Karl N. Llewellyn
Encyclopedia
Karl Nickerson Llewellyn (May 22, 1893 – February 13, 1962) was a prominent American jurisprudential scholar associated with the school of legal realism
. The Journal of Legal Studies
has identified Llewellyn as one of the twenty most cited American legal scholars of the 20th century.
. He attended Yale College
and Yale Law School
, where he served as editor-in-chief of the Yale Law Journal
.
Llewellyn was studying abroad at the Sorbonne
in Paris when World War I
broke out in 1914. He was sympathetic to the German cause and traveled to Germany in an attempt to enlist in the German army, only to be rejected because of his refusal to renounce his American citizenship. Nevertheless, Llewellyn was allowed to fight with the 78th Prussian Infantry Regiment, and was injured at the First Battle of Ypres
. For his actions, he was promoted to sergeant and decorated with the Iron Cross
, 2nd class. After spending ten weeks in a German hospital at Nürtingen
, and having his petition to enlist without swearing allegiance to Germany turned down, Llewellyn returned to the United States and his studies at Yale in March 1915. Amazingly, after the United States entered the war, Llewellyn attempted to enlist in the US army. He was rejected due to his participation in the German army.
He joined the faculty at Columbia Law School
in 1925, where he remained until 1951, when he joined the faculty of the University of Chicago Law School
. While at Columbia, Llewellyn became one of the major legal scholars of his day, and was a major figure in the debate over legal realism
. He also served as principal drafter of the Uniform Commercial Code
(UCC). He was married to fellow law professor and UCC drafter Soia Mentschikoff
, who went on to become dean of University of Miami School of Law
.
Llewellyn died in Chicago of a heart attack on February 13, 1962.
s, sheriffs, clerks, jailers and lawyer
s), ‘[w]hat these officials do about disputes is, to my mind, the law itself.’ (Bramble Bush, p. 3). While this predictive approach to defining law of the law was criticised as incomplete by H.L.A. Hart in his book The Concept of Law
, it has had a significant impact on jurisprudence generally. Indeed, it has been contended that Hart's legal positivism is closer to the legal realist position than first appears. Hart's response to the problem of legal rules being both binding on judges and simultaneously changeable is that rules are formed relative to context and are vulnerable to being unsettled. He must then argue that rules can guide conduct because they function in the context of taken for granted assumptions, a position not far from that which he claims to eschew.
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. The Journal of Legal Studies
The Journal of Legal Studies
The Journal of Legal Studies is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions....
has identified Llewellyn as one of the twenty most cited American legal scholars of the 20th century.
Biography
He was born on May 22, 1893 in Seattle but grew up in BrooklynBrooklyn
Brooklyn is the most populous of New York City's five boroughs, with nearly 2.6 million residents, and the second-largest in area. Since 1896, Brooklyn has had the same boundaries as Kings County, which is now the most populous county in New York State and the second-most densely populated...
. He attended Yale College
Yale College
Yale College was the official name of Yale University from 1718 to 1887. The name now refers to the undergraduate part of the university. Each undergraduate student is assigned to one of 12 residential colleges.-Residential colleges:...
and Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, where he served as editor-in-chief of the Yale Law Journal
Yale Law Journal
The Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...
.
Llewellyn was studying abroad at the Sorbonne
Sorbonne
The Sorbonne is an edifice of the Latin Quarter, in Paris, France, which has been the historical house of the former University of Paris...
in Paris when World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
broke out in 1914. He was sympathetic to the German cause and traveled to Germany in an attempt to enlist in the German army, only to be rejected because of his refusal to renounce his American citizenship. Nevertheless, Llewellyn was allowed to fight with the 78th Prussian Infantry Regiment, and was injured at the First Battle of Ypres
First Battle of Ypres
The First Battle of Ypres, also called the First Battle of Flanders , was a First World War battle fought for the strategic town of Ypres in western Belgium...
. For his actions, he was promoted to sergeant and decorated with the Iron Cross
Iron Cross
The Iron Cross is a cross symbol typically in black with a white or silver outline that originated after 1219 when the Kingdom of Jerusalem granted the Teutonic Order the right to combine the Teutonic Black Cross placed above a silver Cross of Jerusalem....
, 2nd class. After spending ten weeks in a German hospital at Nürtingen
Nürtingen
Nürtingen is a town in the district of Esslingen in Baden-Württemberg in southern Germany. It is located on the river Neckar.-History:The following events occurred, by year:*1046 : First mention of Niuritingin in the document of Speyer...
, and having his petition to enlist without swearing allegiance to Germany turned down, Llewellyn returned to the United States and his studies at Yale in March 1915. Amazingly, after the United States entered the war, Llewellyn attempted to enlist in the US army. He was rejected due to his participation in the German army.
He joined the faculty at Columbia Law School
Columbia Law School
Columbia Law School, founded in 1858, is one of the oldest and most prestigious law schools in the United States. A member of the Ivy League, Columbia Law School is one of the professional graduate schools of Columbia University in New York City. It offers the J.D., LL.M., and J.S.D. degrees in...
in 1925, where he remained until 1951, when he joined the faculty of the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
. While at Columbia, Llewellyn became one of the major legal scholars of his day, and was a major figure in the debate over legal realism
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. He also served as principal drafter of the Uniform Commercial Code
Uniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...
(UCC). He was married to fellow law professor and UCC drafter Soia Mentschikoff
Soia Mentschikoff
Soia Mentschikoff was an American lawyer, law professor, and legal scholar, best known for her work in the development and drafting of the Uniform Commercial Code. She was also the first woman to teach at Harvard Law School....
, who went on to become dean of University of Miami School of Law
University of Miami School of Law
The University of Miami School of Law, founded in 1926, is the law school of the University of Miami, located in Coral Gables, Florida, in the United States. The school graduated its first class of 13 students in 1929.- Academics :...
.
Llewellyn died in Chicago of a heart attack on February 13, 1962.
Llewellyn and Legal Realism
Llewellyn and the legal realists put significantly more emphasis on the facts of a specific case than on general legal rules. Law, the realists contended, is not a deductive science. He is famous for his statement that (referring to judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, sheriffs, clerks, jailers and lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s), ‘[w]hat these officials do about disputes is, to my mind, the law itself.’ (Bramble Bush, p. 3). While this predictive approach to defining law of the law was criticised as incomplete by H.L.A. Hart in his book The Concept of Law
The Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...
, it has had a significant impact on jurisprudence generally. Indeed, it has been contended that Hart's legal positivism is closer to the legal realist position than first appears. Hart's response to the problem of legal rules being both binding on judges and simultaneously changeable is that rules are formed relative to context and are vulnerable to being unsettled. He must then argue that rules can guide conduct because they function in the context of taken for granted assumptions, a position not far from that which he claims to eschew.
Publications
- 1930: The Bramble Bush: On Our Law and Its Study (1930), written especially for first-year law students. A new edition, edited and with an introduction by Steven Sheppard, was published in 2009 by Oxford University Press.
- 1941: The Cheyenne Way (with E. Adamson Hoebel) (1941), University of Oklahoma Press.
- 1960: The Common Law Tradition-Deciding Appeals (1960), Little, Brown and Company.
- 1962: Jurisprudence: Realism in Theory and Practice (1962).
- 1989: The Case Law System in America, edited and with an introduction by Paul GewirtzPaul GewirtzPaul D. Gewirtz is the Potter Stewart Professor of Constitutional Law at Yale Law School and the Director of the China Law Center at Yale.-Biography:...
, University of Chicago PressUniversity of Chicago PressThe University of Chicago Press is the largest university press in the United States. It is operated by the University of Chicago and publishes a wide variety of academic titles, including The Chicago Manual of Style, dozens of academic journals, including Critical Inquiry, and a wide array of...
.
Further reading
- William Twining. Karl Llewellyn and the Realist Movement. London: Weidenfeld and Nicolson 1973; Norman, Oklahoma: University of Oklahoma Press, 1973.
- George W. Liebman. The Common Law Tradition: A Collective Portrait of Five Legal Scholars. New Brunswick: Transaction Publishers 2005.
- Mathieu Deflem. Sociology of Law: Visions of a Scholarly Tradition. Cambridge; New York: Cambridge University Press, 2008.
- Roger Cotterrell. The Politics of Jurisprudence. Second revised and enlarged edition. Oxford: Oxford University Press, 2003.
- Neil Duxbury. Patterns of American Jurisprudence. Oxford: Oxford University Press.