The U.s. Uniform Commercial Code, Legal Thinking

The Uniform Commercial Code is a well-known code in the world. Its successful enactment and adoption push the United States onto the track of codification, and thus the country has entered into an era of statutory law. Moreover, the Code is also widely regarded as a significant symbol of the trend of the integration of the civil law system with the common law system.However, as to the source of the jurisprudence of the Code, there is no consensus within the academic circle. This dissertation hypothesizes that the jurisprudence of the Code mainly derives or originates from Professor Karl Llewellyn of Columbia University, its Chief Reporter;to a certain extent, the Code's jurisprudence is that of Llewellyn's. It is because of its embodiment of Llewellyn's legal realism, the Code reveals several features of its own.The entire dissertation consists of seven chapters in total.Chapter One is " An Overview Of UCC", in which the author gives a general introduction to the historical background of the drafting and adoption of the Code so as to pave the way for discussions of and comments on the Code in other chapters.The Second Chapter is "Traditional Paradigm------Mechanical Jurisprudence", whichoutlines the mechanical jurisprudence prevailing in the American legal world in the late 19th and early twentieth century.A paradigm is a common belief, shared by a scientific community, founded upon great scientific achievements that have been widely accepted and become a tradition. To acquire a paradigm and to acquire the more profound research the paradigm permitted, is the symbol of the maturity of a science. Thereafter, the scientist is engaged in normal scientific activities under the guidance of the paradigm. Such activities appear to pack the natural world into a well-made and hard case.The traditional paradigm of American jurisprudence, the mechanical jurisprudence, also referred to as "formalism", evolved from Langdell's jurisprudence, and may be defined as that jurisprudential doctrine which considers every dispute to be susceptible to a single, correct solution, yielding a precedent which can be aggregated with other precedents in anincreasingly abstract synthesis. The precedents allow one to clear mark the boundaries of the private and public spheres, and in addition to define just relations among individuals. From such principles, one may deduce the governing law of any particular case. In short, it is the significant features to the Mechanical Jurisprudence or formalism to regard law as a science like that of Euclidean geometry, pay much attention to deduction and disregard or even overlook social realities. Because it satisfied the desire of the American people in the late 19th century for certainty and predictability of law, the jurisprudence was gradually accepted as a paradigm, dominating the American legal profession.The wide acceptance of formalism as a paradigm symbolized the maturity of legal science in America.The Third Chapter is "Paradigm Subversion------Legal Realism". In this chapter, theauthor has made a thorough discussion and a deep inquiry of the American realist movement in the 1930s in general and Karl Llewellyn's realist jurisprudence in particular. Different from the traditional studies, the discussions and inquiries were made against, as a grand setting, the process of the transformation of American legal paradigm.A fundamental function of a paradigm is to guide scientists in their normal scientific research. As their research goes deeper and more thorough, sometimes a normal problem, one that ought to be solvable by known rules and procedures, resist the reiterated on-slaught of the ablest members of the group within whose competence it falls. On other occasions a piece equipment designed and constructed for the purpose of normal research fails to perform in the anticipated manner, revealing an anomaly that cannot, despite repeated effort, be aligned with professional expectation. Thus, the existing paradigm falls into a crisis.At the turn of the 20th century, the traditional legal paradigm, the formalism could not keep up with the drastic change in the American life conditions and gradually lost its "puzzle-solving function" and thus fell into a serious crisis that led to the emergence of legal realism.The mission placed on legal realism by history is destruction or subversion, i. e., to subvert the status of formalism as a paradigm. Accordingly, the realists claimed overtly that "legal realism is the avowed enemy of formalism." To overcome the defect and shortcoming of divorcing from social realities of formalism, Karl Llewellyn and other legal realists paidmuch more attention to judicial process, stressed the administration of justice and focused their studies on behavior;they opposed to the view held by formalist jurists that rules alone could decide cases or mandated their results;the formalists' practice of overlooking the uncertainty of rules due to their formulation by language drew from the legal realists more fires and attacks. "Are Judges Humans?" was their angry rebuttal. Under the attacks of the legal realism, the formalism was becoming more and more insignificant, and its position as a paradigm was finally subverted.Besides, in this chapter, the author also has corrected a misunderstanding in the traditional study of legal realism that Karl Llewellyn overlooked morals and divorced facts from values." Novel Paradigm------Grand Style" is the Fourth Chapter, and also one of the corecontents of the dissertation.A traditional paradigm falls into a crisis is a necessary precondition for the emergence of novel theories. Once a first paradigm through which to view nature has been found, to reject it without simultaneously substituting another is to reject science itself.No destruction, no reconstruction. To destruct is to reconstruct. The mission of legal realism is mainly to destruct. Realism may be a good medicine for a troubled society, but it cannot be taken as staple for a stabilized civilization. Due to its destructive nature, legal realism as a whole did not fit to serve as a paradigm for legal science.However, among the many legal realists, Karl Llewellyn held a special position. Although he strongly opposed formalist jurisprudence, Llewellyn was not as radical and went extreme as Frank was and did. The author of this dissertation maintains that Llewellyn belonged to the constructive group within the realist movement, hi fact, he later developed his realist jurisprudence, and put forward the theory of grand style as a new paradigm to substitute formal style. In his grand style, judges perform two duties: to execute law and at the same time pursue for justice. To balance and coordinate the two duties is a high judicial art. The grand style also stresses judges' situation sense, argues for a flexible application of law, pays much attention to policies and reasons underlying rules, and insists that the application of law not exceed beyond its reason.The Fifth Chapter of this dissertation is "Change Of Paradigm------Features Of UCC",another main content for the discussion in the dissertation.Change of paradigm leads to a revolution of science and the scientific revolution causes the change of the visual gestalt of the scientist. What were ducks in the scientist's world before the revolution are rabbits afterwards.This dissertation suggests that the Uniform Commercial Code embody Llewellyn's realist jurisprudence. The law from his perspective is not the same as that of formalist jurists such as Langdell and Williston. To the latter, law was nothing but rules. But to Llewellyn, the law "grows up". It is not only rules, but also includes principles and even policies. If law could be compared to a duck in the world of formalist jurisprudence, it has already become a rabbit in Llewellyn's world of legal realism.As a result, compared with the Uniform Sales Act of 1906 and the various restatements, UCC embraces its own features such as anti-formalism, stress of purposive interpretation, application of immanent law, and pursuit of openness and flexibility, ect.Chapter Six is "Safeguard Of Paradigm------Institutional Creation and Dissemination".Thomas Kuhn, the distinguished representative of the historical school of scientific philosophy, wrote in The Structure Of Scientific Revolution: "To choose between competing paradigms is to choose between contradictory life styles. Because of this, the choice of a paradigm cannot be made according to the assessment procedures peculiar to normal science. For these procedures all depend partly on a particular paradigm and it is these procedures that have broken down and caused the dispute and the attempt of another paradigm to substitute. When different paradigms compete with each other and argue against each other in choosing paradigms, each is its own point of departure and destination for justification and each school justifies its paradigm by applying its own paradigm. Accordingly, it is completely necessary to declare a new paradigm and argue that it is simpler, more suitable and more appropriate.Legal realism and grand style decision is the objective pursued by Karl Llewellyn when he drafted the Code. However, he could not force judges to make such grand style judgments. After imbued in formal style for more than half a century, the reasoning of most judges had already belonged to what he termed as formal style. To let judges to make grand style judgments, in the first place, his jurisprudence and the pursuit of the Code must be made clear to them. Hence, Llewellyn set about to address this issue so as to ensure the new paradigm asa guide for more judges in their decision-making. The first measure he took was an institutional creation. On the one hand, he designed the merchant rules in the Code to avoid the potential injustice to consumers because of the application of immanent law by the Code, and at the same time imposed upon merchants the moral standards he deemed just and fair. On the other, Llewellyn wrote the official comments in which he gave a detailed explanation and interpretation of the Code's policies and its legislative pursuit. Secondly, to let more people understand his new paradigm, Llewellyn took part in various social activities, wrote books and articles to disseminate his realist idea and notion of grand style. The second editionof The Bramble Bush, Common Law Tradition and Realist Jurisprudence------Theory andPractice were all published in this period."A Summary Comment of UCC" is the last chapter of the dissertation. In this chapter, the author has answered such questions as to whether UCC is a code, and if it is, what kind of code it is. To the opinion of the author, UCC can be regarded as a genuine code no matter measured or evaluated from what angle. Of course, UCC is different from the civil code in the civil law system, and it is not similar to the commercial code in that system either. The author of the dissertation argues that it is a commercial code only in the sense of common law.In many fields and areas, UCC has affected the traditional American common law and its impact felt is well beyond the boundaries of the United States.After the Second World War, American economy developed rapidly and commercial transactions were carried out more smoothly, the contribution of the UCC cannot be gainsaid.As to Karl Llewellyn, by drafting the Code, he erected an un-perishable memorial monument for himself. As long as the Code continues to govern and regulate commercial transactions in the United States, his name will not pass into oblivion.