A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism

Abstract

The legal profession does not enjoy a reputation among laymen for undue modesty. Lawyers have not been backward in publicizing their contributions to government and to political thought. Yet, strangely, most lawyers have failed to assert, as they might, that from lawyerdom have emanated other kinds of ideas, once technically legal, which subsequently, in nonlegal form, have profoundly affected other thought-fields. Consider, for instance, the idea of "cause." It began as a legal notion in the Greek courts, where "cause" originally denoted "responsibility" or guilt; something of that meaning it long retained when it spread into scientific and philosophic discourse. Helen Silving tells us that the "term 'facts' in the sense of realities (actual happenings) has its origin in the law and was thereafter adopted by other disciplines and common usages, and not vice versa, as is generally assumed."' Lon Fuller reminds us that "average"–which represents a crucial concept in modern physical science and in life insurance–"is a law word." The "Socratic method" was transplanted from the methods of the courts. The legal, philosophic and scientific concepts of "law" have often interacted. The "logic of discovery" (or of "invention") has its roots in lawyers' techniques.