Thursday, September 10, 2009

Duncan Kennedy: Master of the Universe

On my first day of classes at Harvard Law School, I sat in on a lecture course called the "Globalization of Law in Historical Perspective." Taught by Duncan Kennedy, the course explores how and theorizes why law traveled between various corners of the world--both Eastern and Western, and both civil and common law jurisdictions--from roughly 1850 through the turn of the 21st century.
Kennedy's opening lecture was a tour de force. He took us on a journey that spanned a majority of the world's continents, nearly one dozen jurisdictions, and not only touched on but probed important concepts in Contracts, Civil Procedure, Criminal Law, Property, Torts and Constitutional Law. By the end of the class, we (the students) were almost all uniformly sitting in awe of the sheer range and volume of Kennedy's expertise in so many different fields of law.
Perhaps sensing that he had blown us away, Kennedy paused, surveyed the classroom, and said something that remains with me to this day: "Now, you should all know that I am not the master of the universe."

Could have fooled me. By the end of the course, I was convinced--and I remain convinced today--that Kennedy may actually be the most brilliant legal scholar anywhere.

Thinking back to that first day, it is hard not to wonder what Kennedy meant to say when he declared that he is not the master of the universe. My sense is that he meant to suggest that it is difficult enough for someone to achieve mastery in any single one--let alone all six--of the fundamental fields of law he intended to cover in his course. And although he had walked us through some of the most vexing intricacies of Contracts, Civil Procedure, Criminal Law, Property, Torts and Constitutional Law in multiple jurisdictions across different eras, Kennedy wanted to assure us that what he had done--and intended to do for the rest of the semester--was nothing special, nothing extraordinary, and that others, given sufficient time and inclination, could themselves reach the same level of familiarity as he had with these fields of law.
I'm not so sure. Contracts, Civil Procedure, Criminal Law, Property, Torts and Constitutional Law--each calls for different, and often competing, aptitudes and interests that one rarely finds gathered so neatly in one person. So rare, in fact, that I think it is likely that only one such person exists. That person is Duncan Kennedy.
He is, in my view, a legal giant whose thinking and writing will continue to shape how we see the law and the world well after he leaves this earthly life. And I say this despite disagreeing with much of his work. Indeed, one need not necessarily agree with Kennedy's view of the world in order to appreciate the vastness and depth of his intellect.
All that is a pretty long introduction to a conference I will attend in a couple of weeks: the annual meeting of the American Society of Comparative Law, which will be held here in the first weekend of October. Kennedy will deliver a luncheon address on the first full day of conference proceedings. Can't wait!
So, Duncan Kennedy is my nominee for (currently living) master of the legal universe.
Who is your nominee?


  1. A wonderful post. Mainly, I probably say this because it was this master of the universe who made me so badly want to stay at a tiny village at the East coast and there take all the courses that had his name written onto them. My first thought was that judging from how I got to know him his own answer to your question (why does he say he is not the master of the universe?) would be this, delivered with his (and that´s in every sense of the expression) winning smile: "Because there is no universe".

    I was and am one of his his admirers (he would not like that term), I am and was in his guerilla (he would like that term), but I stick with the words of the other master in that tiny village, Dersh: "Have no heroes. It´ll always be a disappointment".

    But to say something blog-worthy: My answer to the question is: The masters of the legal universe are the attorneys and the judges that master what we call law. People call it:
    I have a right to do this.
    I can´t let that happen to me.
    He´s not right to do that.
    Why do they treat me like that?
    I miss my kids.
    He bumped into me, what am I supposed to do?
    I wish the kid at school would stop hitting me with a stick every day.
    I can´t afford my rent now that they raised it.
    I´m sorry I did that.
    The authorities can´t do that.
    The judges and lawyers who decide upon these things are the masters of the legal universe. We only accompany them from time to time, not much more. But this is why we, apart from all the theoretical things we love, have to just make sure that what they do is legal. I think there´s a lot of mastery that goes beyond that. But I don´t think that there is any mastery that is more urgent. The young old man in that tiny village would probably say: "You are so right, Viktor. And so well said, too. But before I tell you why this was also all false, let´s have a smoke".

  2. Several names come to mind. As it would be boring to name the same individual, I won't name Professor Kennedy. My nominee is Professor James Whitman, a legal historian and comparativist, whose historical and geographical scope is truly phenomenal. His studies in comparative legal history represent some of the deepest scholarship published today. Those who are not familiar with his writings should start with his superb comparative study of honor and civility in France, Germany, and the US (published in Yale Law Journal in 2000 or thereabouts).

  3. My mom is the Master of the Universe.

    Ok, seriously, Victor is right: this is a great post; though so ironic in places I'm not sure when you're being serious and when you're not.

    I'm familiar with Kennedy's work, though I have not sat through a lecture of his. But if what you say is true -- I'm not so convinced that a mastery of the basic compulsory legal subjects renders one Master of the Universe.

    Put it this way: with sufficient time, you don't think most capable people -- who have succeeded at the university level -- could learn Contracts, CivPro, Crim, Property, Torts and Con law inside out?

    Unfortunately for us, law isn't rocket science, nor quantum theory (though these things do interest me). It's just a lot of rules, some with a rationale, others without any. Sure, depending upon the area of law, there's a dash of other disciplines: history, political science, philosophy or science; but, just a bit. Most lawyers just skim these disciplines and appropriate them for our legal purposes.

    Lawyers are skimmers, n'est-ce pas? :)

  4. That's the great tragedy of the electronic medium--it fails to capture one's tone.

    As it turns out, I was being quite serious when I wrote that Duncan Kennedy is the master of legal universe. He is, quite simply, utterly amazing in his range of expertise.

    It's not that he has memorized the rules and nuances of all the major fields of law. That would be impressive in its own right.

    Kennedy has done more than that. He has achieved a level of mastery far beyond what appears possible, deconstructing each of these areas of law and theorizing their unifying and distinguishing philosophical underpinnings. And all this, he has done in a way that is clear, coherent and understandable to others.

    That, in my view, is the true genius of Kennedy. His capacity to learn, assimilate and then to explain in an accessible way many of the great mysteries about the law that perplex us--and even those mysteries we did not even know existed until he brought them to our attention.

    And that is, partly, why Duncan Kennedy is the master of the legal universe.

  5. Actually I, too, was surprised by Jon's comment as I didn't detect irony in the original post.

    To continue on what Richard said: I also think that Duncan Kennedy is a strong contender. One should note that he has published path-breaking pieces on various fields of legal study: history, sociology, pedagogy, private law, adjudication, discrimination, housing, gender issues, and whatnot. It is one thing to master a field and quite another to publish a seminal study in it. I think the only other scholars with such range and impact writing today are Richard Posner and Cass Sunstein. And my feeling is that inside the US Posner and Sunstein have been more influential while globally Kennedy is the best known of the three, but this would be difficult to measure, of course.

    And while I completely agree with Jon that law is not rocket science, one should note that many mathematical and physical geniuses have written on political issues. Yet even Einstein's musings on peace and politics are mostly platitudes. It goes to show that even while the social sciences and humanities do not demand such special talent as math or physics, it is not easy to make and original contribution in these fields, even when one possesses the stellar IQ of an Einstein.

  6. Hm,well, I took most of Richard's points to be serious, but whenever you name someone "Master of the Universe" -- conjuring images of He-Man the cartoon figure -- you can't help but let sip in some tongue-in-cheek and maybe some irony. Not even Einstein was close to being Master of the Universe, and he gave us our first glimpse into how exactly space-time was shaped through his theory of general relativity.

    I guess I was being a bit of a devil's advocate here -- I do agree, of course, that great scientists are not necessarily great social theorists or commentators -- though some are, take Carl Sagan for one.

    True, too, is that while law is not rocket science, I can guess that many astro-physicists would be more at a loss for words to explain the Rule Against Perpetuities, than, say the origins of the universe or dark matter. :P


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