NOTES ON THE TEACHING OF JURISPRUDENCE

Author(s): Thomas A. Cowan

Source: Journal of Legal Education , 1962, Vol. 15, No. 1 (1962), pp. 1-26
Published by: Association of American Law Schools

Stable URL: https://www.jstor.org/stable/42891457

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JOURNAL OF LEGAL EDUCATION
Volume 15 Number I

NOTES ON THE TEACHING OF JURISPRUDENCE

Thomas A. Cowan *

Introduction

Tn these notes, I propose to use the term jurisprudence i

broad sense. I mean to include not only analytical work on the
law, but also studies in the relation of law to the other sectors of
knowledge. Thus understood, jurisprudence is nothing less than
of all philosophical and scientific efforts to create legal theory.
ness of the enterprise is to be its prime virtue. However, the pr
much methodological freedom is correspondingly great. Each
make his own way in this maze of theory. To be sure, certain va
tions do exist, so that not everything under the sun is jurisprud
knows, for example, that jurisprudence should grapple with phi
with science, with morality, with art. But he also knows that th
is a time in which the philosopher feels no obligation to think a
in which the scientist for his part ignores law, the moralist look
on it, and the artist flees from it.

Nor can it be said that the two-century-old Anglo-American p

against jurisprudence as mere "metaphysics" has altogether ab
in this country. The student of legal theory in both England an
must still struggle to a certain degree against a current of opinio
gards his work as something less than fully validated profes
is for this reason, too, I suppose, that those in the field are s
about sharing their experiences with one another. One has no re
to passing on to colleagues a new teaching device in Torts, Proce
Commercial Law. These programs are thought to be of genera
The teacher of Jurisprudence cannot make any such assumption

* Professor of Law, Rutgers University.

15 Journal of Legal Ed. No. 1 X

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2 Journal of Legal Education [Vol. 15

teachers turn to Jurisprudence precisely bec

for experiment, for new personal experien
be jealously guarded. It follows, therefore, t
ing of Jurisprudence give rise to a parad
attempt to tear the veil from that which oug
there is a peculiarly effective defense to
readers that after I have done, jurispruden
as ever. With this odd apology, I offer the f

When and How to Start Teaching Jurisprudence

The best time to undertake to teach Jurisprudence is at once. I say
this in spite of the fact that many people with a warm spot in their hearts
for it decide that only the distant future will give them enough time. This
is a mistake. It is never too soon to begin. And if one is unable for any
of a large number of reasons to turn a favorite course into Jurisprudence,
there is nothing to prevent him from turning Jurisprudence into one of
his favorite courses. In fact, this is how many an adventure with Juris-
prudence starts. It often happens thereafter that when Jurisprudence
threatens to gobble up the substantive part of the course, fission results.
Two courses appear where only one grew before. If the original course
was Torts, the offshoot may be Relational Interests; if Legislation, it be-
comes Legisprudence ; if Evidence, then Methods of Proof; if Bills and
Notes, then Problems of Statutory Interpretation; if Administrative
Law, then Decision Theory; if Crimes, then Law and Psychiatry. Trade
Regulation can turn into the Iron and Steel Community, Taxation into
World Law, and Procedure and Judicial Administration into Operations
Research and Management Science. Sometimes the baby is called Intro-
duction to Law. At other times or places, it is named Methods of Legal
Thinking, Legal Logic, Legal Semantics, Legal Philosophy, Legal Meth-
od, or Introduction to the Legal Process.
There is an amazing amount of this sort of parthenogensis going on.
The death rate is, of course, quite high, for not all of these monsters are
viable. I have buried quite a few myself, but some of the least promising
have lived. As in other forms of parenthood, one never knows what he
is about to get. The fun is in the trying. To teach Jurisprudence is
hardly a quick avenue to fame and fortune, but it (or one of its aliases)
is often a way to enjoy a beneficent change of work. The law teacher
lives, in the main, for others. Jurisprudence allows him to do something
of peculiar value for himself.
Aside from teaching, we in the United States have little opportunity to
develop the subject of jurisprudence. In other parts of the world, there

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1962] Notes on the Teaching of Jurisprudence 3

are learned journals devoted exclusively to jurisprudence.

ception of the Natural Law Forum and the Journal of Leg
our country provides no central exchange for jurisprudentia
We lead a beggar's life of dependence on the law reviews, and
offer only occasional refuge, no central tendencies, movemen
have a chance to grow. When the neorealistic tendency w
in the 'twenties and 'thirties of the current century, the
different. That movement issued a call for practical tests of
poraneous efficacy of legal precepts, doctrines, and rules. Th
minded law reviews offered the movement instant support.
movement has spent itself and jurisprudential research ha
the heights (or descended to the depths), the reviews seem n
appropriate vehicles of expression.
Some years ago, I conducted a survey among the teache
prudence on the feasibility of a separate journal of jurisp
younger and the middle groups were enthusiastic, but m
older hands were skeptical, pessimistic, or downright op
financial support would depend upon the backing of thi
the writer concluded that a full-scale, subsidized scholar
philosophy of law or jurisprudence was simply out of the qu
time. Nevertheless, it still remains open as a possibility t
riodical could be started by the younger group, perhaps on a
Lacking this, there should be at least some attempt to bring
tion of the profession the many jurisprudential writings by
and others that are not listed in the indexes of legal perio
very least, we need some kind of a clearing house for jur
news.

II

The Choice of Subject Matter for a Course in

Jurisprudence
I have cast the body of these notes into two main sections : philosophy
and science. Suggestions and criticism of course contents are given on
an informal basis, and subjective appraisals and personal experiences are
freely expressed. My object is not to document research in the various
jurisprudential fields but rather to present as many possibilities for inte-
grating the learning of other disciplines into law as are feasible within the
limits of a report.
A. Philosophy
1. The course in Jurisprudence could be taught from the texts of Plato
and Aristotle alone. I have never done this, but I have taught a whole

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4 Journal of Legal Education [Vol. 15

course in elementary ethics from the Rep

Phaedo, and possibly the Apology, Crito, a
ferent tack, the Timaeus - there would be
dential problems. For contrast, Aristotle'
Politics, and, in depth, the Metaphysics, coul
the instructor complete freedom to improvi
tough to bite into.
2. For a thinner spread of the Greeks, on
nature philosophers. This would begin the co
of nature and those of justice were virtu
Socrates, Plato, and Aristotle - form a nat
sent the bulk of the course. The Epicureans c
and the course could conclude with the Stoics
law and the modern world.

3. A still thinner survey would include the Sophists, Plato, Aristotle,

the Greek and Roman Stoics, Augustine, and Aquinas, and call it quits.
4. A straight course in natural law in the Roman Catholic tradition
could be undertaken. Unless one is a specialist, this should perhaps be
restricted to Plato - St. Augustine, Aristotle - St. Thomas, and then the
modern commentators.

5. It would be possible to start with St. Thomas, raise the issues of

nominalism and realism, and from there go directly into modern phi-
losophy. Main lines branch out from here. The course could start at
any of these points.

a. Epistemology. In order to emerge at the level of modern

science, it might be desirable to follow the development of theories
of knowledge since the Renaissance. The line here could be from
Descartes, Leibniz, and Spinoza as rationalists, to Locke, Berkeley,
and Hume as empiricists, to Kant, to Hegel, to nineteenth-century
positivism (Comte), to pragmatism, and thence on to the broad
delta of the present. On the way, the ancient philosophical "ism-
opposites" could be picked up and exemplified in law : rationalism-
empiricism, idealism-realism, idealism-materialism, determinism-
free willism, scepticism-dogmatism, etc. I have followed this plan
for the philosophy part of the course for years.

Of more specialized interest are the modern movements of logical-

positivism, phenomenology, and existentialism to the extent that
these bear on the subject of epistemology. The above need a spe-
cialized knowledge- - or, rather, will lead to the gaining of a spe-
cialized knowledge- of philosophy as a technical body of learning.

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1962] Notes on the Teaching of Jurisprudence 5

b. Ethics. Ethics is nearer to law than is science. Hence, it is

perhaps more natural for lawyers to start with the history of ethics.
Almost necessarily this leads back to the Greeks, since nonreligious
moral theory in the Western world never again reached the specula-
tive height of the Greeks. Still the moderns do mean more to us
than the ancients, and one could surely begin with the Renaissance
and come down to the present through the history of subsequent
ethical speculation. Or better still, begin with St. Thomas in the
Summa and follow the development of secular natural law through
Hemmingsen (see Pound) and his successors, and Spinoza (the
Tractates ) ; in England through Hobbes, the Cambridge Platonists,
Leibniz (his jurisprudential writings), back to Locke, and thence
to Blackstone as the dividing line in England ; from here, to America
and the "higher law" theorists as outlined in Charles Haines; and
thence to the present-day theories of natural law.
c. Politics . Those whose special interests lie in this direction
could follow a standard history of political thought in the Western
world and weave in more extended excursions into the history of
Anglo-American and Continental European legal and political in-
stitutions. The American Society for Political and Legal Philos-
ophy is devoted to an over-all synthesis of the three disciplines. It
initiates theoretical studies 1 of leading political conceptions such as
Authority, Community, Responsibility, and Liberty. At the "sci-
entific" end of the scale, certain political theorists are trying to apply
decision theory to the administrative process in an attempt to supply
an experimental base for political science.2
d. Analysis . For those with training in modern logic and se-
mantical theory, the prospect is open for an advanced course in the
relation between philosophical analysis and analytical jurispru-
dence,3 or law and symbolic logic,4 or law and game theory. For
those not desiring to undergo the rigors of modern logic, the much
more accessible practices of the Oxford "ordinary language" theo-
rists offer an avenue of approach to a modernized analytical juris-
prudence.5

lAt annual meetings whose results are published as monographs under the title
of Nomos , edited by Carl J. Friedrich, published by the Liberal Arts Press, New
York, N. Y.
2 Formerly in P.R.O.D. and now in a periodical known as the American Behavioral
Scientist.
3 See Samuel Shuman's forthcoming book entitled Lato and Morals.
4 The group that publishes Moaern uses of l^ogic in L,aw {m.um.Jj.) studies tne
use of electronics in the law, particularly data retrieval. The bibliographies in this
periodical are especially helpful. See further the section in this paper on decision
theory.
5 In the work of H.L.A. Hart and associates.

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6 Journal of Legal Education [Vol. 15

6. For contemporary philosophy, start w

good way into contemporary theories of soc
tism of Peirce, James, and Dewey and pick u
Logical positivism of the Vienna Circle op
Law of Kelsen; phenomenology leads to L
ophy 7 via Husserl; existentialism comes b
ger, Sartre and Camus, and the Americ
cidence of existentialism remains to be de
temporary legal philosophy could then be to
varieties of natural law.
I should like now to turn for a few moments to certain fundamental
problems that philosophy raises in the teaching of Jurisprudence. As was
said above, one feels it part of the tradition in Jurisprudence to come to
grips with philosophy. But, as Huntington Cairns has shown,8 philos-
ophy feels no corresponding obligation. There is no such thing as modern
legal philosophy. The result is to drive our teachers of Jurisprudence
to regress along the line of the historical development of philosophy of
law from Hegel back to Plato and beyond. Indeed, there is a strong
temptation to begin and to end with the Greeks. It is not an accident
that lawmen are attracted to the greatest literary masterpiece of antiquity,
Plato's Republic , which has for its subject the notion of justice through
law ; or to Aristotle's Ethics, Politics , or Constitutions - profound empiri-
cal studies in the way men govern themselves through morality and law.
The subsequent history of philosophy provides further models for the
philosophical part of courses in Jurisprudence to attach themselves to.
For the scholastics, it is simply a fact that no philosopher-theologian
has supplanted St. Thomas in the manner in which St. Thomas encom-
passed his predecessors. Hence, the natural tendency of the scholastics
to remain with a medieval tradition. For those interested primarily in
the relation of law to government and politics, the philosophers of the
Enlightment have no peers. It is normal to stay with them. Indeed,
Kant closes off this tradition as the last liberal democratic philosopher
of first rank.

« It is my notion that we did not have in this country a movement that corresponds
to philosophical positivism, but went directly into pragmatism, a much more so-
phisticated doctrine. Therefore, the Continental and Latin American developments
of positivism have to be learned as imports. Our temptation in law is to scant con-
temporary positivistic theories. To correct this tendency, see Edgar Bodenheimer,
Jurisprudence (1940) ; The Natural Law Doctrine Before the Tribunal of Science:
A Reply to Hans Kelsen , 3 W.Pol. Q. 335 (1950) ; Law as Order and Justice , 6 J.Pub.
L. 194 (1957) ; The Province of Jurisprudence , 46 Cornell L.Q. 1 (1960).
7 2 20th Century Legal Philosophy Series: Latin- American Legal Philoso-
phy (1948).
»Huntington Cairns, Legal Philosophy from Plato to Hegel (1949).

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1962] Notes on the Teaching of Jurisprudence 7

We are faced with a situation in which all the forces at work on us in

legal philosophy seems to push us back to moral philosophers of a by-
gone age. Why is this ? It might be suggested that one reason is the
apparent failure of the human race to have progressed in either moral
theory or moral practice in the period of recorded history. Our first
parents and their children were neither better nor worse than we are,
the ancient Israelites neither more bloodthirsty nor more peaceful than
their modern descendants - or than the rest of the world for that matter.
No loftier moral sentiments appear in the religious tradition of the West
than had already been expressed by the founders of the Eastern religions.
In the matter of moral practice, we have little to show that is superior
to that of the ancients. The contrary sentiment was rife in the last
century, but the two World Wars that we have already run through and
the next one that we are avidly contemplating have dispelled that naive
illusion. We can certainly claim a growth in moral sensibility, as distinct
from an elevation of moral theory or practice. Greater proportions of
the world's population are coming to regard the customary callous moral
practices of the race with horror and revulsion. And this is surely an
evidence of moral evolution. But sadly enough, man's mastery of ex-
ternal nature and the growth of knowledge of human nature both conspire
to allow the pursuit of evil to keep pace with the growing perception of
the good. While good men are constantly more sensitive to evil, evil men
grow increasingly more able to do harm. Or rather, since this is not a
question of separating good men from bad, the evil in us grows more
powerful as the good becomes more discernible.
In this state of moral balance, what is more natural than that jurists
should regard the whole of our past history of morality and of law open
to them to choose any spokesman that best suits their needs. No received
tradition of moral progress can make their choices outmoded.
The same absence of a line of progress exists in the history of philos-
ophy. All Western philosophizing looks to the pessimist like a winnow-
ing of Plato and Aristotle. The highest practical achievement was the
synthesis of philosophy and religion that St. Thomas accomplished.
Kant created modern philosophy of science but left nothing for law to
use on the grand scale. To put the matter in a nutshell, our present
teachers of legal philosophy feel that it is all one whether they go back
a century and a half to Hegel or twenty-four centuries to Plato. It is
assumed that there is nothing much for law in contemporary philosophy.
This is perhaps true. To begin with, no contemporary philosophical
movement takes law for even an important part of its subject-matter.
This means that one cannot go directly to contemporary philosophers
for inspiration in matters legal, as can still be done with all major philos-

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8 Journal of Legal Education [Vol. 15

ophers from Hegel back to antiquity. Hence

port between law and a modern philosophic
sides of the job himself.
This prospect alone is discouraging enoug
to be much worse. Actually, contemporary
law. Philosophy, as now practiced in this co
offshoot or other of the philosophical mo
exclude certain philosophical specialties s
ophy.) Philosophical Analysis concentrat
speech, sentiment, action, and the like. Ana
logic, which however, because of the very
be put to much use. Coarser analyses mu
give the analyst something to do besides an
er analyses take the form of endless verb
of words, preferably those over which the
esoteric control. Practical applications of
the main, limited to the foundations of ma
ful attempt to keep up with the developm
notably physics.

Analytical methods as applied to moral

applied to aesthetics they are farcical. In
which analysis became the dominant phil
high popular prestige of the physical scie
ophy - that is, the pursuit of wisdom - was
philosopher is supplanted by the new-fashio
"ordinary language" analyst.

It will not have escaped the attention of

philosophy has a common bond with anal
exercises, presumably, employ similar a
would seem that analytical philosophy w
prudence - that the highly developed te
could easily revolutionize the practice of
not happened. Nor is it likely to happen, be
a highly technical art and law always has
casional "double expert" can make his w
lacking adequate incentive to bridge the g
neglects analytical jurisprudence no less sha
lects law. Indeed, the movement of philos
nical analytical art coincided roughly with
jurisprudence by law. Until philosophy
9 See note 3 supra .

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1962] Notes on the Teaching of Jurisprudence 9

outlook (if ever it does), not much is to be expected from

community.

B. Science

If it is true that only the older philosophies have any present value for
law, only the very newest in science is supposed to be of any use to any-
one. This situation by which the new is displaced by the newer, and
that, in turn, by the newest is not unknown to law. Executive action is
often on a day-to-day basis. The great bulk of legislation is ephemeral.
And even judicial law changes materially within a generation. Still,
law has a continuous history, and its received ideals and traditional modes
are age-old. Aristotle's remarks on government, morality, and law have
present-day cogency. Compare this with Aristotelian botany or meterol-
ogy in applied science or the physics and metaphysics in scientific theory.
This means that one who would attempt to utilize for law the vast engine
that runs the modern world - namely, physical science - must immerse
himself in two highly technical disciplines, with no assurance that he
would accomplish anything worth while.

The cleavage between law and physical science is apparently complete.

This is a relatively recent state of affairs. Immanuel Kant had hoped
that the vast postulational system of the first Critique could serve not only
science, but law and morality as well. He had no reason to suppose that
the foundations of science as exemplified in the Critique of Pure Reason
could not be carried over for morality in the Critique of Practical Reason
and for law in the Metaphysical Foundations of the Theory of Law .
A century before Kant, Spinoza had used the mathematical method of
geometry as the means for a deductive system of morality, on the as-
sumption that the foundations of knowledge are alike for all branches of
learning. Leibniz, the founder of modern logic, used the methods of
logic in his jurisprudential writings. The scientific methods of Spinoza
and Leibniz were taken over directly by Wolff in his vast jurisprudential
treatise on the Law of Nature. The natural law school of jurisprudence
always had had a close affinity with natural science.10 Indeed, many
natural law theorists felt that the laws of nature must necessarily govern
man and his world alike. On the positivistic side, the founders of em-
piricism, Bacon and Locke, were masters of law and government.
Pound believes that the split became evident in Blackstone, where the
two contradictory notions that law exists by nature and that law is by
arbitrary will of a sovereign lie side by side. Of course, the theory that

io F.S.C. Northrup recreates this connection in a modern setting in Ethical Rela-

tivism in the Light of Recent Legal Science , 52 J.Phil. 649 (1955). See also F.S.C.
Northrup, Ideological Differences and World Order (1949).

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10 Journal of Legal Education [Vol. 15

law exists by convention, fiat, or will goes

But the eighteenth century witnessed the ren
law is command. The doctrine was used to ju
by all forms of government, whether reaction
cratic or totalitarian. Needless to say, this m
than lessened in the twentieth century. Its
from science, because science still purports to
laws of nature, not those of fiat or conventio
Nineteenth-century natural science and n
American) law were, therefore, in direct an
Yet, there were exceptions. The introductio
the American law school curriculum was th
tion of the methods of empirical science t
the founders of philosophical pragmatism i
Green and the judge Oliver Wendell Holmes
of law as a system of prediction has always ha
of the natural sciences. But these manifest
Of more immediate consequence was the i
of sociology in the middle of the nineteenth
a proposed program to apply scientific metho
ter over which law had long exercised a quasi-
ly, the behavior of human beings in groups
quential invasion of legal preserves. Not th
to offer direct competition to the law as a me
avowed aim was scientific investigation. Bu
hostility to sociology, and Roscoe Pound fo
when he tried to introduce the methods of so
cused by the American Bar Association of
If sociology had attempted to set up a compe
trol, the antagonism of the legal community
a matter of fact, however, the efforts of soc
tists generally to establish themselves on the m
precluded any such possibility. Sociology, appa
back from all areas under social control by law
profitable area of the criminal law. The ne
between social science and law has remained veiled. Each views the
other with outward calm, but the antagonism is deep and mutual suspicion
is easily aroused. Pound's proposal for a marriage between law and
social science is at least fifty years old. The brief get-together of social
science and law that blossomed in the wake of the neorealistic movement
in jurisprudence is not much more than a memory. And yet, law con-
stantly gives birth to the resolve to assimilate social science. The law

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1962] Notes on the Teaching of Jurisprudence 11

is like a reluctant bridegroom that again and again forces himse

overtures to the prospective bride, only to find that the girl ne
any intention of taking him seriously. Actually, there is abu
dence that a shot-gun wedding is now being celebrated, and we c
numerous progeny in due course.
Law constitutes a threat to the hard- won academic status of social
science. Social scientists seem to sense that in entering into close rela-
tions with law, they are actually jeopardizing their still somewhat tenuous
claim to being scientists in search of truth. Law threatens to reduce
social science to the status of a service agency. The relations between
academic social scientists and their brethren in the applied fields of opinion
research, marketing research, advertising, government, and industry is
still in precarious balance. Proposals from the legal community to join
hands consequently meet with utmost reserve.
These circumstances make the teaching of the relation between law
and social science in a course in jurisprudence an unusually complex
matter. It is easy enough to go as far as Sociological Jurisprudence and
neorealism did in formulating programs that call for combined effort with
social science. But when the question of actually implementing these
ambitious programs with work that entails co-operative effort from both
groups arises, enthusiasm cools, and the difficulties of interdisciplinary
research obtrude. Finally, it becomes necessary to report that actual ac-
complishment is minimal. This does not mean that sociological and
neorealistic schools of jurisprudence have not had an immense effect in
reorganizing the law curriculum and in reforming law - at least deci-
sional law. But it does mean that law and social science are really not
yet much nearer together than they were half a century ago and that
since social science has failed us and natural science has moved almost
completely out of our orbit, we in law are virtually "scienceless."
Nor is much to be hoped for in the development of an autonomous
"science of law." Whatever else it may be responsible for, there is no
doubt that sociological jurisprudence delivered the coup de grace to
analytical jurisprudence. The fact that social science failed to fill up
this gap is merely an added misfortune.
Despite this rather grim picture of the relation of law to science, there
is much work left for those of us who are prepared to acquire a working
knowledge of a number of scientific techniques. I shall list and comment
upon a few of these.
1. Polling techniques
Business, the military, civil government, and politics are deeply en-
meshed in opinion polling. The law cannot hold off much longer. Here,

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 12 Journal of Legal Education [Vol. 15

the quick avenue of approach is not throug

tists whose methods are slow and antiquated,
pollsters, market-research specialists, "oper
like.

2. Industrial management
Personnel work in labor-management relations and combined lawyer-
boss activities may be more widely studied.

3. Game theory
Business and military are briskly engaged in game theory. These
games usually leave the lawyer out as no longer to be reckoned with as a
top-management adviser. And yet, it is obvious that the lawyer should
be counted in, because the legal elements of the business structure still
demand his presence. But since the games are usually set up by mathe-
matically-minded technicians whose normal consorts are engineers and
"scientists/' the business managers are expected to take advice only from
technicians trained in the gathering of quantitative data. Actually, there
is no reason why the lawman should not be dealt a hand in the game, since
to exclude him is to move these highly abstract games one notch further
from reality. Still, the games are going on without the lawyers, even
though it is occasionally recognized that some of the games involve what
are essentially legal decisions.11

4. Decision theory 12
There exists a large and growing body of theory on the making of
decisions that virtually ignores the part that decision plays in the legal
process. Decision-theory people are skilled in game theory and computer
analysis, in mathematical statistics, in mathematical economics, cybernet-
ics, econometrics, psychometrics, sociometrics, but not "jurimetrics." 13
These people often begin with an interest in "pure research", but many

il Shubik, A Game Theorist Looks at the Antitrust Laws and the Automobile In-
dustry, 8 Stan.L.Rev. 594 (1956).
12 A quick way into this literature is through a few survey articles. See e. g.,
Simon, Theories of Decision Making in Economics and Behavioral Science , 49 Am.
Econ.Rev. 253 (1959); Wagner Advances in Game Theory: A Review Article , 48
Am.Econ.Rev. 368 (1958). A quick scanning of the periodicals called Administrative
Science Quarterly and Behavioral Science will reveal numerous articles in a form
accessible to law-trained readers.
13 Despite Judge Lee Loevinger's pioneering work in the subject. See Loevinger,
Jurimetrics - The Next Step Forward , 33 Minn.L.Revi. 455 (1949). Judge Loevinger's
later work appears in Modern Uses of Logic in Law. Nevertheless, interest in the
subject of electronics and law has been growing enormously in recent months. Since
this article was submitted for publication, there have been significant developments.
See, e.g., Johnson, Jurimetrics and the Association of American Law Schools , 14
J.Legal Ed. 385 (19.62) ; agenda of the National Law and Electronics Conference,
Lake Arrowhead, Cal., May 27-29, 1962, sponsored by System Development Corp. and
the Law School of the University of California at Los Angeles.

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1962] Notes on the Teaching of Jurisprudence 13

get practical-minded and tend to move into the area of bus

military policymaking.

On the practical level, decision theory merges with opera

search 14 and management science.15 I have watched these m
with interest for the past fifteen years and have seen operation
grow from a war-born emergency that compelled scientific colla
in England to a large and growing "profession" in this countr

On the theoretical level, decision theorists are working in w

should prove interesting to us as legal decision theorists. The
methodology is, of course, quite different from ours. Howe
is a gross analogy between the two processes that more lawy
study. Just as the lawyer chops up the raw materials of socia
real or potential, into pieces that fit into his law machine and g
decisions that impose themselves on social reality, so the oper
searcher, the decision theorist, the game theorist feed the ra
economic life into their models and machines and turn out decisions that
impose themselves on business and government. But whereas the law
is a behavioral pattern of professional activity based on age-old precepts,
received ideals, and traditional modes of dispute settlement, of alloca-
tion of resources, and of constraints governing social action, the economic
decision theorist's patterns are based on scientific and mathematical
models, on data-gathering, and on the use of computers. Law's ruling
guide to decision-making is morality; the so-called decision theorist's
guide is science.16 Law uses the force of politically organized society
to put its theory into practice ; the others use the force of modern science
to constrain choice in business and government.
This means that the lawyer who would understand the newer methods
of decision-making must study the fundamental techniques of the newer
decision theorists. I believe that it will do little good to read the available
popular accounts of the work of decision and game theorists and of op-
erations researchers. Such popular accounts carefully erase the real
foundations of the disciplines they endeavor to popularize. I think that a
law-trained person who wishes to become acquainted with decision theory
would profit most by a preliminary investigation of the basic techniques
of decision model-building rather than by first trying to understand actual

14 See section on operations research infra .

is See Management Science, journal of the Institute of Management School of
Business Administration, University of California at Berkeley.
16 But decision theorists are becoming increasingly aware of the importance of
problems of value, and to this extent, their work is of consequence to law. See
Charles W. Churchman, Decision and Value Theory (Working Paper No. 9,
Institute of Industrial Relations, University of California at Berkeley 1959). This
paper contains a valuable bibliography on the problem of value in decision theory.

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14 Journal of Legal Education [Vol. 15

practice, however simplified. The basic com

the following :
a. Symbolic logic.16 Any recent simplified text that has an ac-
count of the elements of symbolic logic, that begins at the beginning,
and that contains plenty of simple exercises, will do. It is a good
idea to get a recent text, because the symbolism, after fluctuating
around quite a bit, is now settling down somewhat. Plow ahead as
systematically as possible, and when forced to stop, turn to the next
item, to wit :

b. S et theory. This is really an application of the basic principles

of symbolic logic to the elements of mathematics 19 - i. e., addition,
subtraction, multiplication, division, functionality. This is the way
high school students are now beginning their mathematics courses.
It is equally useful for oldsters. If one has really ground out a fair
amount of the logic text, set theory will be simple - so far as we
care to go. When the going gets altogether too rough turn to :
c. Probability theory. This is the old game of odds made sys-
tematic. Follow the text through the binomial theorem, and practice
the exercises. Then learn the easy applications of calculus that
probability uses. A very simple understanding of the calculus that
the elementary texts provide will do.

d. Graphs. Here we pass the borderline between theory and

practice. Graphs substitute a picture for a formula. They enable
these people to talk and are as indispensable a part of the mystique
as a blackboard and chalk.

e. Model-building. This is the way these people prepare their

jobs. The model combines a lot of unexpressed general scientific
assumptions and generally understood ways of doing things, with
more or less carefully worked out hypotheses and loose indications
of the way the model-builder proposes to go about testing them.
Many things go without saying, such as the logic of the thing, its
17 A practicing attorney in California undertook a similar do-it-yourself venture
as a preparation for the subject of electronics and the law. Lawlor, Bibliography ,
Introduction of Symbolic Logic to Lawyers , 1959 M.U.L.L. 47.
i» Certain persons on the law side are concerned with the uses of symbolic logic
as related to law. The magazine Modern Uses of Logic in Law is devoted to this
interest. The magazine is described as a quarterly newsletter of the Electronic
Data Retrieval Committee of the American Bar Association. Judge Loevinger, of
Minnesota, has long been interested in scientific and logical analogues to law, Pro-
fessor Layman Allen, of the Yale Law School, is devoting considerable time to the
subject, and a recent meeting at UCLA Law School under the leadership of Pro-
fessor Edgar A. Jones, Jr., got out quite a considerable gathering to discuss the
subject of electronics and the Law.
i# John G. Kemeny, J. Laurie Snell & Gerald L. Thompson, Introduction to
Finite Mathematics (1957) is an elementary text that might be tried.

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1962] Notes on the Teaching of Jurisprudence 15

statistical character, and other fundamental methodolog

positions. The practitioners, as might be expected, c
the practical problems that their own specialties bequea
spend most of their time and energy on getting the
ground. In the elementary texts on decision theory
models are usually presented ; but these merely conceal t
for one whose real interest is not to become profici
building, but in finding out the basic foundations of th
how it differs from other forms of scholarly research,
Hence, the admonition to begin with symbolic logic, set
probability.
f. Game theory. Game theory may be divided into
and game practice, but the whole business is so theoreti
practice is only an exemplification of theory. The
exemplify simple theory, and the complex games exemp
theory. Still, the theory is becoming formidable and m
into formidable practice at any time. In outline, gam
application of the techniques mentioned above to more
fully defined conflict situations, with predetermined r
solving the conflicts. The whole is governed by prin
tionality (maxima or minima of this or that) agree
vance of the game. The playing of the game consists in
set of presuppositions to some sequence of events r
simulate natural happenings. The processing of these ev
the constraints imposed by the rules. The games can
hand, of course, but nowadays the main object is to g
computers that are designed to draw inferences acco
above-mentioned rules.

g. Operations research .20 This is an alternative way to approach

decision theory that may be more congenial to law-trained people
than game theory. Operations research is more empirical and,
therefore, more closely attached to actual business practice and much
more interested in results. It conceives that its main function is to
supply the executive or decision-maker with quantitative information
to aid decision. In practice, it quickly becomes obvious that the very
attempt to obtain quantitative information involves the operations
researcher in policy choices.21 More than this, executives do not
want mere quantitative data expressed in probability terms. They
want recommendations on how to act. Hence, policy decisions be-

so For a basic text, try Charles W. Churchman, Russell L. Ackoff & E. Leonard
Arnoff, Introduction to Operations Research, (1957).
21 Charles W. Churchman, Decision and Value Theory (Working Paper No.
9, Institute of Industrial Relations, University of California at Berkeley 1959).
15 Journal of Legal Ed. No.l - 2

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16 Journal of Legal Education [Vol. 15

come the real test of the operations researc

point, his function begins to look somethin
One may now ask what in the world any o
has to do with the law. The answer is : no
already been mentioned, decision theorists
exist.22 Certainly, their games have little app
ly complex as the behavior patterns of thos
or making legal decisions. For one thing, la
sible to make a rational hierarchy of preferen
open to them in the legal process. We cann
machine on how to choose between legal alt
machine's rationality (its logic) is not the l
often announce proudly that the law's meth
In spite of this, we may be led to admire
capacities and to wonder how we can use t
logical inferences instantaneously and with
does not like their decisions, he must change
Another powerful aspect of the computers
substitution of quantitative probability me
erences. This is either good or bad, dependi
it has immense bureaucratic appeal and su
for slow and variable hand-tailored decision
in all routine decision-making is apt to pro
ment scientists say that they are now ready t
ment. When will they reach the lawyers ?
day for them if they do. It would not be t
profession has chewed up a rational proces
spat out the pieces.

5. Anthropology
It is rather surprising that we have done
rather inviting body of lore amassed by th
I can tell, only good-will exists between th
anthropologists work well together, according
I have been able to get of the occasional col
the American legal community were not so di
- or rather, if in addition to our practicality,
for disinterested research - there would be m
disciplines. As matters now stand, I suspect
anthropologist feels ready to go over more fu
contemporary civilized cultures, notably th

22 Political scientists excepted. See note 2 supra.

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1962] Notes on the Teaching of Jurisprudence 17

the. American legal community will be strongly tempted to

collaboration. Nevertheless, a course in Jurisprudence, with
tive aftermath of work in the field, might very well be built up
tion of current anthropological theory and practice.

6. Economics

It is really altogether remarkable that so many people can make a

at the curious mixture of folklore and tautology that goes under
name of economic theory. I do not include the very necessary re
making and statistics-gathering that enable business and governm
to keep account of their activities; nor the clerical function of p
around information on inventories, production, wages, rent, etc.
as occupy countless services, like that performed by the department
commerce. I have reference to the body of theory or higher lea
that is supposed to constitute the "science" of economics. Lacki
possibility of verification, the constructs of this discipline cannot se
as live hypotheses to be confirmed or refuted, but remain mere defin
or axiomatic models that operate in a purely abstract or transcen
realm. Economics has never developed an experimental or ev
empirical testing technique. Its speculative aspects are still rationa
The founders of statistics had great hopes that statistical method wo
enable economics to mature, to become a science. But while mathema
statistics has burgeoned in the present century, mathematical econom
has remained a curiosity. There is presently a revival of interest
possibility that mathematical economics may acquire the long-so
bridge to reality through game theory, the founders of which w
mathematician and a mathematical economist.23 But at present, t
merely a hope, since game theory is still not applicable to any b
simplest kind of real-life decisions.

I do not see what law has to gain from economic theory at pre
although the information that the data-gatherers collect is often rel
for legal determinations. In the field of trade regulation, the ruling
ception seems to be the legal notion of fairness rather than any der
from fundamental economic theory. Here, again, economic data is
for the lawyer's mill. In antitrust law, the fundamental concep
of monopoly and competition are bound to be devoid of scientifi
erence. It is never possible to tell in a real-life situation the exte
which monopoly or competition actually exists. The two terms,
are supposed to be polar opposites, are not susceptible of being u
any way that permits empirical verification. Consequently, in ant

23 John Von Neumann & Oskar Morgenstern, The Theory of Games and Eco-
nomic Behavior (1944).

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 18 Journal of Legal Education [Vol. 15

law, "competition" and "monopoly" are lega

chance resemblance to their counterparts in
relevance of the legal conceptions of "com
actual business practice seems to be strictly co
7. Biology
It is a strange anomaly that biology, the s
so little in common with law. In order to atta
spective, it was apparently necessary for biolo
cosmological hierarchy of living beings that r
antiquity until the nineteenth century. It
repudiate the view that man stood at the ap
of life, itself fixed in a material universe crea
time in the not very remote past. That view
evolution among the various species of livin
ligions, with their doctrine of metempsychos
analogue, for according to this doctrine, any
become any other on rebirth. But the princip
this system was a religious doctrine that calle
ing of the inner spiritual life of man. Thi
fundamental of all scientific principles of We
progress consists exclusively of developmen
development of outer life is due to changes
ment.

The zenith of this materialistic and mechanistic principle was reached

in the Western world in the nineteenth century. Biology became a science
by ordering the development of life in accordance with a mechanistic
principle: chance mutations in the organism are confronted with en-
vironmental conditions that determine their chances for survival. The
principle put biology in the same camp with the physical sciences and
assured its rapid development along mechanistic lines. Added to the
principle of evolution on the basis of "natural selection" was the related
principle of Western science that only external, public, verifiable ob-
servations on the behavior of objects is worthy of the name of science.
This means that all attempts to study living objects as themselves the
source and origin not only of their own organic development (Lamarck-
ism), but also of the evolution of moral conscience or of legal obligation
would have to be banished to the realm of the nonscientific - that is to
say, to the humanistic studies. Biology went the way of physics. The
method was the same, though the subject matter of investigation in the
case of biology was a special subgroup of physical objects.
We must remember that law had been under tremendous pressure to
become a science ever since the beginning of the Renaissance. For the

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1962] Notes on the Teaching of Jurisprudence 19

English legal system, Lord Bacon was the prototype of the man of
Bacon's program would externalize law by withdrawing it from
legiances to religion and "inner" morality and confining it to the s
of external human behavior. Empiricism is still the foundation of W
ern science, and Bacon's empiricism helped break the hold of "n
law" on English jurisprudence. Locke's immense influence was
same effect. On the Continent, Kanťs separation of law and m
also led to the same result. When Kant distinguished law as co
only external behavior, he laid, as he thought, the basis for a s
of law analogous to that for physical nature.
Thus, law entered the nineteenth century facing a painful dil
The tap root that connected law with antiquity, and through th
with the supposed beginnings of the race - namely, the natural law
tion - had been cut through. Jurisprudence longed to re-establ
vital connection but could not. On the other hand, it could not
complete secularization by casting its lot in with physical science. C
acteristically, since it could accept consolation neither from natu
nor from physical science, Anglo-American law turned inward.
legal theory began to develop as a science of itself. It proc
(through Austin) that jurisprudence is a self-investigating scien
closed boundaries.

Nineteenth-century jurisprudence was a battleground of the two major

cultural movements striving to win law to its side. One side was, of
course, the natural law tradition, with religion, morality, and psychology
(not yet a "science"). The other was the physical sciences, which had
just won over biology and sociology. We may say that English juris-
prudence lived out the storm by taking refuge in its own subcellars.
Bentham struck heavy blows in the name of science, or rather, scientific
morality. English law radically reformed its procedure, but English
jurisprudence scarcely noticed the change. Biological evolution was an
English production; its effect on English contemporary jurisprudence
was nil.

On the Continent, positivism began to strike at the laggard behavioral

sciences in attempting to hasten their conversion to the rigors of physical
science. Positivism's major triumph was the creation of a "scientific"
sociology. By aiming at society itself as the next entity to be "scientif-
icated," positivism struck a blow at law on the Continent that was much
more telling than any effect that the scientification of biology in England
could have on the common law.
We know also that the efforts to make sociology a science did not suc-
ceed nearly as well as those directed at biology. Nineteenth-century Eng-
land was devastatingly successful at everything it put its mind to, and so

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20 Journal of Legal Education [Vol. 15

scientific biology took the scientific world by

of sociology as a science kept it that much ne
of the movement on the Continent to mak
of it) into a science was to raise the level of le
at which law could examine itself in relation to other modes of social
control.

Law recognized that it existed for a purpose, that the purpose was
human, and that law could and must change with changes in the purposes
humanity desired to further through law. These speculations were
systematized in Germany and imported into America as sociological
jurisprudence. They represented the great compromise, which American
jurisprudence accepted long before England, between the natural law
tradition that represented the "inner life" or conscience of the law and
the scientific tradition whose chief aim in the Western world has always
been to manipulate outer reality. Sociological jurisprudence, paradox-
ically, forced jurisprudence to develop a secular conscience - namely, the
purpose of law and its subordination to larger social ends. At the same
time, it gave law an external orientation as well. This was a proto-
scientific program - namely, to investigate external social purposes and
the operation of law in an external social environment. The whole en-
abled law to aspire to certain of the trappings of a science, even less
substantial, to be sure, than those worn so precariously by sociology.
Where does this leave us with the question of the relation of biology
and law ? It leads, I believe, to a consideration of sociological biology -
if any such thing exists - in order to find a link between biology and
law. This link does, indeed, exist. It is called ecology, the study of the
interrelation of living beings among themselves and with their environ-
ment. Ecology is the bad conscience of biology, the penance it pays for
throwing so much of its vital energy into the study of the effects of ex-
ternal stimuli on living beings conceived of on the analogy of physical
objects. Changing the metaphor, ecology is the counterweight to bio-
physics. As more and more mathematical and physical rigor invades
biology proper, it may be supposed that more and more weight will be
given to ecology, the open-ended, rigor-less, diffuse, variegated collection
of immense quantities of biological data linked together with only the
vaguest conceivable generalizations of a protoscientific sort about "en-
vironment."

At any rate, the ecologists study living populations in their environ-

ments. They are pressed to ask what living populations are doing to
themselves, to one another, and to their surroundings. Thus, they are
forcing the problem of teleology back into biology. This is objective
teleology, but so is legal teleology "objective," that is observable, as-

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1962] Notes on the Teaching of Jurisprudence 21

signable, group rather than individually determined. I am not

ecology is ready for jurisprudence, but I am quite sure that jur
is ready for ecology. We ought to want to know how the
animal populations govern themselves; how, in addition to
as a stimulus to the environment, they also make the environm
to meet their purposes. This sounds a little bit like law to me,
of the countless myriads of nonhuman "peoples," the living br
humanity.

8. Social psychology
It would seem in principle that social psychology, the study of the re-
lation of the individual to the group and of the group to the individual,
is made for law. Group phenomena, not specially as the sociologist sees
them, but in the form of associative conduct of individual human beings
as the social psychologist sees it, ought obviously to have a direct legal
reference. Why has this not happened? In answer, one can only say
that sad as it may be for the lawyer, social psychology does not as yet
exist. There literally is no substantial body of learning on the mutual
interactions of individuals and groups. I believe the reason for this
state of affairs rests on the fact that no usable body of psychological
knowledge exists that social psychology can use. This leads me to the
next heading.

9. Psychology
Academic psychology is almost totally irrelevant for law. This is
also a sad state of affairs and a cruel disappointment to many a student
of jurisprudence who had hoped that the new science of psychology would
revolutionize law. It has not happened.
The twentieth century is clearly the century of psychology, and yet
law has not shared in this movement. Toward the end of the last century,
it became clear that psychology was splitting into two camps - experi-
mentalists and clinicians - and as is the case in so much of the behavioral
disciplines, the issue was scientific rigor. Experimental psychology re-
gressed to the biological sciences, took physiology and biology as its
models, and drew closer and closer to the natural sciences in an endeavor
to maintain scientific rigor and academic status. The clinic, on the other
hand, attempting to put into practice the lore of the experimental psychol-
ogists, found itself engrossed more and more with the patient as an in-
dividual and, accepting the ideal of the healing arts that the patient is to
be cured even if theory has to be ditched, found itself in increasing es-
trangement from the experimentalists and their natural associates, the
theoreticians. The result is that clinic practice is being ousted from
academia, the clinics are being banished to the professional schools, and

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22 Journal of Legal Education [Vol. 15-

the experimentalists are becoming more mat

more decision-theory minded. The following is
I believe that experimental psychologists are
biologists in scientific rigor and are approachin
who are their natural affinities.

Again, it is apparent that law need expect nothing much from experi-
mental psychology at present, nor from the clinicians, who in the main
have gone over to our mortal enemies, the medicinemen. What then?
Is psychology to be given up by law? I think not. Our hope lies not in
what Americans call psychology but in what many Europeans call psychol-
ogy - namely, psychoanalysis and its derivitives.

10. Psychoanalysis
It is truly amazing how impervious law appears to be to the widespread
influence of what I shall here call "psychoanalysis/' 24 This at least
is one characteristic that law shares with exact science: neither seems
to feel called on to take account of the subject matter of psychoanalysis -
namely, the unconscious mind nor of the methods of this new "science"
- that is, dialectics. Logic, mathematics, physics, chemistry, and most of
biology cling to the older view that excludes mind and society as not being
integral parts of their science - and thus a fortiori excludes unconscious
mind and its effect on human society. On the other hand, psychology
(nonexperimental), anthropology, sociology, theology, literature, and
the technical arts of medicine, social work, and many others are heavily
infiltrated with psychoanalytic theory and practice. 25 But not law - ex-
cept in the restricted field of criminal administration, itself virtually a
branch of social work. Popular interest in psychoanalysis is, of course,
enormous. If we include psychiatry with psychoanalysis, we arrive at
a combined practice that treats the most popular congeries of diseases of
the twentieth century - namely, mental illness.
How has law managed to stay relatively so immune from psycho-
analytical "infection?" This is an altogether fascinating speculative
question. I, for one, have not the faintest idea that a definitive answer
is presently available. Yet, guesses at an answer could be made. Psy-
choanalysis arose in response to certain profound inadequacies in the
24 For most Americans, this means Freud and Freudianism. The other analyti-
cal schools, including the system of O. G. Jung, which is so influential in England
and on the Continent, are treated as "deviations" from orthodox Freudianism.
American preoccupation with sex and with scientific materialism is not the sole
answer to our refusal to examine alternative analytical systems. We prefer to
fight either for or against Freud. I suppose that in due course, it will come about
that instead of building up antagonism to the Freudian analytical system because
of its obvious inadequacies, we may begin considering the virtues of alternative
systems of analytical psychology.
25 in this country, almost exclusively Freudian.

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1962] Notes on the Teaching of Jurisprudence 23
medical treatment of nervous and mental disorders. It has never lost
its close allegiance to medicine as a professional practice. Law and
medicine are now, as they have been for centuries, extremely hostile to
«ach other. Ergo, psychoanalysis, as a supposed branch of medicine, is
included in law's hostility to medicine. The analyst, usually also a
physician, does nothing to counteract this state of antagonism. Profes-
sional pride is at stake on both sides. Each finds enough to do without
bothering with those pointedly disinterested in its activities. But what
of the vast interest in psychoanalysis displayed by many nonmedical
specialties and by the generality of the population ? It is safe to say that
all groups professionally concerned with human behavior (except law-
yers) are keenly aware of the relevance of psychoanalysis for their work.
How account for the fact that law studiously looks the other way when
the subject of psychoanalysis comes up?

I do not know the answers to any of these questions, but for the past
several years, I have been accustomed to start the course in Jurisprudence
with a two weeks' intensive survey of psychoanalytical theories and then
to move into a five weeks' course in the history of modern philosophy.
Lately, I have had to fight the class to keep psychoanalysis within a three
weeks' span and to stretch philosophy out as long as four weeks. There
is never any question of the intense interest that the students have in
psychoanalysis. The trouble is to pinch it off after a tantalizing introduc-
tion.

I confine myself in class to a simple outline of the systems of the Big

Four, all of whose basic writings are available in English. I start natural-
ly with Freud and sketch out the system for three class periods (one
week). Meanwhile, the students select their own reading. In the course
of outlining Freud's system, I get the class to offer legal analogies and
applications. The obvious relevance to criminal law is noted and passed
by. Then trial practice, including the law of evidence, comes up. I note
my own incompetence to deal with the subjects and pass on. Then comes
family law. It is necessary to stay here a while. The analogies are too
important to let go by.

Somebody always wants to psychoanalyze judges. I have to check

that tendency because of time. I myself, introduce the topic of negligence
as unconscious intention, but do not come off too well with it. I then
spend a little time rubbing in the point that the law and the legal com-
munity are almost wholly masculine in orientation and ask what Freud's
theories of sexuality do for us in this connection. I usually end by bring-
ing up jurisprudence through Jerome N. Frank, Law and the Modern
Mind (1930), itself a psychoanalytical document, and branch out from

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24 Journal of Legal Education [Vol. 15

there a little by suggesting that the whole

to Freud than is usually admitted.
We then turn to the second member of the
in reaction to Freudian preoccupation wit
power, of organ inferiority, inferiority com
overcompensation, and the cure for all of
are introduced, certain members of the class
Freudian sexuality begin to breathe again
to be won over to Adlerian "power" no
prestige fights blossom, and people get dispo
omnium contra omnes. Sex becomes nothin
the sexes. There is surprisingly little in A
at first sight (therapy excluded). For Adl
analytical framework to sketch out what we
old familiar sinful human nature. The Devil and all his works are tricked
out in a new setting. The "seven deadly sins" are seen as wicked drives
for individual power. Pride, covetousness, lust, anger, gluttony, envy,
and sloth are individual complexes to be resolved in efforts at altruistic
sociality. The cure for power complexes is sacrifice for the good of
humanity by immersing oneself in the full stream of the race. The rele-
vance of this system for law is too apparent to need highlighting.
After Adler comes a hypothetical psychoanalytic "case." I suppose
a situation in which a father lives together with an only daughter after
the mother has died. Money is hard to come by and the struggle to get
along takes up all the energies of both. Finally, things ease a bit and
daughter grows up. Both want to continue the old ménage, Father in-
terested in saving money. Quite a tidy sum is accumulated. Then the
villain enters the piece in the form of a handsome rascal. Daughter
falls inconsolably in love and breaks the news to Father. Father sees
through the machinations of the rascal, and there ensues a long and
acrimonious quarrel that Father apparently wins. Driven to distraction,
Daughter plots with Rascal to murder the old man. Almost as an after-
thought, they steal the money. They then set out for Honeymoon Lane.
Rascal soon disappears with the bag of money leaving Daughter to face
the consequences.
This case looks like a push-over for the Freudians: incest, sadism-
masochism, wish-fulfillment, anal-eroticism, death wish, and so on. But
after the Freudians have their say, came the Adlerians. Have we any-
thing here but power fights, with the parties using sex, money, larceny,
murder, anything in order to prevail? Must Father and Daughter be
said to be in "love," or is it not rather the case that a life-and-death strug-
gle was going on all the while, with the villain merely a fortuitous, though

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1962] Notes on the Teaching of Jurisprudence 25

ever-present, agent of the power drives? Apparently th

equally well a Freudian and an Adlerian interpretation
introduce Carl Gustav Jung (who first publicized the
some people lean toward a Freudian and others toward a
terpretation, we suspect that it is not the case that determ
come, but the psychological character of the participants. P
gests Jung, there are constitutional pyschic differences
Maybe some people are oriented toward outward circum
while for others, the inner psychic reality is dominant (Ad
I spend most of the rest of the time allotted to psych
exposition of the Jungian system - from personal preferen
Then, at the last hour of this section of the course, I introd
the peculiar genius whose life was spent in studying the rela
sis to art. I find time to mourn that legal aesthetics wh
powerful branch of jurisprudence, is only a name. I the
short course in the history of modern philosophy, with re
influence of psychoanalysis on philosophical theories.
This section on psychoanalysis ends as it began: th
reason why law and psychoanalysis should not get tog
courage is required, since, of course, it is no light matter f
with what is taken by many to be a branch of medica
analysis is too important to leave to the medicos. It ha
for all of us that far transcend medical practice. Hence, we
risk. In the analytical psychology of C. G. Jung, we wil
that the dangers are decidedly minimized, since this system
a system of education.

Conclusion

It begins to look as though the job that the law schools have
outstandingly well - that is, the production of learned judges - wi
to be considerably expanded in the future. It is not an accide
legislation is such a slipshod practice in this country and that
ministration or execution of the law is, in the hands of laymen
totally devoid of any conception of what the legal craft of admini
could be like. Nine centuries of continuous development of the
judicial decision has produced a highly disciplined set of craftsm
judges, whose competence in dealing with complex human relat
can be matched only by the clergy of the long-established relig
is time, therefore, is it not, to devote attention to the shortcoming
other two branches of legal enterprise, the legislative and the adm
tive, particularly since these are the branches that today carry the
load of law work?

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26 Journal of Legal Education [Vol. 15

Readjustments could begin with a greater emph

tial theories in the separate law courses and
precisely jurisprudential theory that has alw
portance of general legal conceptions. Only th
of the nineteenth century took the pronouncem
very essence of law. Contrary jurisprudential
notion throughout its entire history, and toda
trines, including the analytical, give full scope t
legislation and administration as integral part
is my hope that these notes may be useful in aid
law curriculum that takes more adequate accou
tion of the legal process.

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