Legal realism

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Legal realism is a naturalistic approach to law. Legal realists believe that the legal science should investigate law exclusively with the value-free methods of natural sciences, also called 'sciences of the real' in some Continental languages (e.g., 'Realwissenschaften', in German). Some legal realists (e.g., Leon Petrażycki or Max Weber) also hold that there should exist, too, a legal dogmatics, which is independent of legal science proper but, this notwithstanding, can be regarded as a science in its own right (and so, despite its being a non-real, or formal, science). However the focus of all legal realists is on legal science proper. Due to their value-free approach, legal realists are opposed to natural law traditions. Legal realists regard these traditions as historical and/or social phenomena to be explained by making use of a variety of psychological and sociological hypotheses. They are also opposed to any form of linguistic turn in jurisprudence. When applied to law, they regard the linguistic turn as a sort of 'emasculation' (Enrico Pattaro) of legal phenomena. This is so because legal realists conceive legal phenomena as psychical phenomena, and, notably, as a form of moral motivation of human behavior (to be investigated with the methods of psychology and/or neurosciences). All this implies that legal realists are opposed to most versions of contemporary legal positivism. A further difference from all sorts of legal positivism is that legal realists refuse to confine their investigations to state law and/or positive law. Moreover, legal realists have a conception of law that stretches far beyond legal pluralism—so popular in many versions of classical and contemporary sociology of law. This is one of the reasons why legal realism cannot be regarded as a sort of sociology of law (other reasons being: legal realists' psychologism and their refusal of the linguistic turn—a turn that affected, too, sociology of law). Apart from Max Weber (who, owing to a variety of reasons, is mostly conceptualized as sociologist rather than as a legal realist), there are two strands of legal realism in this sense: Scandinavian legal realism, founded by Axel Hägerström (1868-1939), and Polish-Russian legal realism, founded by Leon Petrażycki (1867-1931). Both realisms, owing to their similarities (and despite their founders' ignoring one another), are sometimes referred to as 'continental legal realism' (in the singular).

In English-speaking countries the phrase 'legal realism' has often a somewhat different and more restricted meaning. It is used to refer to a conception of adjudication rather than of law in general. However, some legal realists in this other sense, including the founder of this movement Oliver W. Holmes, reduced law to the activity of courts and other state officials, thus proposing a kind of naturalistic and value-free reduction of law (a conception, though, that all continental legal realists would reject, inter alia, as excessively narrow). It is to this other kind of legal realism—also called 'American legal realism'—that this entry is devoted.

American legal realists (henceforth: realists) believe that there is more to adjudication than the mechanical application of known legal principles to uncontroversial fact-finding as legal formalism believes. Some realists believe that one can never be sure that the facts and law identified in the judge's reasons were the actual reasons for the judgment, whereas other realists accept that a judge's reasons can often be relied upon, but not all of the time. Realists believe that the legal principles that legal formalism treat as uncontroversial actually hide contentious political and moral choices.

Realism was treated as a conceptual claim for much of the late 20th century due to HLA Hart's misunderstanding of the theory.[1] Hart was an analytical legal philosopher who was interested in conceptual analysis of concepts such as the concept of 'law'. This entailed identifying the necessary and sufficient conditions for the use of the concept 'law'. When realists such as Oliver Wendell Holmes pointed out that individuals embroiled in the legal system generally wanted to know what was going to happen, Hart assumed that they were offering the necessary and sufficient conditions for the use of the concept 'law'. Nowadays, legal theorists tend to recognise that the realists and the conceptual lawyers were interested in different questions. Realists are interested in methods of predicting judges with more accuracy, whereas conceptual lawyers are interested in the correct use of legal concepts.

Legal realism was primarily a reaction to the legal formalism of the late 19th century and early 20th century, and was the dominant approach for much of the early 20th century. It succeeded in its negative aspiration of casting doubt upon formalist assumptions that judges always did what they said so that it is often said that 'we are all realists now.' However, realism failed in its positive aspiration of discovering a better way of predicting how judges would behave than relying on the reasons given by judges.

A theory of law and legal reasoning that arose in the early decades of the twentieth century broadly characterized by the claim that law can be best understood by focusing on what judges actually do in deciding cases, rather than on what they say they are doing.[2] The central target of legal realism was legal formalism: the classical view that judges don't make law, but mechanically apply it by logically deducing uniquely correct legal conclusions from a set of clear, consistent, and comprehensive legal rules.[3] American legal realism has aptly been described as "the most important indigenous jurisprudential movement in the United States during the twentieth century."[4] Though most legal scholars today would agree that some aspects of legal realism were misguided or over-stated, its enduring influence on legal thought and legal education has been profound.

Forerunners of legal realism[edit]

Although the American legal realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily upon a number of prior thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to the law had been forcefully criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had held up empirical science as a model of all intelligent inquiry, and argued that law should be seen as a practical instrument for advancing human welfare. Outside the realm of law, in fields such as economics and history, there was a general "revolt against formalism," a reaction in favor of more empirical ways of doing philosophy and the human sciences.[5] But by far the most important intellectual influence on the legal realists was the thought of the American jurist and Supreme Court Justice Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr.[edit]

Holmes is a towering figure in American legal thought for many reasons, but what the realists drew most from Holmes was his famous prediction theory of law, his utilitarian approach to legal reasoning, and his "realist" insistence that judges, in deciding cases, are not simply deducing legal conclusions with inexorable, machine-like logic, but are influenced by ideas of fairness, public policy, and other personal and conventional values.

"The Path of the Law"[edit]

All these themes can be found in Holmes's famous 1897 essay, "The Path of the Law." There Holmes attacks formalist approaches to judicial decision making and states a pragmatic definition of "law": "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law".[6] If law is prophecy, Holmes continues, we must reject the view of "text writers" who tell you that law "is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions".[6]

Holmes next introduces his most important and influential argument, the "bad-man" theory of law: "[I]f we take the view of our friend the bad man we shall find that he does not care two straws" about either the morality or the logic of the law. For the bad man, "legal duty" signifies only "a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment".[6] The bad man cares nothing for legal theorizing and concerns himself only with practical consequences. In the spirit of pragmatism, Holmes suggests that this is useful way of laying bare the true meaning of legal concepts.

The utilitarian or instrumentalist flavor of the "The Path of the Law" also found favor with the realists. The purpose of the law, Holmes insisted, was the deterrence of undesirable social consequences: "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage."[7] Before the Civil War, this conception of adjudication as a form of social engineering had been widely shared by American judges, but in the late nineteenth century it had fallen out of favor.[8] One of the aspirations of both Holmes and the realists was to revive it.

Key themes of legal realism[edit]

Drawing upon Holmes and other critics of legal formalism, a number of iconoclastic legal scholars launched the legal realist movement in the 1920s and 30s. Among the leading legal realists were Karl Llewellyn, Jerome Frank, Herman Oliphant, Underhill Moore, Walter Wheeler Cook, Leon Green, and Felix Cohen. Two American law schools, Yale and Columbia, were hotbeds of realist thought. Realism was a mood more than it was a cohesive movement, but it is possible to identify a number of common themes. These include:

  • A distrust of the judicial technique of seeming to deduce legal conclusions from so-called rules of law. The realists believed that judges neither do nor should decide cases formalistically. Law is not, as the formalists claimed, a system of rules that is clear, consistent, and complete. Rather, the law is riddled with ambiguities, contradictions, gaps, vague terms, and conflicting rules of interpretation. As a result, there is often (perhaps always) no uniquely correct answer to any hard case that appellate judges decide. Law is incurably "indeterminate."
  • A belief in the instrumental nature of the law. Like Dewey and Pound, the realists believed that law does and should serve social ends. Judges unavoidably take account of considerations of fairness and public policy, and they are right to do so.[9]
  • A desire to separate legal from moral elements in the law. The realists were legal positivists who believed that law should be treated scientifically. A clear distinction should be drawn between what the law is and what it should be. Law can only be viewed as an empirical science, as it ought to be, if moralistic notions are either excluded or are translated into empirically verifiable terms.[10] The idea that legal talk of "duty," "right," etc. is really just talk about how judges are likely to decide cases, is a clear example of how many realists tried to purge law of moralistic language and translate everything into "realistic" talk of actual consequences and testable predictions.

Criticisms[edit]

Legal realism had its heyday from the 1920s to the 1940s. In the 1950s, legal realism was largely supplanted by the legal process movement, which viewed law as a process of "reasoned elaboration" and claimed that appeals to "legislative purpose" and other well-established legal norms could provide objectively correct answers to most legal questions. In his 1961 book The Concept of Law, British legal theorist H. L. A. Hart dealt what many scholars saw as a "decisive blow"[11] to legal realism, by attacking the predictive theory of law that many realists had taken over from Holmes. Hart pointed out that if a law is just a prediction of what courts will do, a judge pondering the legal merits of a case before him is really asking, "How will I decide this case?" As Hart notes, this completely misses the fact that judges use legal rules to guide their decisions, not as data to predict their eventual holdings.

Many critics have claimed that the realists exaggerated the extent to which law is "riddled" with gaps, contradictions, and so forth.[12] The fact that most legal questions have simple, clear-cut answers that no lawyer or judge would dispute is difficult to square with the realists' strong claims of pervasive legal "indeterminacy." Other critics, such as Ronald Dworkin and Lon Fuller, have faulted legal realists for their attempt to sharply separate law and morality.[13]

Influence and continuing relevance[edit]

Though many aspects of legal realism are now seen as exaggerated or outdated, most legal theorists would agree that the realists were successful in their central ambition: to refute "formalist" or "mechanical" notions of law and legal reasoning. It is widely accepted today that law is not, and cannot be, an exact science, and that it is important to examine what judges are actually doing in deciding cases, not merely what they say they are doing. As ongoing debates about judicial activism and judicial restraint attest, legal scholars continue to disagree about when, if ever, it is legitimate for judges to "make law," as opposed to merely "following" or "applying" existing law.[14] But few would disagree with the realists' core claim that judges (for good or ill) are often strongly influenced by their political beliefs, their personal values, their individual personalities, and other extra-legal factors.[15]

See also[edit]

References[edit]

  1. ^ Hart, H. L. A. (1961). The Concept of Law (2nd ed. / with a postscript edited by Penelope A. Bulloch and Joseph Raz.). Oxford: Clarendon Press. Ch.VII
  2. ^ Robert A. Shiner, "Legal Realism," in Robert Audi, ed., The Cambridge Dictionary of Philosophy. New York: Cambridge University Press, 1995, p. 425.
  3. ^ Brian Leiter, "American Legal Realism," in Martin P. Golding and William A. Edmundson, eds., The Blackwell Guide to the Philosophy of Law and Legal Theory. Oxford: Blackwell, 2005, p. 50.
  4. ^ Leiter, "American Legal Realism," p. 50. There was also a Scandinavian school of legal realism that arose about the same time as its American cousin. This entry focuses on American legal realism.
  5. ^ See generally, Neil Duxbury, Patterns of American Jurisprudence. New York: Oxford University Press, 1995, ch. 2.
  6. ^ a b c Oliver Wendell Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457 (1897).
  7. ^ William W. Fisher III, Morton J. Horwitz, Thomas A. Reed, eds., American Legal Realism. New York: Oxford University Press, 1993, p. 3.
  8. ^ Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992, p. 193
  9. ^ According to legal scholar Brian Leiter, the "core claim" of legal realism is that judges do not decide cases on purely legal grounds; other factors play a significant and in fact predominant role. Leiter, "American Legal Realism," p. 53.
  10. ^ George C. Christie, Jurisprudence: Text and Readings on the Philosophy of Law. St. Paul, MN: West Publishing Co., 1973, pp. 642–644.
  11. ^ Leiter, "American Legal Realism," p. 61. Leiter argues that Hart's criticism was off the mark, and that it was wrongly assumed to have refuted legal realism.
  12. ^ See, e.g., Frederick Schauer, "Easy Cases," Southern California Law Review, Vol. 38 (1985), p. 399.
  13. ^ Ronald Dworkin, Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1978, pp. 22-28; Lon L. Fuller, The Morality of Law, rev. ed. New Haven, CT: Yale University Press, pp. 33-94.
  14. ^ See, e.g., Lief H. Carter and Thomas F. Burke, Reason in Law, 8th ed. Chicago, University of Chicago Press, 2015 (contending that law is frequently indeterminate and that judges often do, and should, make law by employing a variety of legal methods and sources, especially "purposive" interpretation); and Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts. Minneapolis: West, 2012 (arguing that law is not highly indeterminate and that there is little legitimate leeway for judicial policymaking).
  15. ^ Leiter, "American Legal Realism," p. 60 (noting that "[t]he paradigm of scholarship established by the Realists--contrasting what courts say they're doing with what they actually do--is one that has become so much the norm that distinguished scholars practice it without even feeling the need, any longer, to self-identify as Realists").

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