Harry Kalven and the Perils of Particularism (reviewing A Worthy Tradition: Freedom of Speech in America by Harry Kalven, Jr., Jamie Kalven)

ion becomes problematic when, and only when, the abstraction is entrenched, resisting attempts to call up the particulars it has suppressed even when those particulars become relevant. At times this entrenchment may be psychological, as when our familiarity with a single generalizing word such as "snow" makes it more difficult to call up differences among the multiple varieties of snow, a difficulty not present when a language, such as that of the Inuit, has separate words for each type of snow. At 1989] The University of Chicago Law Review other times entrenchment may be a function of the kinds of practices we find in a legal system, practices that make it systemically impermissible for certain decision makers to call up certain particulars because a certain abstraction is written in canonical form and accompanied by certain rules governing how that phenomenon of canonicity is to be treated. In other words, some decisional environments may disable their decision makers from looking beyond, behind, or beneath a canonically entrenched abstraction. An instruction to a police officer to "give a Miranda warning whenever you arrest a suspect" potentially entrenches "arrest," making it difficult if not impossible for that officer permissibly to draw even those distinctions among different types of arrests that might seem to that officer now to be relevant. One of the defining features of the common law is its comparative lack of canonical entrenchment. When it turns out that some abstraction of the past generates the wrong result in the case now being considered, the common law has the ability to modify the abstraction at the moment of application, applying the modified abstraction rather than the previous abstraction to the case at hand. When common law processes are at work, the phenomenon of entrenchment is weakened; apparent abstractions are defeasible should a case arise in which adherence to the abstraction would be unfaithful to the goals of the system.20 In order for this process to make sense, however, there must be some reason for saying that application of the previous abstraction to this new case is ill-advised. In other words, the common law operates by reference to some justification or justifications lying behind the specific abstractions of the law.2 When the result indicated by the abstraction diverges from the result indicated by direct application of these background justifications, then, subject to presumptions and institutional constraints, the abstraction is modified so as better to reflect its background justifications. Theoretically, as this process continues, the occasions of divergence be'o This is hardly the place for an extended discussion of my views on the nature of the common law. The reader interested in an elaboration of what I egregiously abbreviate in the text should consult Frederick Schauer, Is the Common Law Law? (Book Review), 76 Cal L Rev (forthcoming, 1988), which owes much to Brian Simpson, The Common Law and Legal Theory, in William Twining, ed, Legal Theory and Common Law 8 (Basil Blackwell, 1986). 21 The most extended discussions of the relationship between the common law process and "non-legal" factors are Ronald M. Dworkin, Taking Rights Seriously (Harvard, 1977), ,Ronald M. Dworkin, Law's Empire (Harvard, 1986), and Melvin A. Eisenberg, The Nature of the Common Law (Harvard, 1988). [56:397