Legal realism
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- For other meanings of the term realism, see realism (disambiguation).
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 Pound 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, Jerome Frank, Robert Lee Hale, Thurman Arnold, Hessel Yntema, Max Radin, Leon Green, and Fred Rodell. The most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt. Notably, Karl Llewellyn was a major figure in the debate and teaching of legal realism while a professor at Columbia Law School. 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.
Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics (scholars such as Richard Posner and Richard Epstein at the University of Chicago). In addition, legal realism eventually led to the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences.
Legal Realism emerged as an anti-formalist and empirically oriented response to and rejection of the legal formalism of Dean Langdell and the American Law Institute (ALI), as well as of the "mechanical jurisprudence" or "science of law" with which both became associated.
Legal Realists advance two general claims: 1) Law is often indeterminate and that 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".
[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)
