The ArgumentIn the nineteenth century, American legal educators drew on the idea of “legal science” the claim that the study of law was similar to the study of the natural sciences. In this paper, I propose to examine the particular conceptions of “science” that were incorporated into that idea. The primary point of the paper is to argue that in antebellum America, a particular view of the natural sciences dominated public discourse, and it was this conception that was appropriated by (...) contemporaneous legal scientists. Public discussions of natural science in lyceums, surveys, and journals, were carried out in a language grounded in the same religious commitments and the same normative conception of nature that drove the ideology of laissez-faire. Described under the rubric “Protestant Baconianism,” the approach was characterized by commitments to four elements: natural theology; a constrained version of Baconian inductivism; a belief in grand synthesis and proof by analogy; and claims of moral improvement. These elements were typical of the efforts of a particular influential circle of natural scientists and, similarly, of some of the more influential legal scientists in the antebellum period. This article examines the elements of the Protestant Baconian approach that were incorporated into Christopher Columbus Langdell's model of legal science in the 1870s, a model that continues to influence thinking about both legal education and jurisprudence to this day. (shrink)

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation (...) of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws. (shrink)