The legal academy has never waivered in its devotion to the idea that “law” is something that can be the proper subject of theory- understood and explained and from that understanding, justified or found wanting. The parallel assumption has been that law, once unpackaged, could become the instrument by which we might socially engineer a better world.
From Langdell’s laboratory of law, through Llewyllyn’s longing embrace of The Cheyenne Way, the Process school of the mid-20th century, the neo-Marxist Crits masquerading as nihilists, rumbling all the way through Posner’s arrogant version of microeconomics turned on law right up to the contemporary turn to evolutionary biology, different methods but the same Holy Grail. (Even the academy’s infatuation with “law and literature” was a project that assumed we could someday unlock the riddle of legal interpretation. In that sense it too was “theoretical.”)
A few lonely souls never dreamed that dream. Holmes possessed a “savage nihilism” regarding human affairs and had no time for the notion that we might redeem ourselves through law. Grant Gilmore carried on the Holmes legacy, authoring caustic essays on what he saw as the fantasy of the very idea of legal theory.
We will read representative works of both the scientists of law and the nihilists. The ideas they grappled with are fascinating, but also useful. After all, the study of jurisprudence is the study ultimately of the practicing lawyer’s terrain.