Legal Realism | Research & Encyclopedia Articles

Beginning about 1920, an iconoclastic group of American legal writers, led by K. N. Llewellyn, Walter Wheeler Cook, Jerome Frank, Herman Oliphant, and Underhill Moore, denounced the established legal tradition as formalistic and conservative. That tradition, they charged, wrongly saw the law as a complete and autonomous system of logically consistent principles, concepts, and rules. To apply the law was to unfold the ineluctable implications of those rules. The judge's techniques were socially neutral, his or her private views irrelevant; judging was more like finding than making, a matter of necessity rather than choice. The realists, by contrast, saw legal certainty as rarely attainable and perhaps even undesirable in a changing society. In their view the paramount concern of the law was not logical consistency but socially desirable consequences. Law was an instrument of government, and jurisprudence should focus less on legal concepts than on social facts.

According to the realists, legal decisions were not compelled; choice was necessary at every step. Just as lawmakers built their ideological preferences into a statute, judges built theirs into their formulation of "the facts" of a case. Legal concepts represented nothing more than tentative decisions to consider diverse cases identical with respect to a given concern. Unless readjusted continually, such concepts could be rendered irrelevant by changing circumstances and purposes.

Realism meant opposition to illusion or pretense, sometimes to abstractions or appearances. Judges had always made law, but now, the realists insisted, they must know and say that they did. They must acknowledge their responsibility instead of attributing their choices, through tortured technicalities, to the compulsions of legal doctrine. (Oliver Wendell Holmes, the favorite judge of the realists, had said that law becomes more civilized as it becomes more self-conscious.) If the judges' latent motives and official reasons were reconciled, their judgments would be not only more honest but more informed. Moreover, assumptions about the nature of law could then be considered in the light of scientific knowledge of the actual workings of legal institutions, and assumptions about social policy could be seen in the light of scientific knowledge about society. The realists took the possibility of such scientific knowledge for granted. They further assumed that society had its own mechanisms for effecting changes and that, in general, the law should reflect social change, not shape it. Yet the realists avoided the conservative conclusions that usually accompany this view, for being, above all, reformers, they believed that the constant flux of modern society required a legal system flexible enough to match its pace.

Like other iconoclasts, the realists saw rationalization and self-deception beneath traditional claims to objectivity. They "saw through" appearances, theories, and justifications to underlying motivations or functions. They sought complete candor. The natural sciences provided their model; John Dewey, their philosophical vocabulary. They also drew on the tradition of sociological jurisprudence, which in both Europe and America had already prescribed the study of society as the proper way to discover social preferences beneath the neutral forms of the law.

These ideas were more influential in America because of the unique power of American judges to declare statutes unconstitutional. Moreover, the differences among the states in their approach to identical legal problems frustrated belief in inexorable solutions. Thus, Holmes had asserted since the 1870s that "the true grounds of decision are considerations of policy and of social advantage." John Chipman Gray saw the sources of law brought to life only in the crucial act of judicial interpretation; he believed that since courts have the last word, "all law is judge-made law." At the turn of the twentieth century Roscoe Pound attacked "mechanical jurisprudence," distinguished "law in action" from "law in books," and conceived of a sociological jurisprudence that would increase legal sensitivity to social needs and to the social effects of legal rules.

The realists were distinctive, however, in their preoccupation with the processes of judicial decision, with how law is made. They put forward a theory of precedent starting from Llewellyn's assertion that "a case stands not for one thing, but for a wide variety of things." Following Dewey, for whom a judgment was always somebody judging something, they stressed the crucial position of the judge who decided whether a case was "the same" as a previous case—that is, which similarities between them should be considered important. Skeptical of principles abstracted from a particular factual context, the realists found support in the common-law tradition that principles should evolve from rather than precede the disposition of particular cases. They trusted the judge's trained reaction to the entire set of facts before him—his "intuition of experience" (Oliphant), which depended on "knowing how" rather than "knowing that"—much more than they trusted the justification he supplied in his opinion. They therefore wanted precedents to be based on what a court actually did in response to a particular set of facts, not on its language. But emphasizing particularity means getting less direction from previous cases, for facts vary enormously. The more that precedent presupposes factual similarity between cases, the fewer its applications; future judges are freer. No two cases are identical, and if any distinction distinguishes, no precedents are possible. Logically, it is always open to a judge to decide either way, to see a previous case as a precedent or not. Some realists therefore concluded that every decision was a "free" moral decision. This conclusion, shorn of the analysis of the logic of precedent behind it and interpreted simply as giving judges greater discretionary power than the traditional view allowed them, was seen by most of the legal community as the essential message of legal realism.

Grant Gilmore has related the realist's view of precedent to the remarkable increase, starting around 1890, in the amount of litigation and in the proportion of cases reported, an increase that threatened to inundate a system depending on "a comfortable number of precedents, but not too many." According to Gilmore, the realists responded to this crisis by allowing fewer cases to count as precedents. In this way, Gilmore has noted, legal realism was part of the major social developments of 1880–1930, notably the rise of urbanism and modern industrialism and technology; during this period realism was not confined to the law. The search for fact, for concreteness, for the truth behind appearances, can be found everywhere—in literature, in painting, in social criticism. Consider, for example, the salient characteristics of a movement quite unrelated to legal theory—progressive education. For both progressive education and legal realism, pursuing "reality" meant going from theoretical formulas to what worked in practice, from books to life, from text to context, from passively and mechanically transmitting a received tradition to actively and flexibly responding to each pupil or case. Both progressive education and legal realism flourished in the 1930s during the New Deal. Both can be seen as to some extent a response to sheer numbers, to universal education and the increase in litigation, respectively.

Throughout the law the realists contributed to greater candor about the social bases of decision. They also suggested specific improvements in practical areas of the law—for example, Charles E. Clark on covenants' running with the land, Cook on conflict of laws, Arthur Corbin on contracts, Leon Green on torts, and Llewellyn on sales. On the other hand, they underestimated the role of generalization and of justification in the law. Dewey had distinguished clearly between the "logic of inquiry" and the "logic of exposition," between an argument's source and its persuasiveness. Yet the realists often pointed to a judge's psychological processes or social background as if they were demonstrating the irrelevance of her justifications or the speciousness of her claim to be applying rules.

Realism is especially inadequate if taken to be the comprehensive explanation or theory of the nature of law suggested by the definitional form of certain central realist slogans. Thus, realists constantly endorsed Holmes's statement that "the prophecies of what the courts will do in fact … are what I mean by the law." This remark can be accepted as a paradoxical emphasis on the individual discretion inherent in applying "open-textured" concepts to particular circumstances; accordingly, the exercise of individual discretion becomes part of any adequate concept of law. But Holmes's remark cannot be accepted if it is read as an assertion that the best understanding of legal reality derives from equating law with prediction. A predictive viewpoint obscures the role of legal rules as guides to conduct. As H. L. A. Hart said, "legal rules function as such in social life: they are used as rules not as descriptions of habits or predictions" (The Concept of Law, Oxford, 1961, pp. 134–135). If the normative character of legal rules were not generally accepted, our concept of law would be entirely different.

However, it may be that attempts, like that of the realists, to jolt accepted habits of thought must rely on paradox and exaggeration. Pierre-Joseph Proudhon said, "Property is theft," knowing full well the immediate sense in which "property" is not "theft" at all. In jurisprudence the very distortion frequently produces the insight; we often learn more from a caricature than from a photograph.

Dewey, John; Hart, Herbert Lionel Adolphus; Philosophy of Law, History Of; Philosophy of Law, Problems Of; Proudhon, Pierre-Joseph; Realism.

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Fuller, Lon. "American Legal Realism." University of Pennsylvania Law Review 82 (1934): 429–462.

Gilmore, Grant. "Legal Realism: Its Cause and Cure." Yale Law Journal 70 (1961): 1037–1048.

Horwitz, Morton J. The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Kalman, Laura. Legal Realism at Yale: 1927–1960. Chapel Hill: University of North Carolina Press, 1986.

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Twining, William. Karl Llewellyn and the Realist Movement. London: Weidenfeld and Nicholson, 1973.

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