Origins of Order: Project and System in the American Legal Imagination by Paul W. Kahn (review)

In Origins of Order: Project and System in the American Legal Imagination, Paul W. Kahn explores the nineteenth-century American legal imagination through two constructs: project and system. According to Kahn, a project begins with an abstract norm, which then takes shape through a designed plan. The purpose of the project is the material realization of the norm; the project is then measured by how successfully that existing norm was realized. Projects have both a creator and a beginning; they are best understood by narrative.

In contrast, Kahn claims that systems are understood not by narrative but by structural analysis. A system has no known creator and no known beginning, but, instead, is a set of immanent principles of order. The ethos of a system is to maintain itself. It is both self-healing and self-correcting. A system is emergent or discovered, not directed. Its immanent principles of order may be unknown to those who are fulfilling the system's purpose.

While it seems clear, early on, that ideas of project and system must have bearing on how we think about high-conflict questions of constitutional interpretation today, Kahn is refreshingly evenhanded in his discussion throughout the text. The result is a fair-minded exposition of the philosophies of legal thinkers as dissimilar as the theologically minded William Blackstone—operating on the basis of immanent principles believed to be both known and knowable through reason—and Oliver Wendell Holmes—a social scientist operating on data and underlying patterns that may be unknown to those in the relevant social group. In short, Kahn takes the philosophies of prior legal thinkers seriously—on their own terms and in their own contexts.

That work, alone, is complicated enough. Legal thinkers across the long nineteenth century borrowed heavily from multiple philosophies, and not always in ways that would be recognizable to the original proponents of those philosophies or to us today. On the former point, Kahn describes Holmes's application of Darwinism to the social sphere, noting it is a Darwinism that Darwin himself would not have fully recognized. On the latter point, Kahn describes Woodrow Wilson's invisible-hand, system-based legal philosophy as owing a debt to Wilson's somewhat pale view of providence. If as described, Wilson's view of providence was pale, indeed, running counter to the sustaining and intervening providence highlighted in the Westminster Confession of Faith, the faith confession of Wilson's own Presbyterian upbringing.

Kahn mentions at several points that project and system are often in tension and not always mutually exclusive, stating, for example, that the project of the Declaration of Independence was informed by systemic thinking about law and natural law in the Enlightenment Era. This interdependence is worth exploring in more depth. For example, Kahn is correct that Blackstone's legal philosophy is system-based, but it was also conceptualized by Blackstone in the same type of architectural terminology that Kahn attributes to projects. That Blackstone believed the common law's system was not self-healing but, instead, needed human actors to intervene through a remediation project is evident through his persistent claim that it would be up to the MPs and judges of his day to take active steps to remove the faulty additions of prior jurists and thereby improve and perfect the structure of the common-law system. It is a fascinating combination of project and system in Blackstone's legal philosophy. Kahn's articulation of legal philosophy in architectural terms is supported by a robust discussion of Blackstone's propensity to do the same, as seen in Carol Matthews, "A 'Model of the Old House': Architecture in Blackstone's Life and Commentaries," in Blackstone and His Commentaries: Biography, Law, History, ed. Wilfrid Prest (London, 2009); Cristina S. Martinez, "Blackstone as Draughtsman: Picturing the Law," in Re-Interpreting Blackstone...