Karl Llewellyn: "Marriage and Family" Classroom Lecture

Karl Llewellyn taught at the University of Chicago Law School from 1951 until his death in 1962. In this undated classroom recording, he takes an often light-hearted look at the implicit legal structures within what was at the time considered the "typical" American family.

Transcript

Speaker 1 (00:00:02):
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.

Karl Llewellyn (00:00:23):
Time out next Tuesday, for questions that may occur on any of the lectures or the recent assignments of reading. In the meantime, as we recur to the problem of the government and the law problems of the family viewed as a unit with its own law problems. The first thing that stands out while we are still dealing with a two sovereignty Federation is the absence of any officials to whom one can turn for authoritative decision about points of either facts or law. In some of our communities, notably those in which the family is in close integration with some religious organizations, you find such an authoritative person called on not infrequently. That I think is certainly true in three types of church. You find it repeatedly among Roman Catholics, you find it in very much stronger forms among the Amish, and I think you'll find it in a rather highly developed form among the Mormons. Where you are likely to find an outsider to the family, assuming power on call at least, and sometimes without call to regulate a dispute and give an authoritative answer with a good deal of weight behind it. In the main, however, the American marriage knows no such group or person, no official who is there without consent of the parties after the dispute arises.

Karl Llewellyn (00:03:04):
The situation of the old fashioned arbitration in the business or labor field where you don't agree upon your arbitrator until after the route is on and are likely therefore not to agree when the route has gotten tough and seems to cut to the juice. There will, however, even where there is no official, typically develop some type of procedure. Not crystallized in language too frequently, but reasonably felt and within reason followed in regard to the handling of disputes. Some type of bringing the matter to discussion and of attempting to work it out.

Karl Llewellyn (00:04:01):
This is likely, being a matter of growth or of invention, largely unplanned, not based upon juridical experience, confused by emotion, and completely in the absence of that wonderful service of the lawyer to litigants. They provision of a buffer between the aggrieved parties inside the family, as between a newlywed husband and wife, that buffer function you see is absent. And so far as either side becomes an adequate lawyer at all, he or she is likely to be an example of the ancient proverb "the man, who is his own lawyer has a fool for a client." The buffer function, not being there, it is doubly difficult to work out procedures. Nonetheless, we find that in marriages which lack such procedures are worked out, even though no official is found. A procedure, not only for some type of hearing an airing of grievance or trouble, but some type of legislative or judicial procedure for settling it one way or another to moderate satisfaction.

Karl Llewellyn (00:05:44):
And nowhere does one more clearly see the bare bones character of grievance adjustment machinery than in this formative family. And one sees it very clearly because either this machinery is built or there ceases to be the group. Bare bones indeed. The group ceases to be today in a way in which it didn't cease to be a hundred years ago, our divorce rate having been an amazing process of rise except for a momentary post-war peak that had to come back to normal. We're still however, with an estimated a rate of 2.4 per thousand population. Booming along when I made my last study of divorce at some length back in 1932, the alarming figure of 1.6 per thousand population had been reached. She's moving on, she's moving on. And it indicates again, the importance of adjustment procedures. Well, we do not stop with that because we have, at this point, worked out the best pay dirt in the pure two person group.

Karl Llewellyn (00:07:40):
For further illumination of the problems of the institution of law, one turns to the more than two person group. There is added by the processes of nature and the grace of God, to many families, a third, four, fifth, or other person who presents a new situation. New in many, many ways. And I referred yesterday at the close of the hour, last week at the close of the hour, to the problems of jurisdiction in control, which that introduced. Notice that I could hardly speak of jurisdiction properly without having first pointed out that the problem of the official in charge of dispute, in charge of grievances, in charge of order enforcement is given. Officials are there to whip. The poor little angel is faced with two, outnumbered from the start. And the problem of jurisdiction only arises as between those officials into whose control the child is born.

Karl Llewellyn (00:09:18):
What's the matter of jurisdiction, however, develops into the most interesting ramifications as the family grows. You discover, apart from the difference between the court of pa and the court of ma, which are two quite distinct courts, as we know. Sometimes there is the Europeans call a plenum. A term known also to our appellate courts sit in division. For example, the Supreme court of Washington sits in two divisions of four each, but everybody wants to know why they all get together to a big session, a plenary session. Because the two divisions, for example, have divided or the situation seems to be of such transcendent importance or difficulty. You also have in the family, the plenary session. Not pa's court and not ma's court, but the court of us, all of us sitting. Normally it's pa's court and normally you will discover a certain specialization of function at that point.

Karl Llewellyn (00:10:42):
Ma appears either as prosecutor or as counsel for the defense before pa's court. And it is quite unpredictable in advanced as to which she'll be. Typically she is prosecutor when she is invoking pa's authority to support her own. Typically she is counsel for the defense when pa moves of his own motion and rarely, but increasingly as children grow older, you may find an appeal to pa's court brought by the child. It pays to recognize that all three phenomena are familiar to us in this setting. Now, I'm concerned by watching a further jurisdiction develop. By the time you get to have three children in a family, you are going to find a jurisdiction, a petty jurisdiction, of interstitial and sometimes quite permanent character in the hands of the eldest child deciding cases between the two youngest and sometimes taking over a subsidiary criminal enforcement power to keep things from getting into the hands of the elders who move with so little understanding of true justice and essential needs.

Karl Llewellyn (00:12:31):
So the things are much better settled up out of their sight and hearing. You get another type of jurisdiction, which I just paused for a moment to mention, the polity known as the children. In Toto, a sub group now of a federated state but second class citizens, of course, because they have not got full control. Nonetheless recognize themselves as a subject people and recognize their unity and that capacity of anybody has failed to observe this observation of children. And you will discover that when they have a diplomatic mission to be undertaken with the highers, in fact, empowered petitioning the government for redress of grievances is a term used among adults in this country. When they have such a thing, you will find themselves choosing a representative and you will find that the representative whom they choose is chosen typically with a good deal of skill. It may be the oldest, it may be the best talker, it may be either the boy or the girl of the group, because either the boy or the girl of the group being a single one has a particular in with the powers that be. It may be the baby because the baby has been favored into whose hands will be put in the petition. Again and again, the sharp eye will observe the children who are gathering in the background after which the ambassador appears.

Karl Llewellyn (00:14:30):
This is all, you see, a question of government arranged consciously and of the allocation of the say, which is the meaning of the term jurisdiction. Now moving from jurisdiction over anything from piecing through to the initiation of legislation, and indeed the initiation of new policy by leadership. I want to turn to a little comparison of the criminal law side and the civil law side of the family as it affects the children. And I note that the greatest event that you would find pretty much the same thing going on in primitive society. And I note also that the general run of writers about primitive law or ancient law are completely off base and never should have gotten their observations into their head if they had studied the families in which they grew up and the families around them. It is perfectly obvious that all the noise to the effect that criminal law is undeveloped in primitive society is nuts. Complete nuts.

Karl Llewellyn (00:15:59):
Criminal law is as basic in primitive society, as it is in any society which depends upon the peace. You will find it immediately in the family as the foundation of the law of the family. In the first place, I suppose there are the safety rules, which I shall turn to. As soon as a child can toggle the safety rules, which today become rules of a power and vigor, completely unknown a century ago. I take at any rate the rule about not going out of the yard or not going into the street where automobiles are is a rule which starts off at once, the minute a child can cuddle. These days and with every reason behind it, it then moves in from flat prohibition. Which are prohibitions, even when they're put in positive form, but nobody's fooling himself into thinking that stay in the yard is a positive command. Anybody that thinks that doesn't know children, he has misled by language and deserves to be taken out and hung by his thumbs until he observes a child or two. That is a negative rule, meaning don't go out! And its whole value lies in its negation. The positive side is found only in so far as you make the yard attractive. This is a positive operation. That's all I want to stay with that. I just don't like to have people confused when they are dealing with the taboo system.

Karl Llewellyn (00:17:56):
You find your taboos now implemented to a very considerable extent by rules looking to effective administration. What a difference there is between "stay off the streets" or "don't go in the street" and the rule "grab a hand before crossing the street."

Karl Llewellyn (00:18:22):
Something that implements itself in clean operations and at the same time has the negative command implicit if there be no hand to grab. Then you have the type of insistence. Which is basic to all good law as distinct from mere unreasoning, command, prohibition, or other rules. Does the reason control? Again, surely nobody who knows children thinks that the reason controls. The reason that the child stays off the streets is because the command and enforced and followed up by constant vigilance-- lord, the vigilance that is required to finally get that habit built-- produces a habit based by an unreasoned command. The results of which are suck, suck, suck. And if Angelo Petrie raises children any other way, the answer is in the main, he doesn't get them raised. Angelo Petrie's happy advice is given to other parents about how to make the little dears stay off the streets. I'd respond to Angelo. I think he is a lovely man and does much good, but he knows absolutely nothing about what to do with little boys who kick other little boys in the teeth.

Karl Llewellyn (00:20:28):
Nonetheless, the drive for the reason makes its dent in due course. And as it does, it does it along two lines. And each of the lines is fundamental to an understanding of the introduction of new types of legislation into adult society. To understand the reasoning is to greatly reduce one urge to kick over, to reduce one's resentment at the control and one foot dragging about the control. The passive resistance, slow movement type of response is greatly reduced if you understand the reason and it makes sense to you. This is going to be true everywhere just as it is with children. The second thing about the reason is that the reason if given, understood, and approved reaches forward to cover, to some extent, the unprovided case, the case that isn't in the rule but is within the reason of the rule.

Karl Llewellyn (00:21:56):
And that is a matter of tremendous value in any type of flexible situation in which new possible aspects of the thing essentially gunned for turn up. To always accompany rules with a reason and with serious effort to make that reason understood and approved is to introduce a regime of effectively flexible law that can adjust to some extent automatically to meet new situations. Whereas the type of operated rule, which is merely in terms of content, is a rule that invites literalistic interpretation and, in due course, evasion or confusion where the rule has not been worked out in advance to handle the necessary situation. This is something that anybody who raises a family knows, or who watches the raising of a family with intelligence. And it's just as applicable to the big society, as I said before, as it is to the little one. So that the conception of answering that terrible and recurring question: "but why" with other phrases than "because Papa says so," is a soundly based juristic device, not nearly a soundly based educational device. Beyond the safety rules which are fundamental, we come to the general order of the group.

Karl Llewellyn (00:24:06):
The whole positive regime, the timetable and the calendar, matters which as we know, are of tremendous difficulty to break children into. The regime of slowly learning to dress oneself, the patience it takes to let that little boy sit there for three minutes and a quarter putting on one sock when it would be so easy to get the damn sock on. And yet the vitality lasting it out and getting that sock self put on, today, looking forward into the future for that resilient young pup who will deal with any type of situation that comes up even a sock that is turned the wrong side too. We know it's tough, but the building of that kind of order is a slow job. The phase of the building of an order, which in due course is going to come along, that we know is chores. Which, I shall recur, is later in my picture but I want to mention it here. And I'm going to concentrate for a moment upon the eating aspect of the raising of the children because they're so much more clearly than in most other phases you can distinguish substance from form. The substantive content of your rules from the procedure. In eating, above all other places, see sharply, the difference between whether you get the spinach inside you and when and how.

Karl Llewellyn (00:26:26):
And we recognize in the eating field, as we do in few other phases of family law, how vital procedure is as distinct from substance and how vital substance is as distinct from procedure. Now, of course, when you come to the law, you'll find exactly the same thing. What good are your substantive rights if you can't make them real? What are you to do, even with substantive rights and a beautiful system of procedure if, let us say on the one hand, your judges are crooked. On the other hand, it costs you three times the amount that the suit will bring in the to hire a lawyer to win it for you, even if he can get by the crooked judge. We go in the field of law, in a word, a step beyond the picture of the substance and the procedure. We go into the question of turning the procedure into actuality.

Karl Llewellyn (00:27:30):
And if you want to analyze your children's situation a little bit further, you can see the same thing there. I think what's good is the finest of diets and the most beautiful training and table manners. If the little kid won't eat, if it becomes a question of just plain refusal to abide by the rules, for whatever reason-- and any of us who has had any experience with children knows that there are those whom you consider in this matter and there are those whom you can't. There is the child who will respond to "a bite for Daisy and a bite for Mommy and bite for Daisy and a bite for mommy" and then there is the time to simply look away. These are problems of the character and the willingness of personnel which you need in addition to the sound rules and substance and the sound rules and training in procedure. All of these things you see spread out for your observation, the entire problem with the legal system, right before your eyes. Again, your eating situation is both positive and negative.

Karl Llewellyn (00:29:00):
It is not only the matter of what to eat but what not to. There is this matter, the between meals matter, for example. And I take it that it is primarily on the negative side that we find the eating situation in the family moving into the phase of monopoly control. Monopoly control, something that we also know in our larger society. Some activities and services are put into monopoly control. We call them in the main public utilities. I take the feeding in the family, especially in regards to the children, to stand primarily on this ground. And I think the first point, again, as in the case of so many monopoly control matters, has to do with health. We don't want the children fed outside because we don't know what they're going to get, or when they're going to get it, or how much they're going to get.

Karl Llewellyn (00:30:03):
We can't keep track of it. The good rule is only eat at home so that we know what is going in to that particular little furnace and can make adjustments accordingly. Furthermore, we know as a practical matter that the type of food likely to be got abroad is not, on the whole, the best food for the little furnace. It's likely to have too much of the sweet in it. It is likely to be food provided for the purpose of producing an affectionate response to the feeders. And that is almost always sweet when it's children and our American children eat about four times the amount of sugar they ought to have per capita anyhow, so we're worried. Now observe how close to the public utility situation the monopoly of feeding in the family is. What's the first rule of a public utility? It's reasonable service to all.

Karl Llewellyn (00:31:18):
And how about family feeding? Doesn't the rule apply? The next rule of public utilities is for a reasonable rate. We don't buy food in the family as a rule, but as soon as the kids get big enough to think and respond to speak, we find that they pay their way on food to a considerable extent by appropriate behavior. And the food takes on, in part, the effect of reward for job done in the way of appropriate behavior. There even was a barbarous type of approach to this matter in our older days, not so long gone when the penalty for non payment of your public service bills by reasonable behavior was to go to bed without your dinner.

Karl Llewellyn (00:32:26):
And still, so far as I am informed, it is not unusual in the American family which has discovered that going to bed without dinner is not good for one's health, it is still not unusual to find the child who hasn't lived up to his obligations of paying a proper amount of proper behavior going to bed without dessert. Not the rest of dinner, but the nicest piece of dinner that piece of dinner that is most welcomed. That service is cut off by the telephone company or in this case, the monopolistic control of feeder. What interested me even more is the introduction in this food field handled as a monopoly of the certificate of convenience and necessity. You are aware that nobody can get into the public utilities field without a certificate of convenience and necessity from the public utility commission. You can't simply go out and start a taxi line in Chicago.

Karl Llewellyn (00:33:45):
You've got to get your approval from the commissioner. You can't just go and build yourself a railroad and run it. Now, these things will not do. By the same token, you will observe that whenever there is an occasion or it's a certificate of convenience and necessity, the monopolizing parents in the food line give one. What they do is to say, "now children, remember, do everything Aunt Sally says." They go out and Aunt Sally controls the food and is supposed to have control over what you get to eat. The certificate of convenience and necessity has been issued and a new monopolist has taken over in substitution for the old. Again, not one more piece of the general order, the one that we call the peace.

Karl Llewellyn (00:34:50):
And here I am particularly interested in the way in which the criminal aspect, which is the peace, outweighs inside the family all civil aspects. And this, I think, you will find to be almost universal in primitive societies. Take first the personal tort. Freddy hit Robert, Robert hits back. If he's big enough, otherwise he yells like hell and raises a criminal problem. But if Robert is big enough, what he does is to sock Freddy. And what is the action of the authority? The first action of authorities is to intervene and stop the feud. It is a straight, simple, primitive feuding style, is it not? You killed my man. I kill your man. In the child event, it is you hit me, I hit you. And every time I hit you, it is my business to hit you harder than you hit me.

Karl Llewellyn (00:36:11):
So that makes a counter-grievance and you hit me still harder. Now, this is the feuding principle again, I do not stop after you have killed one of my family by killing one of your family. When I've had one of mine pilled and know who did it, I'd go out and clean up what I can get. This leads you to go out and organize a real fight on my book. And so she builds up until you have the regulation of the feud by intervention of outside folk and the limiting to life for life. And beyond that, the limiting or the attempt to introduce the composition or some other style of reduction of the fight. So would the children and the authorities again, move in at once in terms of peace. And what's the importance of the peace? In terms of bare bones and surplus energy, if you've got all day and if this is the first time today, you will listen to the long drawn out story of who did what and how it all came to be and try to work the thing out.

Karl Llewellyn (00:37:34):
But if you haven't got all day and you are so tired, if you do not know which end you're standing on, and this is the 45th time that it's happened today, when Robert says "he hits me first," you say "that makes no difference, be quiet!" And the martial law, which pays no attention to hearing or justice, but only to the maintenance of peace in emergencies, comes to bear. Anybody can understand martial law who can look at that and see what it means. It means that the peace is your bare bones basis. And that a matter of private rights must yield and even the matter of justice and fairness must yield when the pressure is sufficiently great.

Karl Llewellyn (00:38:39):
You make quarrel in the family as you do in public life. As to whether it was wise or reasonable to proclaim martial law, whether the emergency was great enough to make it a good move, but you can't fail to see what the move is for nor can you fail to see what its effect is in putting the mirror piece above all these other things. I am interested also in observing that, when you get into the matter of the personal tort, the absence of much in the way of property among children and the absence of an established system of disciplined service makes it almost impossible to do what you can do in an adult society. And that is provide money, chattel, or service indemnity for a grievance. This is pretty well ruled out the conditions one admitted. And in so far, as it's ruled out, the child society differs, therefore, from the adult society.

Karl Llewellyn (00:40:04):
You are driven back to some type of penalty inflicted by a therapy rather than to indemnification. Or you will frequently find the drive for indemnification coming in, in any way in which it can be made to come. If there is surplus in control of the authorities, there may be indemnification out of the public fund. The toy has been broken. It has been broken improperly by one of the other children. The toy is replaced out of uncle Sam's pocket. Out of papa's is one possibility. If you have gotten your children along to the stage of allowances, you will frequently find property damage partly made up by a partial or complete indemnity out of the allowance of the grievance. Nonetheless, those are not the type procedure. The type procedure is the resort to the criminal law of the family, because there is no other way of getting results.

Karl Llewellyn (00:41:30):
Now you do get, in another type of tort, a very close approximation to the adult society. Oh, I may say in regard to criminal law's larger tort. One must never forget the drive toward rehabilitation rather than toward vengeance in the family. Even when the vengeance drives the punishment aspect, there are two. One is retribution-- you've done it, you must get it. One is vengeance-- you have committed lazio parentis and because of your reach of the peace of the parents, you are by vengeance, you have affronted the authority. In addition to those and however much they are there, there is always somewhere in the parental picture, a heavy drive toward rehabilitation of the offender. Come back in. Be good.

Karl Llewellyn (00:42:43):
Be a good boy again. Tell Papa that you're sorry. All right. Let's shake hands. You are readmitted and affirmed in your readmission. That's always in the foreground in our modern criminal law, you will recall, we are struggling slowly, slowly, slowly toward getting that back after having been away from it for at least two centuries. We regard it as highly moderate to see our criminal law that way. This is advanced. This is something that our criminal law system mostly can't take. The minute we get somebody in charge of a correctional institution who tries to do this kind of thing, we have a new election and a new governor who throws her out and puts back in one of the old ones because it's happening there and it doesn't good for the goddamn criminals to be babied anyhow. In the family, in a word, we are well ahead in our criminal logical objectives and the main. Well ahead of where we are in the larger society. There, the larger society can learn from the little one.

Karl Llewellyn (00:44:18):
I said that in the matter of other types of torts, however, you had those close resemblances and this holds particularly in regard to aggressions against property other than destruction. We do get the toys sorted out again. And I call your particular attention in regard to the sorting out of toys to our anticipatory measures. Early in the development of a family, the parents learn that it simply doesn't pay-- if they can avoid it-- to introduce too heavily unbalanced property holding. And you start with some kind of move toward equality, get them each a boat, get them each a kite, get them each a doll. Equality as always yields, as it should, to equivalence in a more sophisticated setting. A doll for a Jenny and a boat for Bob. Or if Bob has reached the age of roller skating and Jenny hasn't Bob will get skates and Jenny will get a scooter.

Karl Llewellyn (00:45:54):
You have equivalence, but the drive is terrific to introduce as a matter of policy. Property imbalance, avoiding the great difficulties that face the larger society where generations pile upon generations and the fit in a monetary society acquire a position of power, prestige, and general control of things, which the so-called leftists don't have with results in problems. The results in regard to American foreign policy should be moderately obvious. The power in this aspect behind Bill Douglas's approach to our relations with the land-hungry poor as against the very well-mannered large landlords in any country with which we are dealing is something that one good learn ideas on from observing what goes and works effectively in the family. Of course, there are no communist emissaries dealing with the disadvantaged children in the main but there are other emissaries dealing with the disadvantaged children when we play favorites inside the family. And I think you will discover that a very fair quantum of children who are in decently discriminated against in these matters will raise you their much more than normal percentage of trouble by delinquency.

Karl Llewellyn (00:48:03):
So reclamation of the grab, the setting up of turn in things which are of their nature, too big to be individually disposed of. The desperate, slow effort to build up a desire in little Charlie to let other people play with his toys. Oh my, oh my, oh my, the chorus of oh's and ah's, futilely expended, which one goes through as Charlie doesn't learn how much fun it is to give rather than to receive. Nonetheless we labor at it and, plainly, we have their jobs which look into a long range policy in the handling of things. And we can match those long range policies in the big world with no trouble at all. I have time today to stop and go on to one more problem, which raises trouble because of the conflicting policies involved in it, and to come to a place where the drive inside the family policy itself are at odds with each other. Not ideas of the parents at odds with ideas of the children, but competing or conflicting goals in the science of the politics.

Karl Llewellyn (00:49:49):
I refer to the problem known respectively on the one hand as tattling and on the other hand as decent support of law enforcement. This is a problem of course, which again, bears directly upon adult life. The mores of anti-tattling are strong in all of us. The need for enforcement and enforcement help from the general public is vital in the criminal field of the large world, as it is in the criminal field of the small world. I suppose that the way our family works out the matter of tattling is largely by way of of awakening a child to questions of motive. If you tattle for meanness, if you tattle for personal advantage, if you tattle to get the other person in trouble, that is tattling. But if you give evidence for the good of the whole, and it's honest to goodness for the good of the whole, that is law enforcement and I suppose that there was some attempt to work that out that way.

Karl Llewellyn (00:51:21):
I don't think many do the immediate application of it, to me, is to the introduction or use of an honor system in regard to examinations in a law school. Where I find no honor system in a law school, I find what is, to me, an affront to professional decency. Men who are supposed to be the guardian of justice and the staff and officers of the machinery of law and law enforcement, lying down on the job, of doing a thing for themselves, forcing themselves to be pleased by a bunch of tactics and lay persons who supposedly are about to go to the bar to defend the honor of other men and to enforce the law for all of us. This, I think, is a family. I have however, lived most of my life in schools in which this scandal prevailed. And I have never failed to raise my voice against it. You'll observe, that in essence, the objection to it lies in dereliction of decent responsibility of citizenship. I do not wish the burden, says the ordinary student, of picking upon myself. Indeed, observations of children and the legal system of the family sheds light upon the conditions of our adult groups and law.

Karl Llewellyn (00:53:27):
[...] was that when a parental taste of law structure and law institutions, there was likely to be hell to pay. The historical situations that remind us of that are the ones that come down to us in the book as pyramid using the term not in the original Greek sense, which I take to have meant nothing but a gentleman who made himself a sole ruler. But using it in the sense later attributed to the conception of a sole ruler were based on experience to which it worked out in a rather unhappy way for somebody due to the failure of the parental ideal to realize itself in the person of the ruler. Or for that matter, in the persons of the ruling group. Of course we're thoroughly with that in the family. Indeed, we are so familiar with it that we have been forced to step in to regulate the family, to lay down limits beyond which the officials of the family may not move the punishment, the good old word used not to be punishment, you remember. The good old words so typically illustrating the parental approach to life was correction.

Karl Llewellyn (00:55:37):
Correction can no longer be administered with the figure with which it once could or the state steps in to restrain the parents. We have had the examples in the newspapers within three weeks of the state stepping in where parents have gotten out of hand along such lines. We also lay down today certain minimum requirements in regard to general treatment and control. We refuse the parents, the ability today to keep their children from schooling and insist that in one way or another, a modicum of schooling shall be either provided or permitted. But evidently there is a degree of interference of laying down limits, which partly recognizes our society's judgment, but we can't completely trust the parental governmental structure in terms of some parents as the officials thereof. Much more so, however, you see it in situations inside the family in which no governmental interference would be thought of.

Karl Llewellyn (00:57:05):
Take the curious phenomenon, and the unhappy one, of the precedent disregarding terror. Today, you make a rule tomorrow to disregard it. Day after tomorrow, you make a new one and the day after that, you disregard that. And the poor kid who's very mental health depends upon a modicum of recognizability in the regime sits there completely at a loss as to what's going to happen. There you see the drive, the tremendous drive of the human being toward pushing towards some type of regularity in the governmental regime and you begin to understand the psychological reasons and the sociological reasons that lead to the truth of Maitland's famous dictum. Which I forget the exact phrasing of so I will give it to you twice. He only said one of these, but each is just as true as if he'd said both. "Law is secreted in the purposes of procedure" is, I believe, what he didn't say. I think he said, "Liberty is secreted in the interstices of procedure." You are, I am afraid, too late. But I will not throw you out today because I have to talk about the examination. This is a matter of grace and not of right, be thankful.

Karl Llewellyn (00:59:08):
Each one of these is true and it depends upon two things playing together. The one is the tendency inside of most persons, the basis of precedent, which does not depend upon outside pressure and doesn't even depend in first institutes upon pressure of country. But depends upon mere arrangements of the little Synopsys. It's easier to do it over again the same way than it is to do it differently very frequently. And a little bit later, when you get started doing it over again in the same way, and somebody else's interests are involved, it begins to be uncomfortable if you don't do it over again, the same way. And consciously depart, on the one occasion, from the fellow on the other end has some reason to think is fair because that's what was done last time with somebody else and it is not comfortable to be a respecter of persons.

Karl Llewellyn (01:00:16):
And finally, there's the pressure upon you, first of the public who watch you. Nothing in a parental system of law is more revealing than the story from the Arabian nights, which I have already recommended to you and, once again, recommend. The story in the Arabian nights of how the Sultan or Caliph's favorite sister gets around him to induce him to do that which he ought when he is feeling as if he wants to do something else, which is unjust because it is not an even line in terms of prior practice. And what the the favorite sister, always does is detect the Caliph at a moment of repose when he is feeling good because he is full of food. And then she puts to him a hypothetical, and her voice drips a little with quietly restrained indignation as she puts the hypothetical. "Get over here!" says the Caliph.

Karl Llewellyn (01:01:36):
And then says the favorite sister, just as Nathan did today and set against his own picture of what is kingly and kingly because it is right and right because it is just and just because it is even handed. Set against that picture, the Caliph pulled himself up, snorts, cusses, and does what he is supposed to. This is the story and there is tremendous human truth in terms of a man's picture of himself and it applies to parenting too, as we well know. Nonetheless, every once in a while, they get out of hand. It's a terrible thing when you see it. And in one of the New Mexican pueblos, which have as highly developed a parental type of government as I've ever seen, there was rebellion. A group of dissidents, seditious-- what shall I call them?-- subversive.

Karl Llewellyn (01:02:49):
A group of subversive youngsters were getting tired of the complete control of the Pueblo by the old men. And especially by those old men who had worked up to senior position in the secret religious society. These subversives attempted to invoke in their behalf, some of the ideals of the culture around them. One man, one vote, for example, elect your offices and the like. And we had, as a result of that, about seven years ago, two cases of petty larceny in that Pueblo, which came before the public counsel for judgment. The one case of petty larceny, it involved something like $15 of value and I think in that case, it was money. The one case was looked at and was treated in typical Pueblo parental fashion. Confession was elicited. On his knees, the culprits swore to be good and he was let off with the understanding that he was gonna be good. He of course, made restitution of the $15. He was a fellow who was a firm and staunch adherent of the government practice. He was what we know as a safe man. The other guy who had only been guilty of a questionable set, that is, the facts are not so clear. A questionable fact of an amount not exceeding $5 got 10 years.

Karl Llewellyn (01:04:59):
That is, they tried to give him 10 years and he would have got 10 years if there hadn't been intervention from outside. His trouble was that he was a subversive. Now, here you have illustrated in modern time, in a contemporary situation in which we have all the facts. Here you have illustrated the basis for the entire body of our constitutional Liberty. It was that kind of treatment of the gentleman whom the tutor government didn't approve of. It was that kind of treatment of the gentleman whom the government found objecting to its behavior, which is the foundation first for the petition of rights and then, in due course, for the bill of rights in our own constitution. The fact that when in a parental type society defection or offense takes the form, essentially, of attack on the government prerogative. It is the fact that then the machinery of the criminal law, invented for the purpose of peace for all, is likely to be turned to putting down the opposition and removing them from a position of effective subversion, not of the state but of the existing ins.

Karl Llewellyn (01:06:58):
It is that fact that makes constitutional liberties, constitutional guarantees, and the whole body of law associated therewith-- which is not constitutional, not all of it-- take on vital meaning to our politics. It is at this point that those types of legal institutions which are non parental begin to show their purpose and their value. They can cost us terrifically. They do cost us terrifically. I have no time here to go in to the perfectly outrageous weight involved in our polity and repression of crime which we owe to our civil liberty protections. It's perfectly possible to get the essence of the protection without that waste. We haven't worked it out, but what is clear that the civil liberty protections has their juice and point, and you can only see their juice and points full tilt in a parental type system gone wrong. You don't have to look outside of the family to see it either.

Karl Llewellyn (01:08:27):
When pa thinks that you're doing is to wonder there pa's prerogatives, and that begins to control what he does instead of the problem of what ought to be done under the law of the family apart from pa's prerogatives, you can have it at home, just as well as you can in the Pueblo or in any historical tyranny that you care to call them. Know that in our own polity, a great deal has come in, has indeed snuck in, of the way of constitutional guarantees under the concept of due process. The notion, for example, of requiring the offense to be described in advance of the penalty infliction, or of the doing, is explicit and the ex post facto provision. But the notion that you are to be gone after for a particular offense is only in the due process provision in implication that you are not to be gone after it just because you are a nasty man.

Karl Llewellyn (01:09:49):
There is grounds for thinking that a system of criminal law could get great puppets out of looking around for a nasty men. And there is grounds for thinking that a fair amount of the actual enforcement operations of our system are based upon the supposed nastiness of the fellow on the enforcement end, the receiving end of enforcement. One does not understand, for example, prosecutions for perjury only where the testimony is against the interest of the prosecution unaccompanied by prosecution for perjury when the testimony is against the interest of the accused. One does not find that in term of other, essentially, than nasty persons being got at. And when you're late fellow citizen Al Capone was gone after for income tax evasion, I do not believe that it was primarily at the instance of the treasury seeking to collect taxes. The belief among the general public, which I share, is that he was at that time regarded as a very nasty man and inadequately dealt with by local law.

Karl Llewellyn (01:11:13):
And that that led to the intervention of the federal authorities under what was then thought of as a useful excuse. So that we find and perhaps repeatedly with reason that the nasty man concept in the picture with us too. Nonetheless, it is matters yet our type picture. At this point, you see how violently and vigorously you depart from the picture in the family with its parental approach. When the nasty boy is up before pa, his evidence carefully confined to the taste at hand, the alleged broken window broken at 2:37 last Tuesday, huh? Pa opens the hearing with "so you've done it again!" Even by contrast with the family, we learn and learn much about the nature of our system in the greater society.

Karl Llewellyn (01:12:30):
Note now two or three things about this matter of personnel and the pressures upon them from the group. Note what we have already seen-- the drive toward repetition. Note now the drive toward another phase of law administration without which we should have such great trouble studying law according to our case system. Note the drive for the giving of reason for a judge and indeed in the family, we typically give reasons also for new legislation. A thing which you remember used to be done to a great extent by our big system in regard to statute. In tutored times, it was almost inconceivable that a statute didn't open with a page of preamble explaining why the statute purported to have been passed. And in more recent days, at least in the federal government, you have the legislative finding of fact and the legislative declaration of policy becoming a fairly frequent in the federal statutes, giving an indication of why are they the passers of it say they want you to thing they passed it.

Karl Llewellyn (01:14:17):
The tutor preamble came into disrepute because it got so abused. Anytime that anybody wanted something done to help himself out, he would build a huge preamble in terms of 17 other things, all appealing to the general public. And then shoot his little alleged statutes or measures undercover. And this led to a distaste for preambles, which led to one style of statutory interpretation, which was to disregard the preamble as no prior to the effective text of the statute. Nonetheless, the preamble has its purpose when it isn't abused and as I say, it's coming back in. Certainly, however, within the family, the quick decision either legislative and prospective or retrospective in terms of judgment of the family tribune is one which is expected to carry a reason and a convincing reason if it is to have adequate power. And at this point, mom and pa find themselves up against the same thing that came to bear upon the King's courts when the King's court settled down at Westminster early in the 13th century and a crowd of steadily present guys who in due course became lawyers, began to watch what went on.

Karl Llewellyn (01:16:03):
Those buddies took notes as the court operated and when a new case came up months later, those buddies were on hand with their notes to say "but, you see, last March what you did was--" and the court found itself uncomfortable departing from what it did and from what it said and from what it said last March. And the official system of official precedent had begun to grow. In a somewhat similar fashion, the uncanny memory of the small child presses upon parents once reasons are given. And the question is to stay within your reason or to find a good reason or an exception. I recur once again as a reminder because I don't want to spend time on it now. I recur once again to the reminder that legal technicality, legalism, literalism, sticking in my bark, use of that letter which is the depth of intelligent administration of justice, that that is typical of the small child as soon as he can talk. It is typical of the same type of treatment of language that you find in any type of word magic.

Karl Llewellyn (01:18:01):
And of course the small child falls or word magic just as he does for literalism in matters of law. And I repeat to you that that goes on in the layman, through his life, except so far as he is educated out of it. And the education out of it is in good part, our job. They let her kill him, but it starts killing him all over again with every new child that is born. And it becomes a cultural achievement to get the child far enough along to recognize the spirit in place of the letter. When we can get to the place that we make interpretation take account both text and purpose, we have achieved a huge cultural advance. And if we can make that a standard professional achievement, we will have really contributed to our civilization.

Karl Llewellyn (01:19:13):
There's no need of insisting on this with further illustrations and I've given you at times before. I will take a single instance that I've picked up in an accidental reading not long ago indicating the persistence of this kind of thing into the adult child. Jones bets Smith-- they being gambling men-- a hundred dollars that he, Jones, can throw a walnut through that window. The bet is made and closed, where upon Jones pulls out of his pocket a walnut shell full of lead and heaves it through the window and amid the universal claim of the bystanders collects his hundred bucks. It takes a lawyer to point out that that wasn't a walnut and it takes a lawyer to point out that that was not the meaning of the bet.

Karl Llewellyn (01:20:29):
The actual result of this sad historical occasion is perfectly typical of lay thinking about law. So do not allow the layman to accuse you of being piddler beyond what they are. What you are entitled to be ashamed of is to still be a piddler at all because you know better and they don't. Turning now from the matter of personnel and the matter of attempted control of personnel, I want to come in the family through a couple of situations in which new measures are sought for and observe the resemblance again to the larger society. There comes a time in every family with children when John turns to Nellie or Nellie turns to John after the children are in bed and says, "Nellie, we have got to get this thing organized. Something is getting out of hand on the hit or miss line. Either the spinach is not getting eaten or we aren't getting into bed on time or whatever."

Karl Llewellyn (01:22:23):
And you settle down to a severe sustained legislative inquiry. At the end of the legislative inquiry, a proposal for legislation is made and then one settles down to do what every good legislator does and what silly legislators don't do: you settle down to try to figure out ahead of time, what is going to be the course of operation under the proposed legislation and try to envisage the future in terms of all kinds of contingencies, and then you modify your proposed legislation to take care of that. And typically, when you announce the legislation-- this is known as promulgation in the big society-- when you promulgate your legislation, you promulgated with a happy speech about why, and an attempt at a pep talk about support and enforcement. The parallel is utterly charming. I stopped for just one more thing before I leave the family and turn to a sadder topic. The last thing I turn to is the light that the family situation sheds on our double phenomenon, which we never bothered to think about with the two barrels of it really running parallel in our minds. On the one hand, we have a constitutional prohibition against ex post facto laws. An ex post facto law is a criminal statute which makes penal that which has happened before the statute is passed.

Karl Llewellyn (01:24:38):
And that, we say, is unconstitutional. And it is by no means a dissimilar policy which informs our prohibition against the bill of attainder. The net effect is to reach back because of the crimes of one member of the family and visit penalties upon other members of the family, a slightly different thing but of the same general character. On the other hand, when it is a civil case, no matter what important, what devastating effect the decision may have upon the loser, when it is a civil case, we force the court to decide it and we force the court to decide it after the event. Don't think that forcing the court to decide it is an easy cultural achievement. Throughout the middle ages in Europe, for example, the courts could refuse to decide a case because they didn't know how. And a really tough case when the courts refused to decide it or came under pressure to decide it, they dealt with in a happy faculty fashion. They transmitted the entire body of the records to the university and said, "you decide." You can imagine what happened when the records got to the university. If you want a literary picture read, "rebel it." Penn Pedrol had such a case brought before him and made remarks about it, which I strongly suggest to your attention use Richard's translation. That's the best. In a civil case, I'd say, we force the court to decide and they decide after the event. How can you put these two things together?

Karl Llewellyn (01:27:06):
If it is so unjust to condemn a man under a statute, which didn't exist when he mildly trespassed to the tune of a $20 fine, so unjust that it's unconstitutional. Then how, in the name of heaven, can we reconcile it with our notion of justice to suck him for a hundred thousand dollars verdict for something that happened without his knowing? What the law was because there was no law on the point at the time, or indeed the law was to the contrary either in the particular state or so far as anybody knew. The matter is brought out quite sharply in this recent batch of cases all over the country in which a family member is allowed to sue another family member or negligent injury due to driving the automobile. You're familiar with the line of cases. Here, suddenly, pops into being a hundred thousand dollars verdict.

Karl Llewellyn (01:28:20):
There wasn't any before and the law was indeed to the contrary, as far as anybody could tell. Maybe flatly so in the particular state. How is that judge? Why isn't that unconstitutional? How do we put them together? The family is, I think, again, the key. You find in the family that there are two types of penalization by a ruling made after the event and that any child can understand the difference. The one is the unforeseeable and the other is the rather obvious, welcome as a loophole, because they're ain't no rule against it yet. I was at a summer camp once upon a time where the rule was that there was no swimming except at swim time and one peculiarly piscivorous animal, who had a yen to enjoy himself in standard legalistic style, acquired a bar of soap. And with the bar of soap and at a spot, not a swimming spot, and at a time, not swim time, he happily waded out up to up to, but not including, his nostril there. And there, yodeling happily, he began to shampoo himself and attempt to take a bath.

Karl Llewellyn (01:30:17):
Now you have there a perfect case in which your offender is capable of understanding that he has committed an offense even though the rules not say so. Quite different would be a situation which something not within the obvious trends of the existing camp rules was involved. You find that same thing in the family. The reason that we take the one line in the civil case is that we assume that on the whole, the drive and trend of law and civil cases is foreseeable enough so that one ought to feel his way into what he can do. And if he's trying to come right to the edge of the line, what sympathy do we have for him anyhow? Whereas in the criminal field, even though we recognize the same to be true, we're worried because of possible abuse and play at the same way that we do with many of the constitutional liberties. Better if we must, against the officer of the law, rather than in his favor. We discussed it.

Karl Llewellyn (01:31:50):
I have no more time. I simply invite you to make your own application to the international situation. It's easy to make, now an exam. This course has had three aspects, and I shall attempt to do some justice to each of the three. It has had to do with a considerable body of reading and as you have observed, I have no interest in either lecturing on what you can read or discussing it, except so far as you ask questions. Reading is, for my money, an act which you are supposed to have acquired and stuff assigned to be read is stuff assigned to be read and to be read intelligently and to be integrated into your approach to law and to the subject of the course. I shall therefore endeavor to checkup on whether you have read with care and, above all, with intelligence. The matter assigned for readings, I have devised for this purpose what I think is a honey of a device. We will find out whether it is or not, but I have never devised it before and I'm tickled pink with it, right? All you have to do is to have read with intelligence and you will come through this, not only with flying colors, but with a hundred and one gun salute,

Karl Llewellyn (01:33:39):
They second piece that the course deals with is the handling of general ideas about the institution of law with some effort to get some illumination out of those. Most of those have appeared in the lectures and in the class discussion, having some bearing upon the reading too and integrating there with. I'm going to attempt to give you an opportunity to do something along that line, demonstrating some ability to handle such ideas. A question could be, for example, something like this: "if Lewellyn's notions about the institution of law have anything in them, they ought to apply observably to the first year class at the University of Chicago law school. Discuss whether they do."

Karl Llewellyn (01:34:56):
The third aspect of the course is in terms of technical skills-- of craftsman-like reading and craftsman-like writing. For this purpose, you will certainly want to bring him to the exam your two sets of cases, and are welcome to bring in any notes there on which you care to bring. A type of question on one of the sets of cases would be something like this: "the following case is before you sitting as trial judge. Then comes the case and the state of the case. And let's say the plaintiff moves for judgment, non upstanding. The case is bitterly contested and you know there will be an appeal. Give your decision and get your opinion." Or you could have a question of this type: "the following case has come into your office and you are asked for a memorandum of the law on behalf of the plaintiff. On consulting the files, you find a memorandum written by a predecessor no longer with the firm which concludes as follows-- in some, the law is one, two, three, four, five, six, seven.

Karl Llewellyn (01:37:20):
How far would you modify this? And why?" I think either of those would be indications of that line of approach. The last one , if I give you that second one, which will require you to phrase law, I should feel that that would do the work, for example, on effective writing. If I should give you one like the first in which you jump right around like a judge writing an opinion, spilling words in all directions with no clear clean nicety of line, then I would feel in a situation like that that I ought to give you some kind of a clause to draw. So that in five lines of text you would accomplish something particular by words that moved with precision. Writing a judicial opinion, nobody expects you to be precise. Writing a statement of the law or a clause to control courts, you would be expected to be precise.

Karl Llewellyn (01:38:44):
The examination will take four hours because the performance test always calls for twice as much time as any ordinary writing test. There'll be two hours on the performance side, anyhow, maybe two and a half, so that you have time to look it over and mull it over and arrange what you do before your write. For the love of mike, don't write before you think. For the love of mike, if you are nervous, chew chewing gum, eat lemon drops, do something to make it come out through your jaw instead of through your pen. It pays to make notes, to outline where you're going. Every question has three important parts. It has a beginning and a middle and and an end. And of these, the most important to know first is which? The end. Lawyers' writing begins with the end. Lawyers' writing begins with the end. Now all together, lawyers' writing begins with the end! It's been rather fun for me, this course. And I think you're pretty good class.

Karl Llewellyn (01:40:30):
I feel that even those of you who are not yet a bowling along as well as you will are all salvageable. I feel that on the whole, there's a very definite degree of brains. And I feel that there is a very reasonable quantum of industry here and there which may, by the grace of God, become habitual to all. Still lacking in many of you is precision. There is still a definite touch of sloppiness, both in reading and in thinking and an expression, that you've simply got to get out of before you can become lawyers. But on the whole, you're coming along. And I expect to see you all here next year. If we have any kind of what we want, we want one of ya. And as I told you on the occasion of our last little interstitial examination, I prefer giving a hundred percent A's and have no no hesitancies or inhibitions on that point. The only thing that you made me mad about on the little one was that I had to squeeze to get A's out of the group, except for two that were too nice A's. All the rest I just had to work on with a pick... now don't put me through that kind of trouble, let me have some fun out of reading.

Speaker 1 (01:42:20):
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