Legal realism

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 is therefore subject to human foibles, frailties and imperfections.

Proponents

Early proponents

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, Justice Louis Brandeis, and Wesley Hohfeld).

Recent proponents

The most famous representatives of American Legal Realism were Mato Sign, Karl Llewellyn, Felix S. Cohen, Arthur Linton Corbin, Jerome Frank, Wesley Alba Sturges, Robert Lee Hale, Herman Oliphant, Thurman Arnold, Hessel Yntema, Max Radin, William Underhill Moore, Leon Green, and Fred Rodell. Aside from Hägerström, the most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt.

Essential beliefs of legal realism

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.

Stated differently, legal realists advance two general claims: 1) Law is 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".

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.

Further explanation

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.

Proponents of legal realism say it is not concerned with what the law should, or "ought to" be, but that legal realism simply seeks to describe what the law is. Proponents of legal formalism disagree, saying that "law" is what is commanded by a lawgiver, that judges are not lawgivers, and that what judges do, while it might belong to the field of law, is not "law" but legal practice.

Expanding influence

Many developments in legal thought have drawn heavily from legal realism, including 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 at the University of Chicago and Richard Epstein at University of Chicago and New York University School of Law) and law and society (scholars such as Marc Galanter and Stewart Macaulay at the University of Wisconsin Law School). 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.

See also

• Judicial activism
• Prediction theory of law
• Rule according to higher law

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)
• H.Erlanger et al. Is It Time for a New Legal Realism?, Wisconsin Law Review 2005(2): 335-363
• Mathieu Deflem. 2008. Sociology of Law: Visions of a Scholarly Tradition. Cambridge; New York: Cambridge University Press.
• Victoria Nourse & Gregory Shaffer, "Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 Cornell Law Review (Forthcoming 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1405437.