Heart against Head: Perry Miller and the Legal Mind

Abstract

WAR (1965) [hereinafter cited as THE LIFE OF THE MIND]. 2. For example, a discussion of equity, id. 171-182, consistently confuses the various senses in which this complex legal word is used. Professor Miller also states that "[1)n the colonies, such controversies as in mid-eighteeenth century England were finding their way to Chancery usually had to be adjudicated, if at all, by the legislatures." Id. 171. This ignores the fact that some colonies (Such as South Carolina) had fully'developed Chancery courts; moreover, some jurisdictions enforced in their ordinary courts what would be elsewhere labeled equitable claims. 10. Id. 142. Story was appointed to a professorship established at Harvard by Nathan

Of Mandarins, Legal Consciousness, and the Cultural Turn in US Legal History: Robert W. Gordon. 1984. Critical Legal Histories. Stanford Law Review 36:57–125

“…. was probably not much more than the intellectual impact of the Sears Roebuck catalog on farmers” (Friedman 1968, 1244, 1248, 1251, 1253–54).…”

“…Though recognizing the publication of “The Legal Mentality” by an intellectual historian of Miller's stature as “a major—and rare—event in American legal historiography,” Friedman delivered a negative verdict on the merits of the volume, finding it to be “disfigured by many errors of fact and more significantly by its strained and strange view of American law and the legal profession.” In so doing, he sounded all the notes one might expect of a scholar skeptical of the autonomy of law, though his charge of “intellectual determinism” overstated the causal claims Miller made for his subject matter. The latter was taken to task both for his focus on “jurisprudential elites” and the power and significance he attributed to their “higher flights of thought” (Friedman 1968, 1244, 1247, 1251, 1259) 6…”

“…Had Miller done so, he would have quickly come to see that the legal materials upon which he lavished so much attention were neither intended nor read as contributions to a learned philosophical discourse. “Perhaps after years of reading sermons,” Friedman postulated, “even the prose of the lawyers appeared profound” to Miller, but what he had mistakenly spoken of as “American jurisprudence” was for the most part “only a thin soup of borrowed notions served up with the meat and potatoes of law.” Indeed, Friedman hazarded that “the impact of legal treatises on the intellectual life of their readers … was probably not much more than the intellectual impact of the Sears Roebuck catalog on farmers” (Friedman 1968, 1244, 1248, 1251, 1253–54).…”

“…In an important respect, the new lines of inquiry recommended by Gordon's article were designed to deliver on the promise he perceived to be unfulfilled in Miller's rendering of the legal mind. While concurring with critics that “The Legal Mentality” took an unduly narrow view of the intellectual life of the law, Gordon was far from discounting the significance of “the literary remains of a small group of eminent jurists” as Friedman had done (Friedman 1968, 1257). To the contrary, Gordon submitted that the ceremonial statements of legal elites were all the more interesting for being so little connected with the practical legal matters that usually commanded their time and attention, as recorded in “the documents of their working lives” (Gordon 1976, 465).…”

“Critical Legal Histories Revisited”: A Response

“…Social historians and social‐legal scholars were committed by vocation to minimizing the importance of “law on the books” in society, and especially of formal juristic thought, at least as a causal element. Susanna Blumenthal points to a classic instance of this commitment, Friedman's brilliant polemical review of Perry Miller's Life of the Mind in America (Friedman 1977). So was this apparent turn to doctrine a reactionary move?…”