Dubber and Fernandez Place the Anglo-American Legal Treatise in Perspective

As publication editor of a national law encyclopedia managing authors and writing certain legal articles myself, I thought that the following passages of text, co-written by one of my law school professors (Markus Dubber), were quite relevant to the uncertain direction of the digital legal world in 2014. Dubber and Fernandez make an attempt at explaining the formalism of the traditional legal treatise and the challenge to its integrity by the rise of legal realism and critical legal theory (these words are more my own description than that of Dubber and Fernandez in Law Books in Action: Essays on the Anglo-American Legal Treatise [Hart Publishing, 2012]). You can view the SSRN version of their manuscript here.

From Dubber and Fernandez (2012):

As rationalising and systematising works, legal treatises seem to be unlikely places to find out how the law was actually operating. Indeed, they would be much more likely to set out some kind of synthesising aspiration, a kind of plea to judges, legal practitioners and students to think of things in the way that the treatise-writer recommends, drawing on hints to that effect in whatever cases can be found.


Joel Prentiss Bishop, an extremely prolific American treatise-writer of the late nineteenth century, was particularly vocal about highlighting the importance of the treatise-writer over the judge. And he was not very deferential. Yes, the judges get to decide the case, but the treatise-writer gets to say what the case really decides.


Instead of countering complexity with coherence, in the end the treatises recreated complexity.


And those ‘great treatises’ paved the way for the American Law Institute Restatement projects. How did the United States get from this ‘Age of the Treatise’ to the study of doctrine being seen as passé by the late 1970s and early 1980s? Simpson identified the lack of enthusiasm for doctrine in the United States with the rise and effects of legal realism. There is clearly some truth to this observation, although there are many jurisdictions that had significant ‘realist’ or ‘sociological’ movements in which treatises continued to be produced. Treatise-writing was not just an outmoded vestige of ‘Langdellian formalism’, or ‘Classical Legal Thought’, if you prefer. Corbin, for instance, saw his treatise as a Legal Realist alternative to Williston’s formalism, one that drew on inductive case analysis rather than deductive reasoning from higher principles to lower doctrines. Corbin’s treatise, after all, appeared only in 1950, long after Legal Realism had replaced formalism as the orthodoxy in American legal thought….Farnsworth’s contracts treatise, first published in 1982, can be seen as a more explicitly normative, if not to say neo-formalist, alternative to Corbin’s Realist project. 

-and the editors conclude-

Given the treatise’s shape-shifting resilience over the past few centuries and its intimate connection with ideas of legal scholarship, legal education, and even of law itself, it would be foolish to count it out, now or in the future, in civil law countries or in the common law world. Perhaps even in an apparently hostile environment such as American legal scholarship, where ‘doctrine’ has for some time been a four-letter word, a fundamental and widespread reassessment of the very project of so-called interdisciplinary (‘law and’) legal scholarship may usher in a renaissance, or at least a reassessment, of the treatise in one form or another, as the disciplinary pendulum swings back from the ‘and’ to the ‘law’ and the analysis of law reasserts itself, both chastened and complicated in the wake of insights gleaned from decades of peering into law from the outside.

My own question: Do the currently existing legal treatises (2014) properly balance the normative with the descriptive?