William G. McRoberts

The Formal Character of Law

In this paper, I will (1) state and clarify my main theses about the formal character of law, (2) sketch out and briefly illustrate how I am developing and defending these theses, (3) differentiate in a very general way my theses from the concerns of other theorists, and (4) explain how the truth or soundness of my theses may be important. But this is only a preliminary account. A book will eventually follow.1

The Argument from Ordinary Meaning in Statutory Interpretation

The subject of statutory interpretation is as old as written law, yet it is by no means fully understood. The subject is also one in which legal theory and legal practice intersect at many points. One branch of the subject takes the form of an inventory and analysis of the nature and limits of leading types of interpretive arguments. This is the branch we will explore now. But within that branch, we will concentrate on only one leading type of argument in the field, namely, the argument from ordinary meaning. This has for a long while been the leading type of interpretive argument in Britain,1 and there are recent signs in the United States, especially in the Supreme Court,2 that the argument from ordinary meaning is now coming more into favour.

The Conceptualization of Good Faith in American Contract Law

Each state of the United States has its own separate and relatively self sufficient body of general contract law. In a given state, most of this law consists of common law opinions of the highest court of that state. This means the United States has fifty bodies of general contract law. Each state legislature has also adopted the Uniform Commercial Code, a body of statute law that applies to contracts for the sale of goods, negotiable instruments, certain relations between banks, and between banks and their depositors, letters of credit, bulk sales, warehouse receipts, bills of lading, investment securities, and security interests in personal property. In addition, each state legislature has adopted various isolated statutes of its own which deal with one or more aspects of contract law. A few federal statutes also address issues of contract law.

Rudolf von Jhering’s Influence on American Legal Theory

A number of leading American legal theorists of the 19th and 20th Centuries read major works of the great jurist, Rudolf von Jhering1 (1818–1892). The most notable of these American theorists were Oliver Wendell Holmes, Jr. (1841–1935), Roscoe Pound (1870–1964), Karl N. Llewellyn (1893–1962), and Lon L. Fuller (1902–1978). Holmes was first a practicing lawyer, then for a brief period a professor of law at Harvard, then a judge of the highest court of Massachusetts, and finally a justice of the United States Supreme Court for many years. He substantially influenced American legal thought. Roscoe Pound, however, was probably America’s most influential legal theorist, at least at the level of general directions of thought. He profoundly influenced the dominant theory of law in America during this century, a theory I call “pragmatic instrumentalisme”. Pound was a professor and dean at Harvard Law School. Karl N. Llewellyn was a professor at Columbia and Chicago, and a leader of the realist wing of the American pragmatic instrumentalists. Lon L. Fuller, a professor at Harvard, was a brilliant critic of positivist elements in American and European legal theory, but he developed a distinctive jurisprudential theory of his own, and also, like Llewellyn, contributed importantly to the theory of American private law.

Economists’ Reasons for Common Law Decisions

When judges write opinions in common law cases they frequently seek to justify their decisions not merely by citing any relevant precedent or other authority but also by setting forth what we will call ‘substantive reasons’. Reasons of this kind incorporate moral, political, institutional, or other social considerations.1 In our view, substantive reasons have primacy over appeals to authority in the common law.2 Judges must rely on such reasons in cases of first impression, cases posing conflicts of precedent, and in cases involving the overruling or other renovation of precedent. Moreover, judges should and do advert to the substantive reasons behind precedents in order to interpret them and determine their scope.3

Economics and the Autonomy of Law, Legal Analysis and Legal Theory

The main theses of this paper are: 1. Since about 1960 in the United States there has been an important movement in legal thought applying economic analysis to law (the “law and economics” movement).1 2. Some American proponents of economic analysis of law have expressly stated or implied that law, legal analysis, and legal theory have no genuine autonomy of any kind. Instead, law, legal analysis, and even legal theory can all be reduced, without loss, to economics and economic analysis. 3. Although nearly all legal theorists would, I believe, ultimately reject the extreme view that law, legal analysis, and legal theory are all somehow reducible to economics and economic analysis, it can be instructive to take this view seriously and consider how it might be refuted.

Interpreting Statutes and Precedents — Two Comparative Studies

The creation and application of law are major realms of practical reason. In the application of a statute, it is usually necessary to interpret the statute. Indeed, in most Western systems, statutory interpretation is the single most prominent form of practical legal reasoning. In several of these systems, the interpretation of precedent is also a major form of practical legal reasoning.

Substantive Justification in Contract Cases — the Primacy of Rightness Reasons

My theses in this essay are: (1) that the essential content of judicial justifications includes two basic types of reasons which I will call authoritative and substantive. Authoritative reasons are those which appeal primarily to the legal authoritativeness of statutes, cases, contracts, and other antecedent forms of law. (Elsewhere, I have also called these “formal” reasons.) Substantive reasons do not appeal to legal authority. They stand on their own, and consist of moral, political, economic, or other social considerations, (2) that although authoritative reasons are numerically far more common in judicial justifications, substantive reasons are no less important, especially in the American legal system, (3) that the types of substantive reasons that figure injudicial justifications may be subdivided into three varieties: goal reasons, Tightness reasons, and institutional reasons, concepts I will define, (4) that rightness reasons and institutional reasons have historically been and continue to be the overwhelmingly dominant varieties of substantive reasons in judicial justification in the general common law of contract in particular, with goal reasons a distant third, despite the fact that goal reasons seem also to be widely available in the cases,

On Identifying and Reconstructing a General Legal Theory

My purposes in this article are dual: to discuss some relatively neglected issues about the scope, aims, and methods of legal theory that arise out of, yet transcend, the differences between Professor Moore and myself, and to comment on some of Professor Moore’s criticisms of my book, Instrumentalism and American Legal Theory 1

The Formal Character of Law — Statutory Rules

My general thesis is that law is formal in character.* Here I will suggestively develop how this thesis, applies to statutory rules, which comprise one of the basic, essential, and ubiquitous types of legal construct in all legal systems. I single out such rules because of their special importance. First, they are instruments both of problem-specific policy and values associated with the rule of law. Second, they are also used to shape and define virtually all other basic types of legal constructs. Thus, rules are used to shape and define legislatures, elections, courts, criteria of validity, methodologies of interpretation, the practice of stare decisis, official agencies, corporate bodies, other recognized legal entities, and so on.