On the instrumental view of law in American legal culture

Karl Llewellyn's “On Philosophy in American Law” was not a philosophical essay but rather a chronological survey of the impact of philosophical ideas about law in American legal culture since the founding. Llewellyn (1934: 206) made this clear at the outset of his essay: “Thus what is here before the telescope is the changing array not of verbalized philosophies, but of philosophies-in-action as the history of law in these United States has gone its way. What those philosophies were, what needs they served – and whose. I am not so much concerned with the philosophers themselves, with whom indeed my acquaintance is but scanty. I am concerned with philosophy-in-action, with implicit philosophy, with those premises, albeit inarticulate and in fact unthought, which yet make coherence out of a multiplicity of single ways of doing.” It is important to consider the impact of philosophical ideas in this sense, Llewellyn wrote, because “once a philosophy has been established in the habits and attitudes of any person, it has effects” (Llewellyn 1934: 206). An underlying theme of Llewellyn's survey is that philosophical ideas have time and again been enlisted in law to serve the powers that be. His sketch can be conveyed in a few strokes. Matters started off well enough at the founding and for several subsequent generations, Llewellyn suggests, during which judging was infused with ideas about natural law and right reason.