Legal realism
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Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
It has become quite common today to identify Justice Oliver Wendell Holmes as the main precursor of American Legal Realism (other influences include Roscoe Pound, Justice Benjamin Cardozo, and Wesley Hohfeld). The chief inspiration for Scandinavian Legal Realism many consider to be the works of Axel Hägerström.
The most famous representatives of American Legal Realism were Karl Llewellyn, Felix S. Cohen, Arthur Linton Corbin, Jerome Frank, Robert Lee Hale, Herman Oliphant, Thurman Arnold, Hessel Yntema, Max Radin, William Underhill Moore, Leon Green, and Fred Rodell. Except for Hägerström, the most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt. No single set of beliefs was shared by all legal realists, but many of the realists shared one or more of the following ideas:
- Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast.
- Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropological approaches to the study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of this tendency.
- Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.
The heyday of the legal realist movement came in the 1920s through the early 1940s. Following the end of World War II, as its leading figures retired or became less active, legal realism gradually started to fade.
Stated differently, Legal Realists advance two general claims: 1) Law is often indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question "What is (the) law?" is "Whatever judges or other relevant officials do".
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[edit] Further explanation: an example
Legal realism operates on a premise that is adhered to, often unwittingly, by most laymen and many who have legal training: that "the law," whatever that may be, is concerned with and is intrinsically tied to the real-world outcomes of particular cases. Accepting this premise moves jurisprudence, or the study of law in the abstract, away from hypothetical predictions and closer to empirical reflections of fact.
Necessarily, then, Legal Realism is not concerned with what the law should, or colloquially "ought to," be. Instead, Legal Realism simply seeks to describe what the law is.
Take the example of a hypothetical Judge Dillon. Dillon hears many cases, and in surveying his record, one inarguable fact is clear: lawyers lose the cases they try before Judge Dillon when they wear red ties. In this scenario, a Legal Realist would acknowledge that the law is as follows: a lawyer will lose his case if he wears a red tie in Dillon's court. Note that this description of the opperative law does not, and need not, refer to any statute or formalized rule. The "red tie rule" may not be philosophically satisfying, but it is nonetheless elegantly concise and complete.
A critic may observe that any number of factors may contribute to the empirical fact described in the paragraph above. A Legal Realist will grant this criticism as wholly true. Nonetheless, the relationship between red ties and losing in Dillon's court remains. Legal realism does not necessarilly concern itself with explaining this curious relationship. At the same time, it has no room for those who would deny such a clear and convincing case of cause and effect.
The most telling test of Legal Realism versus its various critics takes place in the real world. Critics may philosophise ad nauseam on the validity, much less the propriety, of the red tie rule discussed above. Meanwhile, a Legal Realist lawyer would simply acknowledge the facts as they are in the world in which he lives. He would not wear a red tie before Judge Dillon. The Legal Realist lawyer cannot predict the ultimate outcome of his case, but one thing is certain: he will not lose his case due to his neckware. To deny the red tie rule here is to ignore the law.
To be clear, very few people, Legal Realists included, would argue that the red tie rule is a "good law," or a just and equitable way to decide legal conflicts. Notwithstanding the merit of a given rule, one cannot comprehend the causes that underlie the operation of the law, nor improve that operation, until one honestly faces the manner in which the law does in fact operate. Doing precisely that is the heart of Legal Realism.
[edit] Decline
Legal realism's unattractiveness to many scholars led to the development of the Legal process school in the 1950s and 1960s, a theory that attempted to chart a middle way between the extremes of realism and formalism. Realism remains influential, and a wide spectrum of jurisprudential schools today have either taken its premises to greater extremes, such as critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, and critical race theory, or more moderately, such as law and economics (scholars such as Richard Posner and Richard Epstein at the University of Chicago). Legal realism also influenced the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences.
[edit] Continuing relevance
Legal Realism emerged as an anti-formalist and empirically oriented response to and rejection of the legal formalism of Dean Christopher Columbus Langdell and the American Law Institute (ALI), as well as of the "mechanical jurisprudence" or "science of law" with which both became associated.
[edit] See also
[edit] External links
- Brian Leiter, American Legal Realism, in The Blackwell Guide to Philosophy of Law and Legal Theory (W. Edmundson & M. Golding, eds., 2003)
- Michael Steven Green, Legal Realism as Theory of Law, 46 William & Mary Law Review 1915 (2005)
- Geoffrey MacCormack, Scandinavian Realism 11 Juridical Review (1970)
- Mathieu Deflem. 2008. Sociology of Law: Visions of a Scholarly Tradition. Cambridge; New York: Cambridge University Press.
