is accepted, will carry us far toward the end.'¹⁰⁹

It is perhaps not surprising that relative outsiders to American law were among the first to argue that this supposed connection between method and politics was less than convincing. For this claim there are striking implicit and explicit illustrations. One is Edouard Lambert's blockbuster 1921 book Le Gouvernement des Juges et la Lutte contre la Legislation Sociale aux Etats-Unis. Lambert, a law professor at Lyon, analysed and criticized exactly the same conservative anti-regulatory case law that Pound had been concerned with. He wrote his book largely as warn­ing to a French audience newly enamoured of the idea of constitutional review.^[198] But Lambert's critique does not in any way single out ‘formal­ism' or ‘conceptualism' as culprits. Rather, the ‘instruments of judicial supremacy', as Lambert labels them, are flexible methods of interpret­ation, the ‘humble' stature of legislation in common law America, and the review of ‘rationality', ‘opportuneness', ‘reasonableness' and ‘expediency' of legislation under the Due Process clause.^[199] Excessive judicial flexibility and insufficient respect for legislation, then, appear as the foundations of Lambert's critique, rather than any supposed deduction from timeless principles.^[200] And it was another foreign visitor, H.L.A. Hart, who offered an early explicit critique of the connection, writing that while Lochner might have been ‘a wrongheaded piece of conservatism', there simply was ‘nothing mechanical about it'.^[201]

Regardless of the merits of Pound's assimilation of Lochner and the perceived vices of classical orthodoxy, the connection quickly assumed canonical status. It allowed Progressive jurists and other critics to point out a single ‘Demon of Formalism' at which to aim all their arrows.^[202] The Lochner line of decisions is thought to have culminated in the crisis over New Deal legislation and Roosevelt's infamous court-packing plan. Since that time, much of American constitutional scholarship can be structured around the basic question of why Lochner was wrong and certain later controversial decisions - Brown v. Board of Education, Roe v. Wade - were right.^[203] In this way, the Lochner episode has perpetuated the relevance of classical orthodoxy to understandings of modern American constitu­tional law in general.^[204] But if ‘[t]he basic plot line of American legal mod­ernity has been drawn from the responses to Langdell and Lochner’,^[205] Hart and Lambert’s work are useful reminders of the precarious and con­tingent nature of the connection between these two original sins. And when ‘Langdell’ and ‘Lochner begin to drift apart, so too do formalism and conservatism, legal method and politics.

C.