John R. Commons and the Origins of Legal Realism; or, the Other Tragedy of the Commons

Abstract

This essay explores the intellectual trajectory of one 19th century precursor to the legal realist tradition - John R. Commons. Although Commons was a political economist rather than a legal scholar, his writings in the early 1890s about the relationship between law and the economy set out many of the themes that were later expressed by Robert Hale, Morris Cohen and other foundational legal realist writers. The essay focuses on Commons' first book, THE DISTRIBUTION OF WEALTH, that detailed the role that legal rules play in shaping power and coercion in a market economy. Commons argued that law, particularly the law of property, plays a prominent role in determining outcomes of the game of competition in a capitalist economy. The essay then describes the intense controversy within the economics profession that Commons' book engendered, a controversy that culminated in Commons' firing and banishment from academia. The essay also recounts Commons later re-entry into academic life, by which time his scholarship had moved from social critique to detailed classification and description of social conditions. It notes that Commons intellectual trajectory paralleled the movement within legal realism from political critique to a concentration on process, neutral principles and consensus.

Keywords: John R. Commons, economic history, legal realism