1. Geertz, C., “Fact and Law in Comparative Perspective” in Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983).Google Scholar

2. It would be absurd, for instance, to call on a principle of bankruptcy law to decide a case that all concerned take to be a question of negligence (assuming that neither party is faced with potential bankruptcy).

3. Geertz, supra note 1 at 180.

4. Geertz goes on to explore three specific methods for achieving bilateral symmetry between the “if, then” structure of rules and the “as, therefore” structure of decisions. As one might expect, Geertz takes examples from Malaysian law, Islamic law and Indie law. Geertz’s analysis is fascinating in its own right, but beyond the scope of the present discussion.

5. Put briefly, the legal rule fetishist believes that a legal system is a complete and consistent set of norms that provides a uniquely correct answer to any legal question that falls within the set. The position is closely akin to that of the ‘mechanical jurist’ attacked by Pound, Roscoe in his classic essay “Mechanical Jurisprudence” (1908) 8 Colum. L. Rev. 605.CrossRefGoogle Scholar For a concise statement of the position attributed to rule fetishists, sometimes called rule formalists, see Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961) ch. 7.Google Scholar

6. Fact worshipers, polar opposites of rule fetishists, eschew the importance, if not the very existence, of legal rules. This position is explicated by some of those associated with the Legal Realist movement in the United States, most notable Frank, Jerome in Law and the Modern Mind (New York: Tudor, 1936).Google Scholar Again, for a concise statement of the position of the fact worshiper, see Hart, supra note 5 ch. 7.

7. While I draw principally from Llewellyn’s work on the Uniform Commercial Code to defend my views about his theory of codification, his seminal writings also shed light on the issue. See generally, Llewellyn, K., The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960);Google Scholar Llewellyn, K. and Hoebel, E.A., The Cheyenne Way (Norman: University of Oklahoma Press, 1941);Google Scholar Llewellyn, K., The Bramble Bush (Dobbs Ferry, NY: Oceana Press, 1930).Google Scholar

8. Pound, , “Law in Books and Law in Action” (1910) 44 Am L. Rev. 12.Google Scholar

09. As is discussed below, the work of Nagel, Quine and, particularly, Nelson Goodman illustrate the nature of holistic approach to codification in epistemology. See notes 39 through 50, infra and accompanying text.

10 The clearest example of a holistic approach to codification in ethics is found in the work of John Rawls and the development of that work by Norman Daniels. As I show below, Rawls’ test of reflective equilibrium is a tool for holistic codification. See notes 51 through 60, infra, and accompanying text.

11. Hume’s basic objection to induction was that for induction to be justified one needs a principle like the Principle of the Uniformity of Nature (roughly a belief that the future will be like the past) in order to make reliable predictions about future events on the basis of past events. Sadly, the only justification Hume could find for the Principle of the Uniformity of Nature was itself an inductive inference: we are justified in believing that the future will be like the past because in the past the future has always been like the past. Such reasoning is clearly circular, and viciously so. Absent some other justification, one not itself relying on the method whose legitimacy is to be established, induction cannot serve as a basis for making reliable predictions.

12. An excellent general treatment of the problems of confirmation theory can be found in Scheffler, I., The Anatomy of Inquiry (Indianapolis, IN: Hackett, 1981).Google Scholar The present treatment of these problems is far more compressed than is Scheffler’s and follows the outline provided by Goodman, Nelson in Fact, Fiction, and Forecast (New York: Bobbs-Merrill, 1955) ch. 4, “The New Riddle of Induction”.Google Scholar

13. By ‘independent’ I mean a statement neither logically implied by nor inconsistent with e. The reasons for this restriction will become obvious shortly.

14. See generally, Goodman, supra note 12 at 69.

15. Symbolically, (x)(Mx → Ex) where ‘Mx = x is metal’, ‘Ex = x expands when heated’, ‘→’ stands for the conditional, and (x) is a universal quantifier.

16. Nicod, J., Foundations of Geometry and Induction trans. Weiner, P.P. (London: Kegan Paul, Trench, Trubner & Co. Ltd., 1930Google Scholar).

17. Symbolically, ‘Ma & Ea’ is a confirming instance; ‘Ma & ∼Ea’ is a disconfirming instance; ‘∼Ma & Ea’ and ‘∼Ma & ∼Ea’ are both neutral.

18. The phrase ‘Nicod’s criterion’ is due to Hempel, Carl, “Studies in the Logic of Confirmation” (1954) 54 Mind 1.Google Scholar

19. Goodman, supra note 12 at 71.

20. It should be noted that Hempel, talcing a heroic tack, gives up his intuitions about confirmation in favor of what he takes to be the strongest theory.

21. Of course, one can argue that such objections simply beg the question in that alleging a particular act is unjust presupposes that one knows that what is right in a given situation, but the very purpose of an ethical theory is to allow us to determine what is right.

22. In ethics Carl Wellman is one theorist who is willing to sacrifice his moral intuitions on the alter of good theory. Wellman finds act utilitarianism to be the best moral theory and he grudgingly concludes that his intuitions which are inconsistent with the theory should be abandoned. See generally, Wellman, Carl Morals and Ethics 2d ed. (Englewood Cliffs, NJ: Prentice Hall, 1988) at 47.Google Scholar

23. One standard definition of a legal system is that one is an organized set of rules for the resolution of disputes arising from diverse social interests. According to such a model, it is of the essence of a legal system that it be a system of rules and that the rules and the rules alone settle disputes. In a famous passage Blackstone expresses such a view:

The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus: against him, who hath rode over my corn, I may recover damages by law: but A. hath rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice….

SirBlackstone, William, vol. 3 Commentaries on the Laws of England Lewis, Wm., ed., (1897) at 396.Google Scholar

24. One apparent proponent of this view is Ronald Dworkin, who claims that a legal system must be complete, that is, that it must provide a uniquely right answer to each and every problem presented to the system. See generally Dworkin’s, “Model of Rules I,” and “Model of Rules II” in Taking Rights Seriously (Cambridge, MA; Harvard University Press, 1978),Google Scholar “No Right Answer” in Law, Morality, and Society, Hacker, P.M.S. & Raz eds, J., (Oxford: The Clarendon Press, 1977),Google Scholar and in “Is Law a System of Rules?” in Summers, R. ed., Essays in Legal Philosophy (Berkeley, CA: University of California Press, 1968).Google Scholar

25. Hart, supra note 5.

26. 81 Md. 315, 32 A. 515 (1895).

27. Judge McSherry has some fascinating things to say about the “apparent hardship” worked by the application of the rule to the case. “A principle, if sound, ought to be applied wherever it logically leads, without reference to ulterior results…Its consequences in special cases can never impeach its accuracy.”

28. For an outstanding theoretical presentation of a problem of asymmetry see, Fuller, Lon, “The Case of the Speluncean Explorers” (1949) 62 Harv. L. Rev 616.CrossRefGoogle Scholar In this hypothetical case the demands of the law are quite clear, as is the injustice of that demand. The dilemma faced by the decision makers is whether to to something that is clearly unjust in the name of the law or whether to abandon the clear rules in order to achieve a just result.

29. See, e.g., Hynes v. New York Cent. R.R., 231 N.Y. 229, 131 N.E. 898 (1932) in which Judge Cardozo explicitly embraces a “realist” solution to the problem of finding a rule which produces a reasonable solution to the case. Despite the availability of a clear legal rule that resolves the case at hand, Cardozo characterizes the case as falling within the scope of a different rule that produces a more just solution.

30. 30. Conflicts of law problems are sometimes referred to as “the law of multi-state problems” or as “choice of law” problems. For a host of reasons, many of which I will not go into here, I prefer the term “conflicts of law” to describe the relevant phenomenon.

31. See generally, Weintraub, R.J., Commentary on the Conflicts of Law (Mineola, NY: Foundation Press, 1989);Google Scholar Leflar, R., American Conflicts Law (Mineola, NY: Foundation Press, 1980);Google Scholar Cook, W.W., The Logical and Legal Basis of the Conflicts of Law (Buffalo, NY: W.S. Hein, 1942);Google Scholar Currie, B., Selected Essays on the Conflict of Laws (Buffalo, NY: W.S. Hein, 1990).Google Scholar

32. Such cases frequently involve doctrines like interspousal tort immunity (an antiquated rule holding that one cannot sue one’s spouse for tort injuries) or automobile guest-passenger statutes (rules that host/drivers are responsible only for injuries caused by gross or wanton negligence, but not for injuries caused by ordinary negligence). These two particular conflict of laws problems have occupied the attention of courts and legal scholars for some time.

33. 7 Wis.2d 130,95 N.W.2d 814 (1959).

34. Strictly analogous fact settings continue to arise. Virginia was recently forced to deal with just such a question. MacMillan v. MacMillan, 219 Va. 1127,253 S.E.2d 662 (1979). Unfortunately, the Virginia Supreme Court followed an unenlightened course and retained the lex loci rule. For criticism of the Virginia court’s ruling see, Rendleman, D., “ McMillan v. McMillan: Choice of Law in a Sinkhole” (1981) 67 Va. L. Rev. 315.CrossRefGoogle Scholar

35. Haumschild v. Continental Casualty Co. 7 Wis.2d 130 at 134,95 N.W.2d 814 at 817 (1959).

36. It should be noted that stability in choice of law—thought necessary to prevent forum shopping—though desirable, can quite easily be achieved through the rigid application of rules like the lex loci rule. The cost of stability, however, is asymmetry. For many conflicts theorists and practitioners, stability in law at the cost of asymmetry is no bargain.

37. Crampton, R., Currie, D., Kay, H., Conflicts of Laws: Cases-Comments—Questions (St. Paul, MN: West Publishing Co., 1978) at 95.Google Scholar

38. As a matter of historical fact, modern trends in conflict of laws theory have made characterization obsolete in most jurisdictions. What goes under the name ‘interest analysis’ vitiates the need to characterize. For an example of contemporary interest analysis, see Leflar, supra note 31; and Weintraub, supra note 31.

39 The notion of bilateral or reciprocal containment comes from Quine’s seminal essay “Epistemology Naturalized.” Quine argues in mat essay mat there must be a reciprocal containment of epistemology and psychology according to which our best psychological theories make possible the epistemic claims we actually make and in which our best epistemic theories allow us to make the claims advanced by psychological science. See, Quine, W.V.O., “Epistemology Naturalized” in Ontological Relativity and Other Essays (New York: Columbia University Press, 1969) ch. 3 at 69–90.Google Scholar

40 See generally, Quine, W.V.O. & Ullian, J.S., The Web of Belief 2d. ed. (New York: Random House, 1978),Google Scholar Quine, W.V.O., “Epistemology Naturalized” in Ontological Relativity and Other Essays (New York: Columbia University Press, 1969);Google Scholar Quine, W.V.O., “Two Dogmas of Empiricism” in From A Logical Point of View (Cambridge, MA: Harvard University Press, 1961).Google Scholar

41. Quine does make some claim to a correspondence theory of truth for science, although his views on underdetermination of theory and the indeterminacy of translation make his commitment to such a view dubious. Quine quips that while science still has some claim to a correspondence theory, coherentism apparently is the lot of ethics.

42. Nagel, E., “Logic Without Ontology” reprinted in Feigl & Sellars Readings in Analytical Philosophy (New York: Appleton, Century and Crofts, 1949) at 191.Google Scholar

43. Carnap, R., “Empiricism, Semantics, and Ontology” reprinted in Morrick, H., Challenges to Empiricism (Indianapolis, IN: Hackett, 1980) at 28.Google Scholar

44. Carroll, L., “What the Tortoise Said to Achilles” in The Complete Works of Lewis Carroll (New York: Vintage Books, 1976) at 1225–30.Google Scholar

45. To be sure there is a difficulty in identifying which inferential practices are good ones and which are bad ones. Goodman’s pragmatism leads him to the view that those which work (and which have some record of working over time) are the good ones.

46. By ‘foundational primacy’ I mean the degree of importance or centrality traditionally accorded to a single source of knowledge in foundationalist epistemology.

47. N. Goodman, supra note 12 at 67.

48. N. Goodman, supra note 12 at 71–72.

49. For a full discussion of the concept of entrenchment and on the techniques for distinguishing entrenched from non–entrenched predicates, see Fact, Fiction Forecast, supra note 12, ch. 4 at 84–124.

50. One readily apparent objection to the entire procedure involves the identification of competent moral judges. Rawls, addresses the difficult task of discerning moral competence in “Outline of a Decision Procedure for Ethics” (1951) 60 Phil. Rev. 177.CrossRefGoogle Scholar Despite Rawls’ efforts to resolve this difficult issue, one cannot help but be reminded of Bertrand Russell’s conjugation of the highly irregular verb “I am firm, you are obstinate, he is a pig-headed fool,” whenever the issue of moral competence arises.

51. It is important to note that the set of considered moral judgments itself is subject to further revision. No judgment has foundational primacy for Rawls. Following Norman Daniels, I agree that it is error to read Rawls as a foundational intuitionist in ethics for whom the considered moral judgments carry epistemic privilege. See generally, Daniels, N., “Wide Reflective Equilibrium and Theory Acceptance in Ethics” (1979) 79 J. of Phil. 256, particularly 264–68.CrossRefGoogle Scholar

52. I should point out here that there are two different levels at which the test of reflective equilibrium operates: on a narrow level (as described in the text) and on a wide level. Wide reflective equilibrium involves establishing a balance between an ethical theory and other non–moral judgments and theories. In ethical theory proper, establishing wide reflective equilibrium is a major concern, but beyond the scope of the present paper. See. Daniels, supra note 51; Daniels, N., “Reflective Equilibrium and Archimedean Points” (1980) 10 Can. J. of Phil. 83;CrossRefGoogle Scholar Timmons, , “On The Epistemic Status of Considered Moral Judgments” (1990) XXIX (supplemental) Southern J. of Phil. 97.Google Scholar

53. Excellent statements of the difference between wide and narrow equilibrium can be found in Daniels, supra note 51, and in Timmons, supra note 52.

54. See generally, Timmons, supra note 52 at 99.

55. Daniels, supra note 51 at 266.

56. Ibid.

57. Timmons, supra note 52 at 100.

58. Some moral realists attempt to argue that moral realism is compatible with the method of reflective equilibrium, even though realism gives considered judgments special epistemic status. For a devastating critique of moral realist attempts to use the method of reflective equilibrium, see Timmons, supra note 52.

59. As Daniels argues, it is in principle possible to imagine giving up the principle that “It is wrong to inflict pain gratuitously on another person,” but that such a move would be made only after an almost unimaginable set of broader revisions in our nonmoral background theories. Daniels, supra note 51 at 267.

60. Goodman does not discuss the possibility that there could be a tension between equally wellentrenched, central beliefs. The possibility that such tensions could arise is fascinating, but beyond the scope of this paper.

61. Gedid, , “UCC Methodology: Taking a Realistic Look at the Code” (1988) 29 Wm. and Mary L. Rev. 286.Google Scholar It should be clear that if the Realists were involved in creating statutes that the common caricature of Realism as radical rule-skepticism simply will not do.

62. See generally, Gedid, supra note 61; Hawkland, , “Uniform Commercial ‘Code’ Methodology” 1962 U. of 111. L. Forum 291 (Fall 1962),Google Scholar Twining, W., Karl Llewellyn and the Realist Movement (London: Weidenfeld and Nicolson, 1973).Google Scholar

63. Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Fiftieth Annual Conference (1940) at 87.

64. The historical and philosophical disputes about the nature of codification and Llewellyn’s views on those disputes are a worthy topic for examination in their own right, but I cannot delve into them here. Twining gives a very nice summary of Llewellyn’s views on codification, as do Gedid, supra note 61; Hawkland, supra note 62; and Wiseman, , “The Limits of Vision: Karl LLewellyn and the Merchant Rule” (1987) 100 Harv. L. Rev. 465;CrossRefGoogle Scholar Franklin, , “On the Legal Method of the Uniform Commercial Code” (1951) 16 Law & Contemp. Probs. 330;CrossRefGoogle Scholar Kripke, , “The Principles Underlying the Drafting of the Uniform Commercial Code” 1962 U. III. L. F. 321 (1962).Google Scholar

65. On this score alone, serious differences between Llewellyn and Pound become clear. Pound was at the very least suspicious of lawyers and judges who tried to become social scientists. For Llewellyn, becoming a social scientist was necessary to be a good jurist.

66. There was, for instance, a lack of coordinated data gathering and an absence of tests on the reliability and validity of what data was gathered. Not only in the UCC but also in The Cheyenne Way, a modern sociologist can find methodological fault.

67. The instances in which Llewellyn criticizes lawyers, judges and legislators for a shocking ignorance of the realities of commercial practice are legion. In a blunt statement to the New York Law Revision Commission in 1954 Llewellyn stated:

No person associated with the undertaking had at the outset any remotest suspicion of how deep, how widespread was ignorance of our commercial law among both our bar and business community; still less did any man have suspicion of how much of the ‘knowledge’ of many ‘experts’ was smug, flat ignorance, ignorance that was dangerous to their clients.

Reprinted in Twining, supra note 62 at 537.

68. Llewellyn, , The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960) at 38.Google Scholar

69. Llewellyn, Statement to the Law Revision Commission, reprinted in Twining, supra note 62 at 538.

70. Llewellyn, , “Problems of Codifying Security Law” (1948) 13 L. and Contemp. Problems 687.CrossRefGoogle Scholar

71. Llewellyn, supra note 68 at 36.

72. Llewellyn, , “On the Current Recapture of the Grand Tradition” (1960) 9 U. Chi. L. Sch. Rec. 6.Google Scholar

73. Llewellyn, supra note 68 at 44.

74. Dewey, J., “Logical Method and Law” (1924) 10 Cornell L. Q. 17 at 26.Google Scholar

75. Twining correctly notes that it is a serious error to divorce Llewellyn’s theoretical writings from his commercial writings. For Llewellyn, the UCC and other commercial law projects were attempts to put theory into practice. In all such attempts Llewellyn sought to balance abstract doctrine with real practice. See, Twining, W., “The Quest for Llewellyn” in The Karl Llewellyn Papers (Chicago: University of Chicago Law School, 1968).Google Scholar

76. Wiseman makes the point that Llewellyn was in the business of making mutual adjustments between norms and practices, but does not pursue the point. Wiseman, supra note 64 at 471–72.

77. For Kelsen a norm, be it general or individual, exists only as a result of a direct act of the will—positing. Thus for an individual norm to be valid, e.g., “Smith shall be sentenced to jail for a term of not less than three and not more than five years”, some duly empowered normauthority must have posited it. But in so positing an individual norm, even if it appears to be a mere application of a general norm to a specific case, the judge (or jury as the case may be) creates law.