Lecture 14. American Legal Realism
General comment on legal realism: historical context, basic tenets, methodology
- Distinguish American and Scandinavian Legal Realism: our focus is on the former (American, not
Scandinavian)
- Founders - John Chipman Gray. Oliver Wendell Holmes
- Prominent legal realists – Karl Llewellyn. Jerome Frank
- time of emergence of this school - 19th century/beginning of 20th century
- Context of its emergence
Counter-reaction to legal formalism – which was dominant at the time law schools
(Harvard). Christopher Langdell said to take legal data and make it into a coherent and logical
system and demonstrate how a legal decision can be crystalized out of this coherent system
through logic an analytical derivation. Legal realists objected to this objection (scientific
approach/purely analytical). They said you can’t depict the law as being that logical because
that’s not how law works. Law is not logic. Law is experience, found in society, not in a
technological maneuver in a book
Pragmatism (a specific philosophical view about knowledge) gains ground – approach to
knowledge. Knowledge can only be correct so far that is useful in practice. Many legal realists
are pragmatists.
Roosevelt’s New Deal role of the judiciary - the economic/political background in the
1920/30’s. program involved economic prosperity measure to reduce unemployment. B
- A few basic tenets of legal realism
Rule-scepticism: but different versions of rule-scepticism, vary in how radical/moderate they
are
A belief that personal attributes of the judge (e.g. his/her background, experience, political
ideology, etc.) are heavily operative in the production of judicial decisions.
The social, political, and economic context of the decision (e.g. policy considerations relative
to a particular time and place) has a major role in shaping the decision
- Methodological tenets
Focus on behavioural aspects of law, i.e. on judicial behaviour Draws on methods of social
sciences
Instrumentalism about law: law is seen as an instrument, a means to social ends
Influenced by ‘pragmatism’ (a certain philosophical view of knowledge)
US Supreme Court, Lochner v New York (1905)
US Supreme Court can declare federal and constitutional law invalid
How much could you forced to work against the will. People working in a bakery
could not be forced to work more than max hours – 12h.
SC said that this offends the principle of liberty, found in 14 th amendment of the US
Constitution and all citizens have equal right to compete on the marketplace
Guided by this philosophy, SC invalidated state legislation that protected workers,
freedom of contract was constitutionally enshrined
Freedom doesn’t mean much if you are living in those bad conditions in bakery –
not all citizens have equal capacity of freedom to contract
Cases like this highlighted the impossibility of real freedom of contract
Karl Llewellyn
- Biographical details
Only American citizen to be awarded iron cross: he joined German army, went back in US to
have a successful career in Uni of Chicago, was also a poet
The Bramble Bush – introduction to law for his student
The Cheyenne Way: how societies without legal system conducted disputes (eg native
Americans)
The Common Law tradition
Drafted US Uniform Commercial Code
- Adopts rule-scepticism, though a moderate and qualified version (what Cotterrell calls ‘constructive
doctrinal realism’) – ‘Rule skepticism’: rules are ‘pretty playthings’ – he disagreed with the idea that
General comment on legal realism: historical context, basic tenets, methodology
- Distinguish American and Scandinavian Legal Realism: our focus is on the former (American, not
Scandinavian)
- Founders - John Chipman Gray. Oliver Wendell Holmes
- Prominent legal realists – Karl Llewellyn. Jerome Frank
- time of emergence of this school - 19th century/beginning of 20th century
- Context of its emergence
Counter-reaction to legal formalism – which was dominant at the time law schools
(Harvard). Christopher Langdell said to take legal data and make it into a coherent and logical
system and demonstrate how a legal decision can be crystalized out of this coherent system
through logic an analytical derivation. Legal realists objected to this objection (scientific
approach/purely analytical). They said you can’t depict the law as being that logical because
that’s not how law works. Law is not logic. Law is experience, found in society, not in a
technological maneuver in a book
Pragmatism (a specific philosophical view about knowledge) gains ground – approach to
knowledge. Knowledge can only be correct so far that is useful in practice. Many legal realists
are pragmatists.
Roosevelt’s New Deal role of the judiciary - the economic/political background in the
1920/30’s. program involved economic prosperity measure to reduce unemployment. B
- A few basic tenets of legal realism
Rule-scepticism: but different versions of rule-scepticism, vary in how radical/moderate they
are
A belief that personal attributes of the judge (e.g. his/her background, experience, political
ideology, etc.) are heavily operative in the production of judicial decisions.
The social, political, and economic context of the decision (e.g. policy considerations relative
to a particular time and place) has a major role in shaping the decision
- Methodological tenets
Focus on behavioural aspects of law, i.e. on judicial behaviour Draws on methods of social
sciences
Instrumentalism about law: law is seen as an instrument, a means to social ends
Influenced by ‘pragmatism’ (a certain philosophical view of knowledge)
US Supreme Court, Lochner v New York (1905)
US Supreme Court can declare federal and constitutional law invalid
How much could you forced to work against the will. People working in a bakery
could not be forced to work more than max hours – 12h.
SC said that this offends the principle of liberty, found in 14 th amendment of the US
Constitution and all citizens have equal right to compete on the marketplace
Guided by this philosophy, SC invalidated state legislation that protected workers,
freedom of contract was constitutionally enshrined
Freedom doesn’t mean much if you are living in those bad conditions in bakery –
not all citizens have equal capacity of freedom to contract
Cases like this highlighted the impossibility of real freedom of contract
Karl Llewellyn
- Biographical details
Only American citizen to be awarded iron cross: he joined German army, went back in US to
have a successful career in Uni of Chicago, was also a poet
The Bramble Bush – introduction to law for his student
The Cheyenne Way: how societies without legal system conducted disputes (eg native
Americans)
The Common Law tradition
Drafted US Uniform Commercial Code
- Adopts rule-scepticism, though a moderate and qualified version (what Cotterrell calls ‘constructive
doctrinal realism’) – ‘Rule skepticism’: rules are ‘pretty playthings’ – he disagreed with the idea that
