John Chipman Gray and the Moral Basis of Classical Legal Thought

Abstract:     
Between the 1870s and the 1930s American law was dominated by a jurisprudential style variously described as "mechanical jurisprudence," "legal formalism," and "classical legal thought." Standard histories of American legal thought describe classical orthodoxy as a jurisprudence that (1) modeled law on the physical sciences, and (2) rigorously separated legal analysis from moral considerations. According to the standard view, classical jurists posited that law was an autonomous and politically neutral enterprise, a matter of logic rather than judicial discretion. As Christopher Columbus Langdell, Dean of the Harvard Law School, once notoriously declared: considerations of public policy and substantial justice were "irrelevant" to a correct determination of the rules of law.

This article, through an extended study of John Chipman Gray's jurisprudential and doctrinal writing and teaching, substantially alters the conventional understanding of classical orthodoxy. Gray taught at Harvard Law School from 1869 to 1913. As a legal scholar, Gray's eminence rivaled Langdell's. Gray was, for example, the author of The Rule Against Perpetuities (1886), the treatise that reduced perpetuities law to a single Rule elaborated through remorseless logic, a Rule populated by fertile octogenarians, unborn widows, and endless probates.

Yet Gray believed that law was not "a brooding omnipresence in the sky;" he taught that judges dissembled when "speaking as if their sole function was to construct syllogisms;" and he praised casebook teaching for "accustom[ing] the student to consider the law not merely as a series of propositions having, like a succession of problems in geometry, only a logical interdependence." Most importantly, Gray also believed that the chief engine of legal development was "the opinion of judges on matters of ethics and public policy." For Gray, law primarily was grounded in social mores, morals and public policy.

Can someone who maintained these views also be a classical legal scholar? In answering "Yes" to this question, this Article fundamentally revises our understanding of classical orthodoxy and its place in the development of American legal and social thought.

Number of Pages in PDF File: 60

Keywords: mechanical jurisprudence, legal formalism, classical legal thought, Langdell, Harvard Law School, John Chipman Gray, classical orthodoxy, morals, gilded age, Rule Against Perpetuities, Restraints on Alienation

JEL Classification: K4, N11, N12

Accepted Paper Series