Common Sense and Legal Science

The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either naïve or dogmatic. This Note seeks to challenge the assumption of some modern scholars that because nineteenth-century American legal theorists did describe law as a science, their use of the term “legal science” represented an attempt by the legal elite to obscure the inherently political nature of legal doctrine. At the same time, this Note challenges the claims of other scholars, who have defended the concept of law as a “science” by arguing that legal reasoning can yield deductively necessary and certain conclusions. Both groups of scholars assume that achieving legal certainty was the goal of nineteenth-century legal science and only disagree as to whether such a goal was intellectually justified. This Note argues that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. Specifically, such theorists as James Wilson and Gulian Verplanck developed a philosophy of law grounded in epistemological and metaphysical arguments of the Scottish Common Sense school of philosophy. For these theorists, such arguments seemed to justify their belief that they could discover legal principles through the same inductive, empirical methods that had yielded discoveries in the natural sciences. In other words, common sense philosophy allowed them to conceive of themselves as legal scientists.

The Forgotten Foundations of Hart and Sacks

The set of teaching materials known as The Legal Process continues to exert tremendous influence over mainstream public-law scholarship. Developed by Harvard Law Professors Henry M. Hart, Jr. and Albert M. Sacks in the late 1950s, those materials formed the cornerstone of the legal education of generations of lawyers, judges, and legal scholars. In part for that reason, the methods of legal interpretation and institutional analysis they articulated arguably still constitute the reigning paradigm of scholarship in the areas of statutory interpretation, federal courts, and administrative law. 

Despite their pervasive influence, however, the philosophical and jurisprudential foundations of The Legal Process are poorly understood. The standard historical account of the text denies any such foundations exist, characterizing it instead as an effort by its editors to respond to the skeptical threat of Legal Realism by advancing an “instrumentalist” or “neutral” theory of law that denied the need for, or value of, any deeper philosophical justification.

Though originally offered as a critique of the approach embodied in the teaching
materials, that account has been accepted even by those working within the Legal Process framework. That acceptance is surprising and troubling, because the standard historical account is deeply mistaken. In the first chapter of The Legal Process, the editors consciously advance controversial positions on the nature of morality, law, and legal knowledge. And if one looks carefully at those positions and the sources the editors rely on in staking them out, one can see that they were trying to construct a model of legal practice and scholarship based on the metaphysical and epistemological doctrines of one strand of philosophical pragmatism. Understanding such philosophical commitments not only enables us to better explain how Hart and Sacks took themselves to be responding to Legal Realism, but also forces us to consider how more recent efforts to ground legal practice fare in comparison.