Dicta

I should like to raise a query, however, whether the distinction taken between dictum and obiter dictum really corresponds to any definite usage of the legal profession. Most lawyers, I think, regard dictum as the elliptical equivalent of obiter dictum. (Fuller 1934a: 551) Even by his own count or criteria, “On Philosophy in American Law” (PAL) must reckon low on the list of Llewellyn's notable literary efforts (Fuller 1934b: 435). It is a short and unprepossessing article, an occasional paper that seems hurriedly written, slight in content, and significantly lacking in the author's usual stylistic flair. It is sketchy in tone, low on humor, free of polemic, and rather parochial in its references. Ostensibly focused on philosophy in American law, it in fact has nothing explicit to say about philosophy or philosophers. More than that, the law that is discussed by way of a few grand generalizations is far removed from the doctrine or guild talk that represents the practice that the realist wishes to describe, teach, and possibly also affect. To this we can add that, since its publication, the article appears to have slipped rapidly into the obscurity of the stacks. It was not reprinted in Llewellyn's collected essays and has seldom been referenced, let alone revived. It is something of an enigma, a marginal piece, a symptomatic exercise and as such should be addressed through its incidents, its rhetorical figures, its dicta, its asterisk footnote, and other asides.