Wednesday, May 4, 2011

More on Legal Realism: Schauer Edits Llewellyn

The University of Chicago Press has released The Theory of Rules by Karl Llewellyn, a previously unpublished manuscript, edited by Frederick Schauer (Virginia--Law). When Schauer unearthed Llewellyn's unfinished manuscript, it "consisted of eight completed chapters and brief notes describing three more that were never written." Schauer "wrote an extensive introduction and numerous footnotes to shed light on Llewellyn’s goals, make connections with other work by Llewellyn and by other realists, and try to explain some of Llewellyn’s more dense prose." Schauer explained that "Most of the editing decisions were about how to explain what Llewellyn was trying to say while still, for historical reasons, allowing the reader see in full Llewellyn’s own particularly flamboyant, idiosyncratic and often weird and unclear language.” For more about Schauer's discovery of the manuscript, see the story at this link.

Here is the publisher's description of the book.

Karl N. Llewellyn was one of the founders and major figures of legal realism, and his many keen insights have a central place in American law and legal understanding. Key to Llewellyn’s thinking was his conception of rules, put forward in his numerous writings and most famously in his often mischaracterized declaration that they are “pretty playthings.” Previously unpublished, The Theory of Rules is the most cogent presentation of his profound and insightful thinking about the life of rules.

This book frames the development of Llewellyn’s thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law’s larger purpose rather than merely following the letter of a particular rule. Edited, annotated, and with an extensive analytic introduction by leading contemporary legal scholar Frederick Schauer, this rediscovered work contains material not found elsewhere in Llewellyn’s writings and will prove a valuable contribution to the existing literature on legal realism.

Here is one of the blurbs:

“Important on several levels—biographical, historical, and jurisprudential—Karl N. Llewellyn’s The Theory of Rules will immediately claim a place in the corpus of American legal theory. Llewellyn’s prose here is less precious and idiosyncratic than in many of his other writings, and the remaining mysteries are dispelled by Frederick Schauer’s marvelously lucid introduction and detailed notes. As to several of the core problems of legal theory—the nature of rules, the differences between rules and standards, the roles of literalism and purpose in legal interpretation, the prediction theory of law—Llewellyn and Schauer have jointly produced an indispensable text.”—Adrian Vermeule, Harvard Law School