This might be called our "New Year's Issue" of LEARNING AND THE LAW. Not only is it the last number of the magazine to appear in 1975, but, more importantly, many of the articles presented here embody the spirit of this time of year. It is a spirit of reassessment, of looking backward and ahead, of evaluating the past and setting goals for the future. …
Some of LEARNING'S readers may be surprised at the extent to which Peter d'Errico, in another article included here, seeks to break away from common modes of thought about legal education. But his paean to the virtues of legal studies programs cannot be ignored. Indeed, some scholars would say it is the voice of the future calling the past to an accounting. …
We are pleased to have you join in this look toward the future. And we wish you a happy new year. -The Editors
My only critique of the critique is that so often the formulation of the antongists to the establishment in the form communism or libertarianism or anarchy are fundamentally anti-God not in the sense of seeing past idols including those of empire and imperialism and legalism but in terms of serving cult interests that are dark in their inverted distortions, often guised as atheism but actually serving the inverted religion that is the opposite of love.
It may be a 'step too far' for legal education (perhaps an 'elective' seminar?), but there is one more step. Before 'Civilization' came along and most of us were living in tribes according to our primal instincts, there were no 'laws.' Each tribe's 'sanctions' for behaviors that endangered the stability and connectedness of tribal life were all that were needed. There was no ideal of creating the 'perfect man' (sic). Our 'imperfections' were accepted as a given, and our remedies were seen as 'rehabilitation' not 'punishment.'
Modern religions and their concepts of 'sin' were at the heart of the development of legal systems and codes. We must return to our more ancient wisdoms and 'soon.'
The Cheyenne Indians are one of the most famous tribes of the Great American Plains. While they lived a nomadic, semi-pastoral, hunting existence, the Cheyenne still abided by a clear and well-organized legal and social system. In an effort to examine the way of the Cheyenne more closely, authors Karl N. Llewellyn (a specialist in law) and E. Adamson Hoebel (an anthropologist) decided to perform a field investigation in the summer of 1936. The result of their work was The Cheyenne Way, an illuminating study of the guidance of group conduct without violence in a primitive society having no organized government. It presents 53 cases recorded in the words of Cheyenne informants, ranging from the crime of murder to breaches upon domestic relations. The authors adopted the inductive case-method of American law schools as an exploratory technique to probe Cheyenne jurisprudence. Because the tribe had a non-literate culture, it was necessary to resort to extensive field work to find the case histories recorded only in the memories of tribal storytellers. Prior to delving into the cases, Llewellyn and Hoebel detail the historical background, origin, and development of the Council of Forty-four, the tribal council of civil chiefs that was not only the supreme policy-making body, but which also possessed many judicial functions. After discussing the cases dealing with the Council, the volume explores other elements of the Cheyenne legal system as they related to the military societies, homicide and the supernatural, marriage and sex, property and inheritance, and informal pressures and the integration of the individual. The Cheyenne Way created an abundance of discussion in the legal, academic, and North American Indian communities when it was originally published in 1941, and the relevance of this exceptional work endures for members of these communities today
In other words, I have no doubt that the process of deciding upon and administering sanctions was often 'formal,' and that sometimes it was a collective task and in other tribes the role of just one person, even.
yes... It's important to see that Indigenous (for want of a better word) peoples have a wide variety of "authority" structures... notwithstanding that there are also wide ranges of "individual" freedom....
The deeper one looks into different organizational structures of our ancient ancestors, the more complicated and nuanced they become, filled with countless seeming contradictions. For instance, with the right 'attitude' it becomes possible to live in a strongly egalitarian community, even with one designated 'chief' or leader.
Hi Peter, I came across your book on Federal Anti Indian Law at the library. My perception of the law has been chipped away through the initial chapters of the book, and this piece really helps organize my thinking further - particularly about conceptualizing legalism as primarily concerned with maintaining itself whereas intuitively to me, I associated it with some ideal pursuit of justice.
In some ways, I still want to believe because I'm aware of cultures and other countries where outright bribery is part of the system, which feels even more shaky. The part of your piece that I'm struggling with is the fact that it was written 50 years ago. Do you think legal studies as a field has led to the kind of necessary discussion you referenced? Are there any places or niches that you are aware of that are having these kinds of critical discussions? I work in a high school classroom and there was a part of me interested in law school to help fight the good fight, but I'm questioning how much the system can change from within based on this piece and I'm wondering about those niches and any thought or experiments that are sketching out alternatives. I have no knowledge of the landscape and am grateful for any further perspective you can impart.
Thanks for your thoughtful comment... As to your questions: Legal studies seems to have become just another academic field, with some interesting work going on and a lot of typical (for academic success) 'footnote mining'.
There is so much to consider here in the articles and comments !
I could be totally missing your point Peter.
So am prefacing my comments with an apology if I am.
Are we talking about the purpose of and how colonial law and justice serves any Culture?
Do morals and ethics come from culture and language?
Is "law and justice" created from any people's Culture and Worldview?
What are the origins of a Peoples culture and worldview?
Is there a need for cultural and worldview changes to colonial law for colonial law to be able to change how it is exercised?
If yes, will colonial law survive without culturally changing its worldview while we are transitioning from the end of this world and entering anew?
Do people even want it to survive ?
What if all the Creation narratives around the world are truth?
Isn’t the fight over whose creation story is real or not part of the argument?
Are we laughing yet?
In my travels to any place that is occupied by any one of the foreign Colonial govt-law-military forces, Indigenous peoples have affirmed through their own narratives - "The [colonial] Law is Terror Put Into Words".
To resolve conflict or settle disputes, under the pretense that colonial law is "neutral, impartial or unbiased" toward culture is historic and present denialism that is also an act of violence and erasure. Colonial law is not independent from the colonial settler state government of domination nor is there any such thing as a separation of “church” ( colonial laws derived from the Doctrines & Bulls) and “state” being property (by conquest and legal theft) and “state” being of consciousness, morals, ethics that is derived from the Christian worldview and culture.
As I relate to colonial law - the law has been inserted, willingly adopted or unwillingly imposed, as a means to regulate, control and or dominate any (non-christian) Peoples of Culture it can’t annihilate. Cultural “responsibilities” of living in good relation may include restoration and reparation. When cultural responsibilities are disrespected, harmed, broken, interrupted then it is easier to replace responsibilities derived from Culture with “laws” and “finding your purpose”, pledging to uphold the law, to serve the systems of domination’s culture and worldview.
Meanwhile Mother Earth’s dream is a whole different reality.
I don’t know enough about “legal realism or natural law” to know if those words have meanings that are similar to “Lore of the Land, Law of the Land, Original Instructions" and other modern English word translations.
thank you Peter... I'm receiving "provocative" as a compliment. I'm in agreement with John Trudell about this so-called "civilization" and always appreciate meaningful discussion.
dear Peter, Thank you so much for this insightful article. I've subsequently downloaded quite a few articles from that 1975 special issue. I am no law student, but what you articulated is of immense importance for university students to understand the complex underpinnings of any legal system. I also feel that this is essential reading for general education. wish you a happy, healthy and fulfilling new year! Thomas
The Anlgo-American legal system is, first and foremost, a set of processes for resolving conflict, and only tangentially about truth or justice. Complaining that it isn't an open-ended philosphical inquiry shows that you don't understand what it is and how it actually works in society. If your neighbor's tree falls on your house, you need to a way to get him to compensate you before you end up killing each other. It helps if the result is perfectly "just," but it is even more important that it is final.
Your comment is itself part of a 'philosophical' inquiry: i.e., what are the relations among "conflict", "truth", and "justice"? Thanks for contributing it.
Lots of law classes play with those relations... typically before collapsing into the "answer" that a "legal system" is necessary to keep people from killing each other about fallen trees.
FWIW, I've been a lawyer in practice and academia for more than fifty years... I've got a pretty good idea of "what it is and how it actually works". I'm still open to further discussion...
Fantastic article, Peter! Gosh, there is so much here...a certain physician read along my side and substituted the words "medicine" in a number of places where you had law/legal profession.
Mmmm...yep...it was such an easy translation. Our son also read a good bit of the article and resonated! Thank you again for all your incredible contributions! May they ripple out with love and grace and truth!
Question: what is 'legal realism' realist about? I'm used to the term as in metaphysical realism (abstract essences are real), in political realism (basically that power is real and fundamental), and in Christian realism (a variant of political realism but which brings in ethical norms to govern the fundamentals of power politics- associated with Reinhold Niebuhr). Is it related to any of those?
Legal realism was a movement among a group of law professors to look ‘realistically’ at how judges work — not bound by doctrines but deploying doctrines to achieve ‘real world’ results they favored. Jerome Frank and Karl Llewelyn are two important names. (Auto-corrupt wanted to say mages !)
Your question prompts me to do a post about it. Was already considering that. Thanks
I had a long conversation about this with an anarchist on sub - but remember I said I'm not gonna dive unless I'm really led? Not led to go back into that space. Look within.
Here’s what the editors said about the ‘New Year’s issue:
NOTE FROM THE EDITORS - https://heinonline.org/HOL/P?h=hein.journals/latlw2&i=143
AN EYE TO THE FUTURE
This might be called our "New Year's Issue" of LEARNING AND THE LAW. Not only is it the last number of the magazine to appear in 1975, but, more importantly, many of the articles presented here embody the spirit of this time of year. It is a spirit of reassessment, of looking backward and ahead, of evaluating the past and setting goals for the future. …
Some of LEARNING'S readers may be surprised at the extent to which Peter d'Errico, in another article included here, seeks to break away from common modes of thought about legal education. But his paean to the virtues of legal studies programs cannot be ignored. Indeed, some scholars would say it is the voice of the future calling the past to an accounting. …
We are pleased to have you join in this look toward the future. And we wish you a happy new year. -The Editors
My only critique of the critique is that so often the formulation of the antongists to the establishment in the form communism or libertarianism or anarchy are fundamentally anti-God not in the sense of seeing past idols including those of empire and imperialism and legalism but in terms of serving cult interests that are dark in their inverted distortions, often guised as atheism but actually serving the inverted religion that is the opposite of love.
My focus is on opening fundamental discussions, not on promoting an "answer" to end discussion.
And I love that about your way!
It may be a 'step too far' for legal education (perhaps an 'elective' seminar?), but there is one more step. Before 'Civilization' came along and most of us were living in tribes according to our primal instincts, there were no 'laws.' Each tribe's 'sanctions' for behaviors that endangered the stability and connectedness of tribal life were all that were needed. There was no ideal of creating the 'perfect man' (sic). Our 'imperfections' were accepted as a given, and our remedies were seen as 'rehabilitation' not 'punishment.'
Modern religions and their concepts of 'sin' were at the heart of the development of legal systems and codes. We must return to our more ancient wisdoms and 'soon.'
Be careful not to get didactic.... Take a look at "The Cheyenne Way" by Karl Llewellyn (one of the great legal realists) and Adamson Hoebel: https://books.google.com/books?id=E558YZ9C9ogC&newbks=0&hl=en&source=newbks_fb
book description:
The Cheyenne Indians are one of the most famous tribes of the Great American Plains. While they lived a nomadic, semi-pastoral, hunting existence, the Cheyenne still abided by a clear and well-organized legal and social system. In an effort to examine the way of the Cheyenne more closely, authors Karl N. Llewellyn (a specialist in law) and E. Adamson Hoebel (an anthropologist) decided to perform a field investigation in the summer of 1936. The result of their work was The Cheyenne Way, an illuminating study of the guidance of group conduct without violence in a primitive society having no organized government. It presents 53 cases recorded in the words of Cheyenne informants, ranging from the crime of murder to breaches upon domestic relations. The authors adopted the inductive case-method of American law schools as an exploratory technique to probe Cheyenne jurisprudence. Because the tribe had a non-literate culture, it was necessary to resort to extensive field work to find the case histories recorded only in the memories of tribal storytellers. Prior to delving into the cases, Llewellyn and Hoebel detail the historical background, origin, and development of the Council of Forty-four, the tribal council of civil chiefs that was not only the supreme policy-making body, but which also possessed many judicial functions. After discussing the cases dealing with the Council, the volume explores other elements of the Cheyenne legal system as they related to the military societies, homicide and the supernatural, marriage and sex, property and inheritance, and informal pressures and the integration of the individual. The Cheyenne Way created an abundance of discussion in the legal, academic, and North American Indian communities when it was originally published in 1941, and the relevance of this exceptional work endures for members of these communities today
Perhaps we are splitting hairs? Could it be that what you called Cheyenne 'jurisprudence' is what I called 'sanctions?'
yes... you could say that 'jurisprudence' is a type of system for rendering 'sanctions'... :-)
Look what magically appeared on my FB feed, just now:
https://www.kosmosjournal.org/kj_article/deschooling-dialogues-on-initiation-trauma-and-ritual-with-francis-weller/?
I heard you in much (all)?) of this.
In other words, I have no doubt that the process of deciding upon and administering sanctions was often 'formal,' and that sometimes it was a collective task and in other tribes the role of just one person, even.
yes... It's important to see that Indigenous (for want of a better word) peoples have a wide variety of "authority" structures... notwithstanding that there are also wide ranges of "individual" freedom....
We are talking deep dynamics....
The deeper one looks into different organizational structures of our ancient ancestors, the more complicated and nuanced they become, filled with countless seeming contradictions. For instance, with the right 'attitude' it becomes possible to live in a strongly egalitarian community, even with one designated 'chief' or leader.
Hi Peter, I came across your book on Federal Anti Indian Law at the library. My perception of the law has been chipped away through the initial chapters of the book, and this piece really helps organize my thinking further - particularly about conceptualizing legalism as primarily concerned with maintaining itself whereas intuitively to me, I associated it with some ideal pursuit of justice.
In some ways, I still want to believe because I'm aware of cultures and other countries where outright bribery is part of the system, which feels even more shaky. The part of your piece that I'm struggling with is the fact that it was written 50 years ago. Do you think legal studies as a field has led to the kind of necessary discussion you referenced? Are there any places or niches that you are aware of that are having these kinds of critical discussions? I work in a high school classroom and there was a part of me interested in law school to help fight the good fight, but I'm questioning how much the system can change from within based on this piece and I'm wondering about those niches and any thought or experiments that are sketching out alternatives. I have no knowledge of the landscape and am grateful for any further perspective you can impart.
Thanks for your thoughtful comment... As to your questions: Legal studies seems to have become just another academic field, with some interesting work going on and a lot of typical (for academic success) 'footnote mining'.
That last quote is inspiring “The better the society, the less law there will be.” Kind of like, the sabbath was made for man and not the other way.
It’s my favorite quote about law
There is so much to consider here in the articles and comments !
I could be totally missing your point Peter.
So am prefacing my comments with an apology if I am.
Are we talking about the purpose of and how colonial law and justice serves any Culture?
Do morals and ethics come from culture and language?
Is "law and justice" created from any people's Culture and Worldview?
What are the origins of a Peoples culture and worldview?
Is there a need for cultural and worldview changes to colonial law for colonial law to be able to change how it is exercised?
If yes, will colonial law survive without culturally changing its worldview while we are transitioning from the end of this world and entering anew?
Do people even want it to survive ?
What if all the Creation narratives around the world are truth?
Isn’t the fight over whose creation story is real or not part of the argument?
Are we laughing yet?
In my travels to any place that is occupied by any one of the foreign Colonial govt-law-military forces, Indigenous peoples have affirmed through their own narratives - "The [colonial] Law is Terror Put Into Words".
To resolve conflict or settle disputes, under the pretense that colonial law is "neutral, impartial or unbiased" toward culture is historic and present denialism that is also an act of violence and erasure. Colonial law is not independent from the colonial settler state government of domination nor is there any such thing as a separation of “church” ( colonial laws derived from the Doctrines & Bulls) and “state” being property (by conquest and legal theft) and “state” being of consciousness, morals, ethics that is derived from the Christian worldview and culture.
As I relate to colonial law - the law has been inserted, willingly adopted or unwillingly imposed, as a means to regulate, control and or dominate any (non-christian) Peoples of Culture it can’t annihilate. Cultural “responsibilities” of living in good relation may include restoration and reparation. When cultural responsibilities are disrespected, harmed, broken, interrupted then it is easier to replace responsibilities derived from Culture with “laws” and “finding your purpose”, pledging to uphold the law, to serve the systems of domination’s culture and worldview.
Meanwhile Mother Earth’s dream is a whole different reality.
I don’t know enough about “legal realism or natural law” to know if those words have meanings that are similar to “Lore of the Land, Law of the Land, Original Instructions" and other modern English word translations.
wow! .. very thoughtful and provocative (of further discussion)!
The target of my essay is the existing 'legal system' that dominates lives and excuses that domination as 'necessary' for 'civilization'...
You've pretty much placed it in context.
thank you Peter... I'm receiving "provocative" as a compliment. I'm in agreement with John Trudell about this so-called "civilization" and always appreciate meaningful discussion.
dear Peter, Thank you so much for this insightful article. I've subsequently downloaded quite a few articles from that 1975 special issue. I am no law student, but what you articulated is of immense importance for university students to understand the complex underpinnings of any legal system. I also feel that this is essential reading for general education. wish you a happy, healthy and fulfilling new year! Thomas
Good to hear from you! Glad my essay is useful!
Best wishes to you also!
peter
The Anlgo-American legal system is, first and foremost, a set of processes for resolving conflict, and only tangentially about truth or justice. Complaining that it isn't an open-ended philosphical inquiry shows that you don't understand what it is and how it actually works in society. If your neighbor's tree falls on your house, you need to a way to get him to compensate you before you end up killing each other. It helps if the result is perfectly "just," but it is even more important that it is final.
Your comment is itself part of a 'philosophical' inquiry: i.e., what are the relations among "conflict", "truth", and "justice"? Thanks for contributing it.
Lots of law classes play with those relations... typically before collapsing into the "answer" that a "legal system" is necessary to keep people from killing each other about fallen trees.
FWIW, I've been a lawyer in practice and academia for more than fifty years... I've got a pretty good idea of "what it is and how it actually works". I'm still open to further discussion...
Fantastic article, Peter! Gosh, there is so much here...a certain physician read along my side and substituted the words "medicine" in a number of places where you had law/legal profession.
Oh! I like that!
Mmmm...yep...it was such an easy translation. Our son also read a good bit of the article and resonated! Thank you again for all your incredible contributions! May they ripple out with love and grace and truth!
Peter- wow!
Question: what is 'legal realism' realist about? I'm used to the term as in metaphysical realism (abstract essences are real), in political realism (basically that power is real and fundamental), and in Christian realism (a variant of political realism but which brings in ethical norms to govern the fundamentals of power politics- associated with Reinhold Niebuhr). Is it related to any of those?
Legal realism was a movement among a group of law professors to look ‘realistically’ at how judges work — not bound by doctrines but deploying doctrines to achieve ‘real world’ results they favored. Jerome Frank and Karl Llewelyn are two important names. (Auto-corrupt wanted to say mages !)
Your question prompts me to do a post about it. Was already considering that. Thanks
Will look forward to said post!
Check out "Killing the Priest King: Addressing Egalitarianism in the Indus Valley"
See: https://peterderrico.substack.com/p/the-dawn-of-everything-a-new-history
An analysis of The Dawn of Everything: A New History of Humanity, by David Graeber and David Wengrow (Farrar, Strauss, and Giroux, 2021).
I can't read it G
That was the one section of your book I could not read for intuitive reasons.
the link is a separate substack post
I can’t read anything from Graeber
I had a long conversation about this with an anarchist on sub - but remember I said I'm not gonna dive unless I'm really led? Not led to go back into that space. Look within.