The Secular Prophet of American Law

I’ve always thought that the activity we now call “constitutional theory” began with the work of James Bradley Thayer. For centuries, it was a common view among Western legal thinkers that the law was a manifestation of something that was greater than ordinary legislation or judicial decisions. Judicial decisions, in particular, were not law, but were thought of as evidence of the law. Today, by contrast, it is hard to imagine leading scholars or judges explaining law in anything like these terms. Just when the change happened is impossible to pinpoint, but Oliver Wendell Holmes, Jr. was certainly an important figure in the transition. Holmes mocked the classical view that law is some sort of “brooding omnipresence in the sky,” a view he rejected as “fallacy and illusion.” Instead, Holmes proclaimed that law is a purely human affair. The Legal Realists that followed Holmes believed that what needed to be done was to “redefine supernatural concepts in natural terms.”

That’s why Thayer is so pivotal. He saw all of this coming in the views of legal academics and thinkers of the time. So he tried with the first “theory” to head it off. And so the rise of constitutional theory coincides precisely with the fall of the classical conception of law and the rise of this new, realist, conception of law. When it comes to the Constitution, what takes the place of the old, classical view is, in fact, theory. Theory is what ostensibly preserves “the law” as something separate and apart from raw policy preferences, or from raw partisan politics. Theory purports to provide a new account and defense of law’s essential nature.

At any rate, here is what looks like an important and very insightful new book on Thayer, which interestingly uses religious language right in its title to describe him: The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy (University of Kansas Press), by Andrew Porwancher, Austin Coffey, Taylor Jipp, and Jake Mazeitis.

Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few——came under Thayer’s tutelage in their formative years.

He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive.

In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms.

The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.