Legal Realism

views updated


The school of legal philosophy that challenges the orthodox view of U.S.jurisprudenceunder which law is characterized as an autonomous system of rules and principles that courts can logically apply in an objective fashion to reach a determinate and apolitical judicial decision.

Legal realists maintain that common-law adjudication is an inherently subjective system that produces inconsistent and sometimes incoherent results that are largely based on the political, social, and moral predilections of state and federal judges.

The U.S. legal realism movement began in 1881 when oliver wendell holmes jr. published The Common Law, an attack on the orthodox view of law. "The life of the law has not been logic," Holmes wrote, "it has been experience." Legal realism flourished during the 1920s and 1930s when roscoe pound, a professor from Harvard Law School, and karl llewellyn, a professor from Yale Law School, published a series of articles debating the nuances of the movement. Although the movement declined after world war ii, it continues to influence how judges, lawyers, and laypersons think about the law.

Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn, were sharply critical of each other and presented irreconcilable theories. Yet, five strands of thought predominate in the movement. The strands focus on power and economics in society, the persuasion and characteristics of individual judges, society's welfare, a practical approach to a durable result, and a synthesis of legal philosophies.

Power and Economics in Society

The first strand is marked by the nihilistic view that law represents the will of society's

most powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he tells Socrates that in every government "laws are made by the ruling party in its own interest," and "the ruling element is always the strongest." When courts speak in terms of what is right and just, Thrasymachus said, they are speaking "in the interest of those established in power." Justice Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).

Realists argued that law frequently equates the dominant power in society with pervasive economic interests. During the incipience of the U.S. legal realism movement in the nineteenth century, the United States was transformed from a static agrarian economy into a dynamic industrial market. Realists asserted that U.S. common law facilitated this transformation in a number of ways. Horwitz reported in The Transformation of American Law that when interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an interpretation that will "embarrass commerce." Instead, the judge said, courts are at liberty to "adopt such a construction as shall most subserve the solid interests of this growing country."

To help subsidize the growth of a competitive economy in the nineteenth century, realists have argued, U.S. judges commonly frowned on claims brought by litigants seeking monopolistic power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 a.d. 270 (1805), a downstream landowner asked the New York Supreme Court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners. The court refused to grant such a right because if it did "the public would be deprived of the benefit which always attends competition and rivalry." In a subsequent case, the New York Supreme Court held that a landowner's right to enjoy his property could be "modified by the exigencies of the social state" (Losee v. Buchanan, 51 N.Y. 476 [1873]). The court added, "We must have factories, machinery, dams, canals and railroads."

At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited U.S. citizens. Realists were skeptical of the traditional description of the U.S. economy as a free market. They felt that the economy was regulated by common-law principles that safeguarded the interests of society's wealthiest members. In support of this contention, realists pointed to landlord-tenant laws that entitled lessors to evict lessees for technical breaches of their lease, labor laws that allowed management to replace striking workers, and contract laws that permitted employers to terminate their workers without justification.

The realists' economic analysis of law spawned two related movements in U.S. jurisprudence that occupy polar extremes on the political spectrum. One is the conservative law and economics movement, whose adherents, most prominent of whom is richard posner, believe that common-law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. The other is the liberal critical legal studies movement, whose adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of dignity and equality.

Since the mid-1900s, the crits have focused less on what they perceive as economic exploitation in the law, and more on what they see as political exploitation. In this regard they have assailed various U.S. courts for advancing the interests of adult, white, heterosexual males at the expense of women, blacks, and homosexuals. The crits have commonly referenced three cases to corroborate this point: McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), in which the Supreme Court rejected a constitutional challenge to capital punishment despite evidence that African American defendants are almost three times more likely than whites to receive the death penalty for murdering a white person; Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), in which the Supreme Court ruled that the equal protection clause of the fourteenth amendment provides less protection against discrimination for women than for members of other minority groups; and Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in which the Supreme Court refused to recognize a constitutional right to engage in sodomy. However in 2003, the Supreme Court overturned the Bowers holding in lawrence v. texas 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508.

The Persuasion and Characteristics of Individual Judges

The second strand of realist thought subscribes to the relativistic view that law is nothing more than what a particular court says it is on a given day, and that the outcome to a legal dispute will vary according to the political, cultural, and religious persuasion of the presiding judge. Some realists, such as jerome n. frank, another prominent thinker in U.S. jurisprudence during the 1920s and 1930s, insisted that a judge's psychological and personality characteristics also sway the judicial decision-making process. Justice benjamin n. cardozo of the Supreme Court went so far as to characterize judges as legislators in robes.

The notion that judges legislate from the bench was a revolutionary idea that flew in the face of orthodox legal thought in the eighteenth and nineteenth centuries. In The Federalist, no. 78, alexander hamilton enunciated the orthodox position when he said the judiciary is the "least dangerous branch" because it has "neither force nor will, but merely judgment." The legislature, Hamilton said, has the power to prescribe the rights and duties by which the country is to be regulated, and the executive has the obligation to enforce these laws through the power of the sword. The role of the judiciary, Hamilton wrote, is simply to interpret and apply the laws passed by the other two branches.

Hamilton's view resonated in the opinions of Chief Justice john marshall, who wrote that "courts are the mere instruments of the law, and can will nothing" (Osborn v. Bank of United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). Judicial power, Marshall said, should never be exercised for the purpose of implementing the will of the judge. Instead, courts must exercise their power solely to implement the will of legislators, who, as the elected representatives of the American people, embody the "will of the law."

Hamilton and Marshall both believed that law is an autonomous body of knowledge independent and distinguishable from the personal preferences of the judge applying it, and that it is possible to interpret this body of knowledge in an objective fashion. Adherents to this theory of law are known as formalists. In the nineteenth century, formalists asserted that state and federal law constitute a rational system of rules and principles that judges can apply in a mechanical fashion to reach a clear, certain, and uncontroversial resolution to a legal dispute.

Realists, such as Justice Cardozo, questioned the formalists' assumption that law could be autonomous and objective, or produce demonstrably certain outcomes. In The Nature of the Judicial Process, a groundbreaking book first published in 1921, Cardozo argued that law is a malleable instrument that allows judges to mold amorphous words like reasonable care, unreasonable restraint of trade, and due process to justify any outcome they desire.

For example, courts are commonly asked to invalidate contracts on the ground that one party exercised duress and undue influence in coercing another party to enter an agreement. Cardozo noted that terms such as duress and undue influence are subject to interpretation. He argued that judges who are inclined to shape the law in favor of society's weaker members will construe them broadly, invalidating many contracts that stem from predatory behavior. On the other hand, judges who are inclined to shape the law in favor of society's stronger members will construe such words narrowly, allowing particular individuals to benefit from their guile and acumen.

Even when language is clear, Cardozo explained, the law often presents courts with competing and contradictory principles to apply and interpret. For example, in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), the New York Court of Appeals was presented with the question of whether a man could inherit under a will that named him as a beneficiary, even though he had murdered the testator, his grandfather. The lodestar of testamentary interpretation, Cardozo observed, is that courts must interpret a will according to the explicit intentions of the testator. In this case, juxtaposed with this seemingly unequivocal rule was the ancient maxim of equity, "No man shall profit from his own wrong." Depending on the outcome the court of appeals desired to reach in Riggs, Cardozo concluded, the panel of three judges could have relied on either legal axiom in support of its decision. In fact, the court was divided on the issue, with two judges voting to disinherit the murderous grandson, and the other voting to enforce the will.

Society's Welfare

Convinced that common-law principles can be manipulated by the judiciary, Cardozo was concerned that instability and chaos would result if every judge followed his or her own political convictions when deciding a case. To forestall the onset of such legal disarray, Cardozo and other realists argued that all judges must interpret the law to advance the welfare of society. In Posner's biography of Cardozo, he quotes him as saying, "Law ought to be guided by consideration of the effects [it will have] on social welfare." This theory of law is known as sociological jurisprudence, and represents the third major strand of thought in the U.S. legal realism movement. Proponents of sociological jurisprudence encouraged judges to consult communal mores, ethics, and religion, and their own sense of justice when attempting to resolve a lawsuit in accordance with the collective good.

Sociological jurisprudence was foreshadowed by English philosopher jeremy bentham, who argued that the law must serve the interests of the greatest number of people in society. Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the collective good in terms of pain and pleasure. Judges should decide cases, Bentham thought, to achieve results that will maximize the pleasure of the majority of the residents in a given community, without much concern for the pain that might be inflicted on the balance of society.

Some realists turned Bentham's philosophy on its head, arguing that the law should serve the interests of the most fragile members in society because they are the least represented in state and federal legislative assemblies. This group of realists was affiliated with the U.S. Progressive movement, which became popular during the first quarter of the twentieth century as it sought to reform society by enacting legislation to protect certain vulnerable classes of employees, particularly women and children, from harsh working conditions. These realists were among the most vocal detractors from the Supreme Court's decision in Lochner, which struck down a state law prescribing the maximum number of hours employees could work during a given week in the baking industry.

A Practical Approach to a Durable Result

Whereas sociological jurisprudence sought to utilize the common law as an engine of social reform, legal pragmatism, the fourth strand of realist thought, sought to employ common-law principles to resolve legal disputes in the most practical way. Pragmatists argued that a judge should undertake a four-step process when rendering an opinion.

First, the judge must identify the competing interests, values, and policies at stake in the lawsuit. Second, the judge must survey the range of alternative approaches to resolving the legal issues presented by the lawsuit. Third, the judge must weigh the likely consequences of each approach, considering the effect a particular decision may have on not only the parties to the lawsuit but also other individuals faced with similar legal problems. Fourth, the judge must choose a response that will yield the most durable result in the course of the law. This pragmatic legal philosophy is often characterized as result-oriented jurisprudence.

A Synthesis of Legal Philosophies

The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that law is best explained as a prediction of what judges will do in a particular case. Empiricists, who were influenced by behaviorists Ivan Pavlov and B. F. Skinner, argued that lawyers can predict the outcome of legal disputes by examining the judicial behavior of a given court.

The empiricists' efforts to integrate the other four schools of legal realism into one coherent philosophy was reflected by their belief that judicial behavior can be influenced by political, economic, sociological, practical, and historical considerations, as well as personal and psychological prejudices and idiosyncrasies. Lawyers and laypersons who spend more time studying these elements and less time studying the labyrinth of legal rules and principles that make up the law, the empiricists concluded, will have a better idea of how a judge will rule in a particular case.

further readings

Fisher, William W., III, Morton J. Horwitz, and Thomas Reed, eds. 1993. American Legal Realism. New York: Oxford Univ. Press.

Hamilton, Alexander. 1787–88. The Federalist Papers no. 78.

Holmes, Oliver Wendell, Jr. 1963. The Common Law. Boston: Little, Brown.

Horwitz, Morton J. 1992. The Transformation of American Law, 1780–1860. New York: Oxford Univ. Press.

Hovenkamp, Herbert. 2000. "Knowledge About Welfare: Legal Realism and the Separation of Law and Economics." Minnesota Law Review 84 (April).

Krawietz, Werner. 2001. "The Concept of Law Revised—Directives and Norms in the Perspectives of a New Legal Realism." Ratio Juris 14 (March).

Patterson, Dennis M. 2002. Philosophy of Law and Legal Theory. Malden, Mass.: Blackwell.

Plato. 1941. The Republic of Plato. Translated by Francis MacDonald Cornford. New York: Oxford Univ. Press.

Posner, Richard A. 2001. Frontiers of Legal Theory. Cambridge, Mass.: Harvard Univ. Press.

——. 1990. Cardozo: A Study in Reputation. Chicago: Univ. of Chicago Press.


Federalist Papers; Legal History; Utilitarianism.