Everything about Legal Realism totally explained
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.) didn't 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".
Further explanation: an example
Legal realism operates on a premise that's 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 isn't 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's 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 doesn't 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're in the world in which he lives. He wouldn't wear a red tie before Judge Dillon. The Legal Realist lawyer can't predict the ultimate outcome of his case, but one thing is certain: he won't lose his case due to his neckware. To deny the red tie rule here's 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 can't 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's the heart of Legal Realism.
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.
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.
Further Information
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