Intellectual History in Detail

Intellectual histories range along a continuum between two extreme types: one emphasizes the intellectual and the other emphasizes the history. A writer of the first type of intellectual history is primarily interested in ideas, theories, and philosophies—the abstract manifestations of the intellect. Such a writer is more the philosopher, but nonetheless recognizes the worth of a historical understanding of the so-called life of the mind; otherwise, she would not write an intellectual history. A writer of the second type of intellectual history focuses on the details, the small instances, as she seeks to explain the intellectual trends wending through either a time period or certain protagonists’ lives. Such a writer, more the historian, typically relishes digging through obscure and dusty archives for nuggets of golden information. She recognizes, though, the need to orient the life of detail in some theoretical context so that it has broader significance; it cannot be a mere laundry list of details. In short, the first type of intellectual historian stresses the intellectual life, while the latter type concentrates on the life of the intellectual. N.E.H. Hull is an intellectual historian of the second type: she is foremost a historian. With regard to American legal thought, then, she writes more in the manner of Perry Miller than that of Grant Gilmore. ¹

Recognizing who Hull is, in these terms, demarcates the aims and methods of her excellent book, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence. Hull frames her basic story as follows. First Roscoe Pound and then Karl Llewellyn entered the legal academy at a time when formalism, the dominant jurisprudential paradigm of the late nineteenth century, was “under assault” (p. 35). Consequently, they each sought “to search for a genuinely American jurisprudential approach” (p. 13). Their method in this search was what Hull refers to as bricolage, picking and choosing from the resources and tools at hand to patch together a useful instrument for their purposes. More specifically, Pound and Llewellyn liberally drew upon the insights and methods of other academic disciplines, particularly the social sciences, as well as the theories of European, especially German, jurisprudential scholars. Ultimately, Pound’s and Llewellyn’s efforts to conceive a unique and genuine American jurisprudence were fulfilled, though not perhaps as they had foreseen. While Pound was the acknowledged leader of sociological jurisprudence, and Llewellyn was perhaps the leading legal realist, they together created an American jurisprudence that largely mirrored their own methods of bricolage. “[T]he process of assembling the bits and pieces was uniquely American, and it continues to this day. American jurisprudence is a bricolage, a ‘law and . . .’ par excellence” (p. 340).

This summary of Hull’s narrative does not do her justice because her story lies in the details, not the broad outline. As Hull puts it, the published essays and books of a scholar constitute a “public discourse.” But such public discourse, Hull argues, cannot be fully understood if one fails to account for the scholar’s “private discourse, carried on in the correspondence and informal discussion among jurisprudents” (p. 4). Hence, Hull explores many aspects of Pound’s and Llewellyn’s private lives and then relates her insights to their published works. Of course, in a brief review such as this one, I cannot even summarize Hull’s many detailed discussions, but I shall sketch a couple of examples to offer at least a taste of the historical richness of Hull’s book.

Hull explains that early in Pound’s career, when he was still the dean at the law school of the University of Nebraska, he began giving talks that would be subsequently published. Pound’s first, from 1904, evolved from his extensive discussions with a well-known Nebraska sociologist, Edward A. Ross. Under Ross’s influence, Pound argued that a “new school of jurists” might be “styled the Sociological School” (pp. 56–57). Hence, the idea of sociological jurisprudence in America was born...