The Message in America

[American Jursisprudence scholar Walter Wheeler Cook introduces in his defense of the legal scholarship of Wesley Newcomb Hohfeld the term] message.

Cook notes that one of the greatest messages Hohfeld gave to the profession of law was that an adequately analytic jurisprudence was among the indispensable tools of a properly trained lawyer or judge.

The concept message entered ordinary language from religion. Today it can be used in its original meaning in the revivals of the Salvation Army, when converts are called upon to tell the story of their conversion and to bring to their listeners the message of salvation. In a wider sense, the word is very frequently used in the extended area of popular education and in particular the lectures arranged by women's clubs. Whether the speaker is discussing the political situation in China, expressionist painting, or Prohibition—he delivers a "message."

The idea of education in general is religiously saturated by the belief that the greatest possible contact with the greatest possible number of people and with the aid of a quantitatively large accumulation of unrelated bits of knowledge (therefore the extraordinarily voluminous lecture business in America) will result in "progress." Those who promote this form of educational system do not see the fragments as unrelated—because they are unconnected to any discipline—but only as tools for the immediate stimulation of intellectual activity, which results in a feeling of participation in the stream of civilization and in part has the purpose and effect of an opiate (a flight from reality).   [ Plus ça change... We are in the Internet Age but has anything changed?—fjw]

Three types of persons who convey messages are especially closely linked with the business of university education: the president, the "noted educator," and the football coach. The functions of president and "noted educator" are often combined in one person. The president's function is primarily for public show, and his message, which appears in the form of magazine articles or—if the president has an important post, like Nicholas Murray Butler at Columbia University—in the New York Times, must maintain the link with public opinion and preserve the favor of financial supporters of the institution. [fn1]

The "noted educator" has a message of a more technical nature, and under certain circumstances—often he engages entirely in banalities—is responsible for a concrete experiment of the kind A. Meiklejohn is currently attempting to carry out in Wisconsin: a selected group of students will study the history, literature, philosophy, science, and art of one culture—for example, that of ancient Greece—for one year, in order to gain an overall view of a culture. That this message is more complete in religious than scientific terms is shown by the telling detail that knowledge of Greek is not a prerequisite. Finally, the football coach brings the message of physical training, perhaps on occasion voluntarily issuing statements on the value of compulsory military education in college, and introduces students to the technical aspects of sexual life insofar as this is necessary and not covered by older colleagues.

By way of the idea of connecting with the community and with individual intellectual and physical education, the essence of the message forces its way directly into scholarly life, and even scholars of the highest rank—such as the Nobel Prize recipient [Robert] Millikan—become restless under the pressure of public opinion and feel compelled to publish selected platitudes on the connection and agreement of science and religion. Only a few scholars—for example, the biologist [Thomas Hunt] Morgan—earn a reputation for avoiding mixing science and education and offering no message.

With his program of reforming law schools and theory of law in the service of restructuring American law, Hohfeld is placed at the center of this socially optimistic religious movement. This effort is aimed at adopting the techniques of European cultural achievements (the purpose of translating European works) in order to remove the superficial flaws in American intellectual life and establish superiority with the same vigor that led to preeminence in the economic sphere.

Fanaticism has no patience with slow absorption and intellectual growth. The translations of European jurisprudence have so far had little effect and are read hardly at all. [fn2] The energy expended in organizing the work of translation evidently satisfies the immediate purpose—the feeling that something is being done—and there is no desire actually to assimilate the works. Hohfeld's theory of law is an attempt of a similar sort. He, [Arthur L.] Corbin, and Cook earnestly rejected the current understanding of theoretical problems, and the intent of the work was directed to a "message"—practical help that must not be problematic but gives advice in clear, terse dogmas and, in the case of Corbin's dogmatic collection of definitions for students, ends in the total abolition of theory.

1. The July 7, 1926, issue of The Nation printed the following item:

  "What is a College President? The regents of the University of Oregon are ready to tell us. The official statement of their investigating committee which nominated Dr. Hall gives the reasons for their choice:
   Dr. Hall as president of the University of Oregon will prove to be a very popular man. He is very easy to meet, has a pleasant smile, and one is immediately impressed by his unbounded energy. He is not only a real college executive but has had business experience as well in connection with one of the banks in Madison, Wisconsin. Dr. Hall is a very able public speaker, and his services undoubtedly will be in great demand throughout the State. We are very enthusiastic about the new president.
   "Possibly Dr. Hall has other qualities besides those which led to his selection,but at any rate he has a voice and a pleasant smile and has been connected with a bank. Is anything more needed?"

2. See Borchard, "Some Lessons from the Civil Law, " 576. The same complaint—that American jurists do not read the translations of European works—was voiced by Professor Page of the University of Wisconsin (interview).

Anglo-American Analytic Jurisprudence , pp191-194.