Legal Realism

Legal Realism
1.
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Overview
Fundamental Tenets
Historical Development
Great Thinkers
Criticisms
Overview
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 (a minor
weakness), frailties (the
condition of being weak) and
Development
The underlying characteristic of the
work of the realists is the necessity,
in the understanding of the law, to
look at the law in practice.
American legal realism founder
Scandinavian legal realism
developed in parallel vein.
The heyday(the period of a person's

or thing's greatest success,
popularity, activity, or vigour) 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.
Realist View:
Adjudication is not logical or
deductive.
Judges are not impartial.
There is no law that pre-exists the
judgment of judges.
Judges make and change law.
Statutes and other sources of law are
not law until courts say they are law.
What a statute requires cannot be
specified until courts interpret and
American Realists
Oliver Wendell Holmes (1841-1935)
Jerome Frank (1889-1957)
Karl Llewellyn (1893-1962)
Roscoe Pound (1870-1964)
Benjamin Cardozo (18701938)
Scandinavian Realists
Axel Hagerstrom (18681939)
Alf Ross (1899-1979)
Karl Olivecrona (18971980)
Oliver Wendell Holmes (1841-1935)

Holmes is the main precursor of
American Legal Realism.
Arguably, he was the most important
American jurist of the 20th century,
and his essay The Path of the Law,
first published in 1898, is the seminal
work in American legal theory.
He detailed his radical break with legal
formalism and created the foundation
for the leading contemporary schools
of American legal thought.

Law is whatever the courts will use
the public might to enforce.
Law is a profession concerned with
the use of public force by courts.
Sources of law (statutes, precedents,
legal rights and duties) are all just
prophecies (prediction) about what
courts will do.
Study of law = study of

systematized predictions of what
courts will do. Through such study
we might be able to make
generalizations; make the rules laid
down by courts more precise; and
systematize court decisions into a
coherent(logical) whole.
Law is the system of predictions even
a bad man wants to know.
Precedents
Precedents are illusory(based on
illusion): too vague and general to
determine future cases.
The facts of every case are too
unique to determine the applications
of the rules.
There are precedents that can
support any conclusion.
Judges should arbitrate (equity)
rather than issue judgments
Separation of Law and Morals

The bad man cares about one but not the
other.
The limits of our legal rights and duties
are not coextensive(extending over the
same area) with our moral rights and
duties.
Morally bad statutes can be, have been,
and are, enforced.
Normative words (rights, duty, malice,
intent, negligence, etc.) have different
meanings in legal and moral contexts.
Jerome Frank (1889-1957)

Jerome Frank, a distinguished lawyer,
public official, federal judge, and writer.
Frank was general counsel to the
Agricultural Adjustment Agency (AAA)
of the American during the New Deal.
He was Judge, U. S. Court of Appeals for
the Second Circuit
Jerome Frank, Law and the Modern
Mind (1931).
Jerome Frank, Courts on Trial: Myth and
Reality in American Justice (Princeton:
Princeton University Press, 1949. 441
pp.).
In Law and the Modern Mind, Frank argued,

essentially, that the rule of law was a
delusion.
He stressed the uncertainties and
fallibility(liable to err) of the judicial process.
Profoundly influenced by Freudian psychology,
Frank claimed that the belief that there was
firm content to legal and constitutional rules
was an artifact of humankinds never-ending
search for an infallible father, a search begun
in childhood, and ongoing for most of us, until
the grave. For some, claimed Frank, religious
dogma(a principle) filled the void of an
imperfect parent, and for others it was the law.
Karl Llewellyn (1893-1962)

American law professor at Columbia
Law School and later at Chicago Law
school.
Karl Llewellyn, The Common Law
Tradition-Deciding Appeals (1960);
Karl Llewellyn, "Some Realism about
Realism: Responding to Dean Pound,
44 Harv. L. Rev. 1222 (1931).
Karl Llewellyn, Jurisprudence:
Realism in Theory and Practice
(1962).
Llewellyn, in My Philosophy of Law,

discusses the necessity of
expanding jurisprudence beyond
the rules and to look at the
whole of the law as an
institution. That is , to look at the
aims of law (i.e., what is it that the
law aims to do in society) and to look
at all aspects of the administration of
justice and law including the
processes of judging, legal practice,
counseling, government
Llewellyn suggests that judges

should take account of policy factors
and the policy aims of legislation,
and to acknowledge that they are
doing so.
Llewellyn argues that this will reduce
uncertainty.
Axel Hagerstrom (18681939)

Axel Hgerstrm,in full Axel Anders
Theodor Hgerstrm (born Sept. 6,
1868,Vireda, Swedendied July 7,
1939),Swedish philosopher who founded
the Uppsala school of philosophy, which
espoused phenomenological(the study of
the development of human consciousness
and self-awareness as a preface to or a
part of philosophy) and conceptual
analysis and rejected metaphysical
suppositions and subjectivism.
In this connection he argued that

the philosophical ideas of
objective moral values and of
absolute rights have created
fanaticism(the quality of being
fanatical) and sharpened conflicts
in human history.
He is also well known for his
work in jurisprudence as the
founder of Scandinavian legal
realism.
Alf Ross (1899-1979)
Karl Olivecrona (18971980)

Olivecrona was a Swedish jurist of the
realist school, and from 1933 Professor
of Procedural Law in the University of
Lund.
He regards law as a body of independent
imperatives effective in bringing about
certain patterns of behaviour in society.
The reality of law is psychological and
behavioural, not dependent on some
metaphysical world of norms.
Criticism

Legal Realism

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Legal Realism

The heyday(the period of a person's

Oliver Wendell Holmes (1841-1935)

Study of law = study of

Separation of Law and Morals

Jerome Frank (1889-1957)

In Law and the Modern Mind, Frank argued,

Karl Llewellyn (1893-1962)

Llewellyn, in My Philosophy of Law,

Llewellyn suggests that judges

Axel Hagerstrom (18681939)

In this connection he argued that

Alf Ross (1899-1979)

Karl Olivecrona (18971980)

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