ABSTRACT
After I had agreed to contribute to this volume, I reflected on the not so subtle irony of my doing so. My hero, if I have any hero, is the American Legal Realist, Underhill Moore. His first significant publication was a savage criticism of a book much like this one, a book called The Rational Basis of Legal Institutions, that offered a series of essays on several legal institutions-liberty, property, succession, the family and punishment. Moore observed that legal institutions were only patterns of habitual human behavior, the rationality of which depended on the ends to which the behavior was a means and so rephrased the editor’s question as, “What are the means to legal institutions and to what proximate ends are legal institutions means? Concretely, of what facts are group habits consequences and what are the consequences of group habits?” (Moore 1923).
