Law School Encounters with Critical Perspectives on Law: A View from the 1990s

Part I: Introduction

Over the past decade or so, critical theory and related critical perspectives have become a subject of widespread discourse in the United States and beyond. Discussions have occurred in school board meetings and corporate boardrooms, on mass media and social media platforms, and in many other settings. Many of these discussions have been contentious and counter-productive, but some have been thoughtful and constructive. As these discussions continue, some debate persists as to what exactly critical theory and related critical perspectives are, who rightly represents them, who correctly understands them, and who may properly criticize them.

As a lawyer and law professor, I have listened with interest to these discussions, and I have been reminded of my first encounters with these perspectives when I went to law school. In 1995, I finished my Master of Divinity studies at Southeastern Baptist Theological Seminary and began my legal studies at a non-elite American law school. Although I had studied biblical literature, theology, philosophy, ethics, and history, I was unaware of the “radical” perspectives on law that had been developing at elite American law schools for more than a decade and were being exported to law schools throughout the nation. At the time, the most prominent of these radical perspectives were Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Legal Theory (FLT). [1]

These perspectives were transmitted from elite law schools to other law schools by various means. Proponents of these perspectives organized conferences at which they presented papers and networked with likeminded and sympathetic professors. They developed casebooks that were published by leading legal publishers for use in law schools, and they published scholarly writings in student-edited law journals. Graduates of elite law schools joined the faculties of other law schools, and law professors eager to be associated with the theoretical avant-garde published their own scholarship demonstrating their affinity and applying these developing approaches in various areas of law. Each of these means helped to facilitate the spread of critical perspectives within the legal academy. [2]

Because the legal academy provided a fertile environment for critical perspectives to develop and spread, there may be some value for those who were trained in American law schools during the period when these perspectives were developing and spreading to share their experience with those who were not so trained. In a series of articles, I would like to give readers a glimpse into American legal education during the mid-to-late 1990s to see how one American law student encountered and began to evaluate these perspectives and how these perspectives factored into the formation of American law students, lawyers, and judges.

I will begin by sharing about my initial encounters with these perspectives in several of the courses that I took in my first two years of study, and I will focus especially on the casebooks for these courses. After considering these courses and casebooks, I will next consider how two other courses that I took and a book that I read during my third year of law school helped me evaluate critical approaches to law. Finally, I will conclude with some observations drawn from my initial encounters with critical perspectives on law during my legal training in the 1990s and from my subsequent experience in law and legal education. [3]

Part II: Courses and Casebooks

In American legal education, full-time law students undertake a three-year course of study that introduces them to the legal subjects most crucial to the practice of law in the United States. The basic curriculum includes required courses in civil procedure, constitutional law, contracts, criminal law, property, and torts. Casebooks published by legal publishers factor significantly into the coursework, for they provide excerpts of judicial opinions and other materials to teach legal principles and rules, illustrate their applications, provide historical backgrounds, and introduce theoretical concepts. Casebooks are regularly updated with recent judicial opinions and other materials, and as a consequence they can shed light on doctrinal developments and theoretical shifts. The editions of some of the casebooks I read in law school provide insight into how American law students were introduce to critical approaches to law in the 1990s.

For instance, I encountered critical perspectives on law in the required contracts course in the fall of 1995. The assigned casebook was the third edition of law professors Charles L. Knapp and Nathan M. Crystal’s Problems in Contract Law: Cases and Materials, published in 1993. [4] The book began with an introduction that, among other things, acquainted students with various perspectives on contract law theory, including critical approaches. After observing that critical theorists have brought about “[p]erhaps the greatest recent controversy in legal scholarship,” the authors noted that CLS scholars (often known in the legal academy as “crits”) take the process of deconstruction farther than their predecessors, American legal realists. [5]

CLS scholars “argue that it is impossible to discover or develop any rational system of decision-making within our legal system as it now exists,” Knapp and Crystal explained. Furthermore, crits “maintain that attempts to justify the existing legal process are essentially a form of political ideology, mere rhetoric having as its consequence the preservation of existing distributions of power and wealth in society.” The casebook authors also observed that CLS offered a critical outlook more than a program for social change and that some crits sought as their ultimate goal “a utopian society based on altruistic and communitarian values.” After discussing CLS, the casebook authors noted that other theorists, writing from feminist and racial perspectives, contend that “the law has often served the interests of white males at the expense of women and members of minority groups” (12).

I also encountered these perspectives in several elective courses. [6] In the summer of 1996, I took two elective courses that more extensively introduced critical approaches to law. The first was a course in race and the law. The assigned text was the third edition of law professor Derrick Bell’s Race, Racism and American Law, which was published in 1992 when he was a member of the Harvard Law School faculty. Bell played a principal role in the origins of CRT, and his text surveyed race and racism in American law and introduced law students to some key ideas.

In Chapter 1, Bell highlighted two key components of racism in America:

1. the sense that white people are a superior order of humanity and black people an inferior order, and
2. the sense that America is a white country and Black institutions are unnatural and suspect and ought not be encouraged.

At the end of the chapter, Bell argued that racial tactics had been successful throughout American history and that racism had served a stabilizing role in the nation. He also explained that “racial realism” needs to do to race relations what Legal Realism did to jurisprudential thought, which was to challenge “the classical structure of law as a formal group of ‘common law’ rules that, if properly applied to any given situation, would lead to a right—and therefore a just—result” (62-63). The chapter concluded with Bell’s appeal to replace “the racial equality ideology” in civil rights thinking with an approach that “recognizes the real role of racism in our society and seeks to deflect and frustrate its many manifestations” (63).

The second course in the summer of 1996 studied feminist jurisprudence. The assigned text was the first edition of law professors Mary Becker, Cynthia Grant Bowman, and Morrison Torrey’s Feminist Jurisprudence: Taking Women Seriously, published in 1994. After sketching historical and constitutional background, the authors turned to feminist theory. Following an excerpt regarding consciousness raising, male power, and oppression by feminist legal scholar Catharine A. MacKinnon, the authors explained that “consciousness raising is the fundamental feminist method,” but they also recognized that other methods or techniques (such as storytelling) have helped to “uncover women’s reality” (57).

Having identified consciousness raising as the primary method in feminist jurisprudence, the authors continued:

Consciousness raising critiques “objective” reality as women have been taught to see it (as natural, inevitable, fair) and attempts to formulate other ways of seeing reality. Consciousness raising rejects the notion that there is one objective reality independent of one’s perspective and interests (57).

Rather than accepting a view that women’s status is personal and inevitable, consciousness raising offers a view that women’s status is political and changeable through political action. Furthermore, in the place of abstract universality that “constructs maleness as the norm of what is human, all in the name of neutrality,” feminism puts forward concrete universality, which regards context and experience as important aspects of knowledge. Additionally, feminist jurisprudence values women’s feelings and regards emotion to be closely related to reason (57-58). In their survey of feminist theory, the authors next turned to the issue of male-female difference, followed by theoretical approaches to “(in)equality,” essentialism, and heterosexism.

In the fall of 1996, I took an elective course on the American legal process. The assigned text was the second edition of federal jurist Ruggero J. Aldisert’s The Judicial Process: Text, Materials and Cases, published in 1996. Judge Aldisert sought to introduce students to how judges decide cases that come before them. In the Preface to the second edition, he observed that “a true revolution in legal philosophy [had] appeared around the turn of the [twentieth] century under the influence of three giants of the American legal tradition—Roscoe Pound, Oliver Wendell Holmes and [Benjamin N.] Cardozo.” In Aldisert’s view, these three “thinkers led us out of the discredited methodology of conceptual jurisprudence [i.e., formalism]—the view that a legal precept should be followed to its dryly logical extreme, regardless of its effects on society.” And he celebrated the generation of thinkers who followed these three and contributed to a new legal philosophy (Legal Realism) concerned with developing legal rules and institutions that yield desirable social effects and social environments that improve human life (VII).

In its treatment of the development of modern American adjudication, the second edition included a brief discussion of CLS, a movement that “contends that mainstream legal thinking is not the objective reasoning process it appears to be.” This movement, Aldisert explained, argues “that value judgments are endemic to the reasoning process, and that there is no neutral ratiocination, only interest-oriented rationalization.” Accordingly, crits presupposed that a judge’s value judgments are inherent in the judicial process in the endeavors (1) to find the law, (2) to interpret the legal precepts that are found, and (3) to apply the precepts to the facts that are found by the factfinder (99).

Part III: Reflection and Evaluation

During my third year of law school, I took two courses that afforded opportunities to reflect and process what I had been learning about critical approaches to law. Both courses were taught by Dr. Richard Stith, a Roman Catholic law professor and legal philosopher well-acquainted with the Western legal tradition. During my third year, I also read an influential book by Harvard law professor Mary Ann Glendon (a Roman Catholic) about American lawyers, judges, and law professors.

In the fall 1997 semester, I took an elective course in comparative law. Stith used the second edition of law professors Mary Ann Glendon, Michael Wallace Gordon, and Christopher Osakwe’s Comparative Legal Traditions: Text, Materials and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English and European Law, published in 1994. Before embarking on an extended study of the civil law and common law traditions, the editors introduced readers to the comparative study of law and the concept of legal tradition. They expressed their understanding that a tradition is vital, dynamic, and enduring, not frozen and static, and they credited the legal traditions that stem from the European legal culture with fitting this definition. This legal culture, which some identify as the Western legal tradition, has developed from the early Middle Ages to the present day, and it includes the Romano-Germanic civil law tradition, the Anglo-American common law tradition in Great Britain, the United States, and much of the British Commonwealth, and the twentieth-century socialist legal orders of Eastern and Central Europe.

The editors’ treatment of the concept of legal tradition included excerpts from works of legal historians Franz Wieacker and Harold J. Berman, highlighting several prominent elements of the European legal culture also reflected in the Anglo-American common law tradition. One element is personalism. Personalism involves the assignment of primacy to the individual as the subject, the end, and the key conceptual reference point in the idea of law.

A second element is legalism. Legalism is evidenced by the following:

• the development of bodies of law, legal systems, and legal institutions that are distinct from other social rules, systems, and institutions,
• the administration of those systems and institutions by individuals trained in a specialized body of learning,
• decisions about social relationships and conflicts based on general rules of law,
• the relative autonomy of law from politics and morals,
• the ordering of public and private conduct based upon established rules that are rationally comprehensible and part of growing, coherent bodies of law,
• the existence of diverse jurisdictions and legal systems in the same society, and
• the supremacy of law over people, politics, and political authorities.

A third element is intellectualism. Intellectualism is reflected in the search for essences, concepts, and themes that inhere in the making and application of law, the cultivation of a legal science that systematizes law and resolves tensions, and the fostering of a dialectical process of evaluation, refinement, and development.

In the fall 1997 semester, I took a required jurisprudence course. [7] Rather than using a legal publisher’s casebook, Stith prepared a course packet of materials. In Part One of the course, students explored what law is and how it obligates people, and they considered the authority of rules and courts. Most of the readings were drawn from key legal philosophical texts, but a few focused on CLS. One CLS reading was a report by Andrew P. Clark, “Philosophies at War in Law Schools.” His 1986 report noted that ideologies across the spectrum had begun to play a much greater role in legal education. Among the different philosophies discussed were CLS, law and economics, and natural rights theory. His report identified Legal Realism and deconstructionism [8] as the two key intellectual parents of CLS, and it explained that crits understood law to be indeterminate and deployed their radical rhetoric and critical methods in challenging the legitimacy of various theories used to justify judicial decisions.

Another Part One reading was law professor Sanford Levinson’s 1989 essay “On Critical Legal Studies.” Levinson, a self-identified CLS member, described the movement as the latest manifestation of Legal Realism, a twentieth-century legal philosophy that revolted against formalism and viewed law as “congealed social power.” He explained that realists thought that “such justice as exists is wholly dependent on the justice of those with power,” and he expressed doubt that law would “tame the powerful.” He observed that realists and many crits were influenced by contemporary literary theory. As a consequence, they emphasized the indeterminancy of interpretation and the open-textured nature of legal language, and they surmised that the reader-interpreter “creates the meaning of a legal text rather than the text . . . independently forc[ing] any given meaning on the interpreter.”

Levinson also noted that crits went further than realists in arguing that “judges feel compelled to reach certain decisions because they are caught within the web of a given legal consciousness that makes certain results appear ‘obvious.’” According to Levinson, CLS analysts suppose that legal discourse employs categories and ideals to rationalize and justify the social order for the sake of the powerful, and they aimed “to show that nothing in our [social order] is ‘inevitable’ or ‘natural.’” In his essay, he also observed that crits are deeply ideological and that “the ghost of [Friedrich] Nietzsche haunts a lot of the contemporary debate” regarding CLS.

In Part Two of the jurisprudence course, students turned to self-interest, desire, will, and reason as possible “higher” authorities that could give people a reason for obeying law. [9] Thus, in Part Two, students considered whether a person’s concern for his or her own well-being (self-interest) or whether a person’s desire to do what he or she likes, what makes for happiness, or what leads to the happiness of the greatest number (desire) could provide an adequate justification of law and legal obligation. Likewise, students considered whether adequate justification of law and legal obligation could be found in the will of God, a ruler, or a group (will) or in knowledge of what is good and right in human relations that is derived from intuition, reason, or divine revelation (reason). In this part of the course, students read an array of writers, including Aristotle, Thomas Aquinas, C. S. Lewis, Martin Luther King, Jr., and Pope John Paul II.

Part Three offered a summation of the course, but it also included two short readings of Friedrich Nietzsche: Parable of the Madman and an excerpt from the Prologue to Thus Spoke Zarathustra. Stith invited students to consider how the madman and Zarathustra, the crowd of listeners, and unbelief in God may have analogues in American legal philosophy. The madman and Zarathustra who announced God’s death but found the listeners not yet ready for the announcement could be analogous to crits who grasped in some measure the significance of the unbelief that had come to dominate American legal philosophy. The amused, unbelieving listeners, the last men confronted by Zarathustra, who deemed themselves above superstitious beliefs and were seemingly unphased by the loss of the idea of God and truth, of right and wrong, could be analogous to legal realists who did not appreciate the significance of their unbelief in law. Although believers were not directly addressed by the madman or Zarathustra in these writings, they could be analogous to legal philosophers who came before legal realists, who believed in the rule of law and reason, and who embraced an understanding of law that had sustained the Western legal tradition.

Drawing upon course readings, Stith explained that Legal Realism together with approaches to law informed by Marxism viewed the traditional notion of the rule of law (i.e., the idea that all persons and institutions are subject to a rational system of law and rules that prevents arbitrary use of power) as subterfuge masking the real reasons for judicial decisions. Indeed, according to realists and crits, rules cited by judges as reasons for their decisions were either based upon illusion or grounded on deception. Accordingly, in their challenge to the reasons and justifications cited by judges, legal realists and crits recharacterized law as whatever judges say it is, and they stirred up distrust of both reason and law. The jurisprudence students were also invited to reflect upon the implications of such distrust of reason and law and of the loss of a reason-based system of law for a democratic society that is premised upon the rule of law.

During my third year of law school, I also read Glendon’s recently published book A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society. In her book, Glendon, a professor at Harvard Law since 1987, examined significant changes in practicing, judging, and studying law in the second half of the twentieth century in America and the implications of those changes for the law-dependent American society. She found great cause for concern in what she identified as the principal shift that had occurred among lawyers, judges, and law professors. That shift was in the understanding of civil government—from a government of laws to a government of men.

In telling the story of this shift from understanding government ruled by law to government ruled by men, Glendon explored changes in the legal academy, including those associated with CLS and other critical perspectives. In Chapter 10 (“The New Academy—Look, Ma! No Hands!”), she discussed the new legal academy of the 1960s to the early 1990s. She described CLS as “a capacious umbrella covering a varied collection of individuals, connected through personal relationships and ideological sympathies, sharing some loosely related ideas and a mood of resentment regarding the distribution of wealth, power, and prestige in society” (210). Crits sought to trace “hidden patterns in the history, structure, and operation of the Anglo-American common law,” and they discerned “a more or less sinister pursuit of class, gender, or other interests in a hegemonic struggle for power” (211). Additionally, she observed, crits were evangelistic in making converts, and they had their heaviest influence inside the legal academy. Futhermore, they actively encouraged the subversion of hierarchy, sought to dismantle and reorder all substantive areas of law, and aimed to create a state of constant ferment.

If crits were descendants of legal realists, Glendon thought, they went much further in several respects: they asserted “that there is no such thing as a fact and that all rules are radically indeterminate and manipulable”; they condemned “the entire legal system as fatally corrupted by racism, sexism, and exploitation”; and they viewed “law [a]s nothing more than concentrated politics” (214). Although crits were seemingly willing to “junk the rule-of-law tradition” (214), they rarely offered “any constructive legal or social changes” (212). In this context, she reminded readers of the following cautionary word from Oliver Wendell Holmes, Jr., a key figure in Legal Realism who brought a skeptical perspective to American law and legal institutions: “‘experimenting in negations’” is “‘an amusing sport,’” but it must be remembered “‘that while it takes a few minutes to cut down a tree[,] it takes a century for a tree to grow”[10] (214). Glendon also observed that, as the CLS movement fizzled out in the early 1990s, the energy transferred over to CRT and FLT, and “many ‘old’ crits reinvent[ed] themselves as feminists, multiculturalists, champions of gay rights, and environmentalists” (215).

Part IV: Observations Based on These Encounters and Subsequent Developments

My initial encounters with critical perspectives on law together with my subsequent experience in law and legal education have led to several observations.

The Need for Attention to the History of Ideas

Although widespread public discourse in America regarding critical perspectives has emerged only in the last decade or so, discourse regarding these perspectives has been underway for some time in higher education, including American law schools. Both those who embrace and those who resist these perspectives need to understand this history. A deeper understanding of this history may help to make discussions of these perspectives less contentious and counter-productive, and more thoughtful and constructive.

The Demise of CLS and the Rise of Other Critical Perspectives on Law

The vitality of CLS had largely dissipated by the mid-1990s. As a movement, it generated more criticism of the existing state of affairs than solutions, and it ultimately offered little in terms of constructive reform. Nevertheless, despite its brief duration as a force in legal thought and legal education, CLS pushed the skepticism of Legal Realism in the direction of a more cynical understanding of law and legal institutions, and its deconstructive and activist program was readily adaptable for use by proponents of other critical perspectives on law (i.e., CRT, FLT, critical latino/a theory, and queer theory). These other critical perspectives on law have grown and filled space vacated by CLS, and these perspectives on law have remained viable forces in American legal thought and education.

The Critical Perspectives on Law and Ideology

Proponents of CLS and other critical perspectives on law have sought to discredit those who believe that objective reality is knowable, that neutral reasoning is possible, that texts have ascertainable meaning, and that judges and lawmakers in their work can engage in objective, neutral reasoning processes. Having impugned objectivity and neutrality in law and legal reasoning, proponents of these perspectives contend that law is inseparable from politics, and their ideological commitments govern how they interpret and explain the past and the present, how they analyze and classify individuals and institutions, and what agendas they seek to advance. Accordingly, these perspectives on law should not be understood to provide ideologically-neutral, analytical frameworks. Rather, they are ideologically-freighted, analytical frameworks. And, as those who were formed in American law schools over the last five decades have graduated and assumed leadership roles throughout American society, many have carried these perspectives and frameworks with them and shared them with others.

The Challenge to the Western Legal Tradition

Critical perspectives on law represent a challenge to two of the three key elements of the Western legal tradition—legalism and intellectualism—and this challenge imperils the rule-of-law ideal, which is one of the most important contributions of the Western legal tradition. Furthermore, as the skepticism (even the cynicism) of the critical perspectives on law degrades knowledge, understanding, and wisdom provided by reason and revelation, a crucial question arises: what justifications for law and legal institutions remain after reason and revelation are degraded other than will and power? Legal Realism, CLS, and critical perspectives on law have thus brought legal thought to the place where the rule of men (not law) and the will of the powerful (not will tempered by reason and revelation) may be all that remain to govern society.

For our democratic society, which is premised upon the rule of law, the negative implications of the distrust of reason and revelation and the loss of a reason-based system of law are profound. The negative implications would seemingly include losses to the legitimacy of judicial decisions and equality before the law, to public and private freedom, to security in one’s person and property, and to a market economy premised on fixed rules. This development should be deeply concerning.

The Reception of Helpful Insights

Proponents of critical approaches to law provide some insights that are helpful in identifying injustices in law and legal institutions that require our attention and remedial action. With their help, Christians can see more clearly that sinfulness has both individual and institutional manifestations and that sinful humans often construct institutions and structures that exhibit sinfulness and transmit it over time. Christians can also see more clearly that sinful human beings have used their power in and through law and legal institutions to advantage themselves and disadvantage others and thereby have created a gap between the ideals they profess and the reality they make. Furthermore, with their help, Christians can see more clearly that race is a social construct used to justify injustices and likewise that sex and sexual differences have been used to justify injustices. Accordingly, Christians can learn important lessons from proponents of critical approaches to law.

These lessons should inspire Christians in several different ways. First, they should inspire Christians to hold fast to the fundamental teaching that each and every human being is created in God’s image. Second, they should inspire Christians to scrutinize carefully all laws and legal institutions to identify and correct manifestations of sinfulness and injustice. And third, they should inspire Christians to endeavor to ensure that power is always regulated by and made to serve love and justice.

The Need for Discernment and Hopeful Engagement

In our currently polarized environment, Christians must demonstrate keen discernment and remain hopeful. They must distinguish cynical, nihilistic, and destructive voices from positive, hopeful, and constructive voices, and they must exercise good judgment regarding when, where, how, and with whom to engage. Unfortunately, not all who seek engagement on these issues act in good faith or seek genuine dialogue, and Christians should limit their engagement to those who are genuinely interested in constructive, good faith dialogue. Furthermore, Christians should remember that they have reason to hope, and they must resist the growing temptation to cynicism and despair.

Footnotes

[1] The origins of critical theory are traceable to around 1930. Critical Legal Studies (CLS) is traceable to the mid- to late-1970s, and Critical Race Theory (CRT) and Feminist Legal Theory (FLT) are traceable to the 1960s and 1970s, the civil rights movement, and second wave feminism. In the mid-1980s, several pieces were published in widely circulated publications that made the broader American public aware of the critical approaches to law developing at elite American law schools, particularly at Harvard Law School. In 1984, the New Yorker published a piece by Calvin Trillin entitled “A Reporter at Large: Harvard Law,” and then in 1986, The Washington Post published a piece by Paul Barrett, a second-year student at Harvard Law School, entitled “Self-Hatred and Doubt at Harvard’s Law School,” the Wall Street Journal published Terry Eastland’s “Radicals in the Law Schools,” and The New Republic published Louis Menand’s “Radicalism for Yuppies.” Proponents of these perspectives have themselves used the term “radical” to describe their interest in social and political perspectives calling for fundamental social and structural change.

[2] Within the legal academy, many responded disapprovingly to these new perspectives. For instance, Paul D. Carrington, Dean and Professor of Law at Duke Law School, published a widely-discussed article addressing the threat posed by critical legal theorists (crits) in legal education. He argued that the legal profession “cannot abide . . . the embrace of nihilism and its lesson that who decides is everything, and principle nothing but cosmetic.” Furthermore, he wrote, “[t]he nihilist teacher threatens to rob his or her students of the courage to act on such professional judgment as they may have acquired. Teaching cynicism may, and perhaps probably does, result in the learning of the skills of corruption: bribery and intimidation. In an honest effort to proclaim a need for revolution, nihilist teachers are more likely to train crooks than radicals.” Paul D. Carrington, “Of Law and the River,” Journal of Legal Education 34 (1984): 222-28.

[3] These articles do not undertake to provide a thorough theoretical evaluation of critical perspectives on law (or of critical theory more broadly). Many scholars are engaged in that crucial work, but it goes beyond the scope of these articles.

[4] I currently use the ninth edition of this casebook in the contracts course I teach, and it continues to include a brief introduction to critical perspectives on law, which I assign my students to read.

[5] Legal realists were a collection of early twentieth-century legal scholars who approached judicial decision-making with skepticism and sought to uncover the “real” reasons and motivations (such as personal beliefs or political biases) behind judicial decisions.

[6] The law school that I attended required students to take at least one legal perspectives course as part of their studies in the Juris Doctor program. I ultimately took five perspectives courses during my legal education.

[7] At that time, two sections of the jurisprudence course were offered at my law school: one taught by Stith, and the other by a feminist jurisprudent.

[8] Deconstruction is a method of critical analysis associated with Jacques Derrida that scrutinizes texts, language, and social institutions, seeks to discern underlying assumptions, ideas, and frameworks, denies that texts have fixed meanings, and questions traditional assumptions regarding truth and certainty.

[9] The turn to these other authorities was needed because the social fact of law (the subject of Part One) did not seem to provide adequate justification for law and legal obligation.

[10] Oliver Wendell Holmes, Jr., His Book Notices and Uncollected Letters and Papers 139 (Harry C. Shriver ed., 1936).