- Legal realism
Legal realism is a family of theories about the nature of
lawdeveloped 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
interdisciplinaryapproaches 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 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".
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: 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".
Legal realism's unattractiveness to many scholars led to the development of the
Legal processschool 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 Kennedyand Roberto Unger), feminist legal theory, and critical race theory, or more moderately, such as law and economics(scholars such as Richard Posnerand Richard Epsteinat the University of Chicago). Legal realism also influenced the recognition of political scienceand 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
Christopher Columbus Langdelland the American Law Institute(ALI), as well as of the "mechanical jurisprudence" or "science of law" with which both became associated.
The demise of the discovery age and scientific theories made the judge self conscious about their creative functions.
Prediction theory of law
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=339562 Brian Leiter, "American Legal Realism", "in" The Blackwell Guide to Philosophy of Law and Legal Theory (W. Edmundson & M. Golding, eds., 2003)]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=761007 Michael Steven Green, "Legal Realism as Theory of Law", 46 William & Mary Law Review 1915 (2005)]
* [http://auraserv.abdn.ac.uk:9080/aura/bitstream/2164/33/1/050218-001.pdf Geoffrey MacCormack, "Scandinavian Realism" 11 Juridical Review (1970)]
* [http://www.socoflaw.net/ Mathieu Deflem. 2008. Sociology of Law: Visions of a Scholarly Tradition. Cambridge; New York: Cambridge University Press.]
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