American Realism
8 American Realism
8.1 Introduction
The movement known as American realism dominated American legal
theory for roughly the first half of the 20th century, reaching its peak in the
1920s and 1930s. It constitutes a fairly broad church, but the common creed
is scepticism about the role of rules in judicial decision-making, and an
insistence that the way to discover what the courts do is to examine the law
in action, rather than indulging in abstract theorizing. In A Realistic Jurisprudence: the Next Step (1930) 30 Colum L Rev 431 (reprinted in Jurisprudence: Realism in Theory and Practice, 1962), Karl Llewellyn (1893–
1962), one of the movement’s leading members, summarizes one of its main
tenets by distinguishing what he calls the real rules (which, he says, are in
fact ‘the practices of the courts’ and not rules at all) from what he calls the
paper rules. The real rules are ‘on the level of isness and not of oughtness;
they seek earnestly to go no whit, in their suggestions, beyond the remedy
actually available’.
The effective thrust of American realism is clearly, therefore, in the direction of a theory of interpretation within the context of adjudication. This may
seem rather narrow. After all, a great deal of the work of lawyers involves
clients whose affairs will never trouble any court, and even where proceedings are commenced, it is not uncommon in civil cases for the parties to
settle out of court, and in criminal cases for guilty pleas to be entered, thus
depriving the court of its decision-making role, save for the exercise of
discretion as to sentencing in criminal cases. However, this emphasis is not
unique, being shared, for example, by Dworkin, whose theory is discussed
in Chapter 7. In any event, there can be no doubting the importance of the
activities of the courts within any legal system.
The reasons for the emergence of American realism are complex, but at
least three elements may be identified.
First, it is a commonplace comment that American legal theorists tend to
concentrate to a much greater extent than their English counterparts on the
functioning of the judicial process. The equally commonplace explanation
for this emphasizes the fact that the American legal system has a genuinely
supreme court, with the power to quash legislation on constitutional
137
grounds, and concludes that this power of an unelected judiciary over the
products of an elected legislature is itself sufficient to justify giving the
closest possible scrutiny to the judicial process. (In the context of the
English legal system, of course, no court is supreme in the sense of having
the power to quash statutes, quite apart from the oddity that the definition of
‘the supreme court’ contained in the Supreme Court Act 1981 does not
include the Appellate Committee of the House of Lords.)
Secondly, the idea of a sovereign (which, as we saw in Chapter 4 is one of
the key elements in Austin’s command theory of law, which dominated
English-language legal theory at the time of the emergence of American
Realism) does not fit easily into the American legal system, which is based
on a political structure consisting of a federal legislature and a multiplicity of
state legislatures.
Thirdly, the dominant influence on American legal education at the end of
the 19th century was Christopher Columbus Langdell, Dean of the Harvard
Law School. In the preface to his Selection of Cases on the Law of Contracts
(1871), Langdell asserts that ‘It is indispensable to establish at least two
things, first that law is a science; secondly that all the available materials of
that science are contained in the printed books’. As Gary Minda puts it,
‘Langdellians believed that the object-forms of law were immune from the
ever-changing nature of society. Society might change, but they thought that
the universal principles of law would endure forever.’ (Postmodern Legal
Movements, 1995, pp. 15–16.) While this position is plainly untenable when
viewed from the modern perspective, there is no doubt that it commanded
widespread support at the time. However, there were sceptics even then,
principal among whom was Oliver Wendell Holmes, one of the founding
fathers of American realism.
8.2 The Basis of American Realism
Although, as we shall see, there are differences of opinion and emphasis
between various members of the American realist movement, in Some
Realism About Realism (1931) 44 Harv LR 1222, Llewellyn identifies nine
‘points of departure’ to which all would be willing to subscribe. Briefly,
these nine points come down to saying that the problems of the law should
be approached in the light of certain propositions which may be summarized
as follows. Law is a means to a social end, rather than being an end in itself,
and therefore it should be evaluated in terms of its effects. Furthermore, both
law and society are in a constant state of flux, although legal change typically lags behind social change, so there is a need to keep the law under
constant review. Value judgments are essential when identifying the objectives which the law should seek to achieve, but while the law is being
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critically examined, is must be divorced from ought otherwise our perception of how things are is likely to be tainted by our belief as to what they
ought to be. Legal rules and concepts should be distrusted where they
purport to describe what actually happens within the legal system, and legal
theory should be distrusted where it suggests that legal rules govern the decisions of the courts. Cases and legal situations should generally be grouped
together into narrower rather than broader categories, and this is particularly
so where the rules and concepts are expressed in simple language, because
this tends to conceal the complex range of situations to which they apply.
8.3 Law as Prophecy
In one of American realism’s most famous texts, Oliver Wendell Holmes
(1844–1935), who became a distinguished member of the Supreme Court, says:
‘Take the fundamental question, what constitutes the law? You will find
some text writers telling you that it is something different from what is
decided by the courts of Massachusetts or England, that it is a system of
reason, that it is a deduction from principles of ethics or admitted axioms
or what not, which may or may not coincide with the decisions. But if we
take the view of our friend the bad man we shall find that he does not care
two straws for the axioms or deductions, but that he does want to know
what the Massachusetts or English courts are likely to do in fact. I am
much of his mind. The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.
‘Take again a notion which as popularly understood is the widest
conception which law contains; – the notion of legal duty.... We fill the
word with all the content which we draw from morals. But what does it
mean to a bad man? Mainly, and in the first place, a prophecy that if he
does certain things he will be subject to disagreeable consequences by
way of imprisonment or compulsory payment of money.’ (Emphasis
added. The Path of the Law (1897) 10 Harv LR pp. 460–1.)
The importance of making prophecy (or, to use a less emotive term,
prediction) as accurate as possible may be self-evident, but this does not
prevent Holmes from spelling it out:
‘In societies like ours the command of the public force is entrusted to the
judges in certain cases, and the whole power of the state will be put forth,
if necessary, to carry out their judgments and decrees. People want to
know under what circumstances and how far they will run the risk of
coming against what is so much stronger than themselves.... The object of
American Realism 139
our study, then, is prediction, the prediction of the incidence of the public
force through the instrumentality of the courts.’ (Op. cit., p. 457.)
Holmes’ realism may sound entirely practical and, in that sense, too antiintellectual, or even too untheoretical, to qualify as a serious contribution to
legal theory. However, William Twining argues that, when full regard is had
to its context, The Path of the Law ‘should be interpreted more as a contribution to legal education than to legal philosophy’. (Other People’s Power: the
Bad Man and English Positivism, at p. 110, in Globalisation and Legal
Theory, 2000, being a shortened version of a paper first published in (1997)
63 Brooklyn LR 189.) On this reading of the evidence, Holmes’ argument is
best seen as a device to encourage law students to
‘substitute for the point of view of the appellate judge the lowly one of an
ordinary citizen or his/her legal adviser (counsellor) and make that citizen
amoral… [so that the students]... could see law from a perspective that is
both hard-nosed and closer to the realities of everyday legal practice.’
(Op. cit., p. 111.)
In support of this view, Twining points out that Holmes’ emphasis on the
bad man and the prediction of judicial outcomes, concentrates exclusively
on the judicial function. However, this emphasis is common among American legal theorists (see, for example, Dworkin, whose work, is discussed in
Chapter 7). Moreover, at least some teachers of law would like to think that
legal theory suffuses much of their work. Those teachers would, therefore,
seek to challenge Twining’s view to the extent that it impliedly asserts that
legal theory and legal education are intrinsically different from each other.
Irrespective of the label under which his comments are presented,
however, Holmes may be said to be seeking to advance an enlightened view
of the way in which the law functions. His view is characterized by a recognition of the place of the law in the real world, which it both informs and is
informed by. The true significance of this view, when it is placed in its
historical context, is the extent to which it represents a significant departure
from the spuriously scientific conceptualization of Langdell, which at that
time represented the established orthodoxy in American law schools and
consequently in the American legal profession.
Finally, the emphasis on the importance of the courts and their role leads
one American realist to resurrect an old argument to the effect that even statutes do not have the status of law, being at most a source on which the courts
draw in order to make law.
‘It has been sometimes said that the Law is composed of two parts – legislative law and judge-made law, but in truth all the Law is judge-made law. The
140 Legal Theory
shape in which a statute is imposed on the community as a guide for conduct
is that statute as interpreted by the courts. The courts put life into the dead
words of the statute. To quote... from Bishop Hoadley [an 18th century
English clergyman]... “Nay, whosoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the law Giver to all
intents and purposes, and not the Person who first wrote or spoke them”.’
(John Chipman Gray, The Nature and Sources of Law, 1909, pp.119–120.)
While most people would accept that this view overstates the case, it
undoubtedly provides food for thought.
8.4 Rule-Scepticism
The scepticism of rule-sceptics relates not to the existence but to the role of
legal rules. There is no better starting point than the opening passage of the
first page of Holmes’ textbook The Common Law, published in 1881:
‘The object of this book is to present a general view of the Common Law.
To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result,
but it is not all. The life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow men, have had a good deal
more to do than the syllogism in determining the rules by which men
should be governed.’ (Emphasis added.)
Elsewhere, he develops the relationship between logic and the judicial
process thus:
‘The training of lawyers is a training in logic.... The language of judicial
decision is mainly the language of logic. And the logical method and form
flatter that longing for certainty and for repose which is in every human
mind. But certainty generally is an illusion, and repose is not the destiny
of man. Behind the logical form lies a judgment as to the relative worth
and importance of competing legislative grounds, often an inarticulate
and unconscious judgment it is true, and yet the very root and nerve of the
whole proceeding. You can give any conclusion a logical form.’
(Emphasis added. Op. cit., p. 461.)
In other words, and bearing in mind (as Holmes expressly acknowledges in
the passage taken from The Common Law) the central position of syllogistic
American Realism 141
reasoning within judicial method (where the major premise is a proposition of
law and the minor premise is a finding of fact), there may well be what can be
termed an ‘inarticulate major premise’, which precedes, and effectively
governs the outcome of, the express and formal part of the judge’s reasoning.
Of course, the inarticulate nature of the inarticulate major premise means that
its content is very difficult (or even impossible) to identify in individual cases.
However, while giving judgment a judge will sometimes articulate what could
have been left inarticulate, thus making it much easier to understand the
fundamental importance of the kind of intellectual or emotional starting point
which Holmes has in mind. Two examples will suffice.
In Bourne v Norwich Crematorium Ltd [1967] 1 All ER 576, the issue
was whether expenditure on a furnace chamber and chimney tower built by
a crematorium company qualified for a tax allowance. This depended
upon whether it was ‘an industrial building or structure’ for the purposes of
the Income Tax Act 1952, and this in turn depended upon whether it was
used
‘for a trade which consists in the manufacture of goods or materials or the
subjection of goods or materials to any process.’
In the course of his judgment, Stamp J said:
‘I would say at once that my mind recoils as much from the description of
the bodies of the dead as “goods or materials” as it does from the idea that
what is done in a crematorium can be described as “the subjection of” the
human corpse to a “process”. Nevertheless, the taxpayer so contends and I
must examine that contention.’
Given this as the judge’s starting point, it is not surprising that the statutory ‘rule’ was interpreted in such a way that the taxpayer lost.
In R v West Dorset District Council ex parte Poupard (1987) 19 HLR
254, Mr and Mrs Poupard had capital assets but they were meeting their
weekly living expenses by drawing on an overdrawn bank account. They
applied to the council for housing benefit. This benefit was subject to a
means test, and therefore the question arose as to whether the drawings
were ‘income’. If they were, the amounts involved were sufficient to
disqualify the applicants from receiving assistance under the relevant
Regulations.
The council’s Housing Review Board concluded that the drawings were
income. The High Court held that in each case it was a question of fact
whether specific sums of money were ‘income’, and that this question was to
be decided on the basis of all that the council and their Review Board knew
of the sources from which an applicant for benefit was maintaining himself
142 Legal Theory
and paying his bills. The conclusion was that on the present facts the local
authority and their Review Board had made no error of law, and had acted
reasonably in reaching their decision.
On his way to reaching his decision, Macpherson J, adopting an argument
advanced by counsel for the local authority, said:
‘The scheme [of Housing Benefit] is intended to help those who do not
have the weekly resources to meet their bills, or their rent, and it is not
intended to help comparatively better-off people (in capital terms) to
venture into unsuccessful business and not to bring into account moneys
which are regularly available for day-to-day spending, albeit that the use
of moneys depletes their capital.’
Although the Court of Appeal (1988) 20 HLR 295 upheld this decision, it
will nevertheless be apparent that, with equal or even greater logic, a court
with different sympathies could have upheld the argument that the weekly
drawings were outgo, rather than income, because each drawing increased
the drawer’s indebtedness to the bank. After all, it can be argued that if
Parliament had intended to exclude people such as the applicants from eligibility for housing benefit it would have been a simple enough matter to enact
an appropriate definition of what was meant by ‘income’ for the purposes of
the means test.
Before leaving rule-scepticism, it is worth emphasizing that its followers
do not jettison the concept of legal rules altogether: they merely stress the
importance of other factors within the process of judicial reasoning. As
Llewellyn puts it (op. cit., p. 37):
‘Rules, concepts, ideology... ideological stereotypes... [and]... patterns...
are, by themselves, confusing, misleading, inadequate to describe and
explain. But a jurisprudence which was practically workable could not be
built in terms of them, if they had not contained a goodly core of truth and
sense.’
8.5 Fact-Scepticism
Jerome Frank (1889–1957), whose personal preference would have been for
American realism to be called constructive scepticism, (see Law and the
Modern Mind, preface to the sixth printing, 1949, p. vii), identifies a variety
of realism which he labels fact-scepticism. This may be best described as a
form of ultra-realism, which builds on, rather than being an alternative to,
rule-scepticism.
American Realism 143
Frank puts his own commitment to rule-scepticism beyond question, at
the same time as explaining the basis of fact-scepticism:
‘Rules (whether made by legislatures or judge-made) are embodiments of
social policies, values, ideals, and... for that reason... should be recurrently and informedly re-examined...
‘But the rules, statutory or judge-made, are not self-operative. They are
frustrated, inoperative, whenever, due to faulty fact-finding in trial courts,
they are applied to non-existent facts.’ (Op. cit., p. xxiv.)
Frank plainly regards fact-scepticism as being even more realistic than rulescepticism.
‘Generally, most of the rule-sceptics, restricting themselves to the uppercourt level, live in an artificial two-dimensional legal world, while the
legal world of the fact-sceptics is three-dimensional. Obviously, many
events occurring in the fact-sceptics’ three-dimensional cosmos are out of
sight, and therefore out of mind, in the rule-sceptics’ cosmos.’ (Op. cit., p.
ix.)
Putting his argument in rather more detail, Frank points out that when trial
courts receive conflicting oral evidence, they have to decide which
witnesses they believe, or, as he puts it, ‘a fact-finder... is himself a witness –
a witness of witnesses’. (Op. cit., pp. xx–xxi.) In English terms, the decision-makers on matters of fact will be either judges, jurors or magistrates,
depending on the level of the court and the type of proceedings, but whoever
they are, the fact that they are human means that they may well have prejudices which will colour the way they view the parties, the witnesses or even
the lawyers. Those prejudices may be relatively easily identifiable where
they are based on racial, religious, political or economic factors, but those
which involve attitudes to women or to ‘men with deep voices or highpitched voices, or fidgety men, or men who wear thick eyeglasses, or those
who have pronounced gestures or nervous tics’ will be much more likely to
go undetected. (The placing of sexual prejudice in a different category from
its racial and religious counterparts provides an interesting insight into the
attitudes of the times.) For Frank, therefore,
‘the chief obstacle to prophesying a trial-court decision is... the inability,
thanks to these inscrutable factors, to foresee what a particular trial judge
or jury will believe to be the facts.’ (Op. cit., p. xi.)
Having considered both the mainstream varieties of American realism, we
can now turn to a later stage in Llewellyn’s career when the emphasis shifts
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from straightforward scepticism to the development of the concept of lawjobs.
8.6 Law-Jobs
Llewellyn’s emphasis on the importance of the effects of law (see p. 138)
leads him in his later work to develop the idea of law as an institution which
exists to ensure that certain jobs (which he calls ‘law-jobs’) are done. These
law-jobs are common to all societies because they are essential if society is
to be prevented from disintegrating. The essence of these law-jobs is those
activities which would now be called problem avoidance and dispute resolution, as well as the allocation and exercise of public authority. Since these
jobs have to be done, it is not surprising that people develop the skills (which
he calls ‘law-crafts’) to do them. These law-crafts include not only the major
activities of advocacy, advising clients, judging, legislating and administering, but also things such as policing, teaching and scholarship.
As far as advising clients is concerned, there remains, of course, the
problem of whether the judicial decision-making process is predictable (or,
to use Llewellyn’s own term ‘reckonable’):
‘The average lawyer has only to shift his focus for a few hours from “what
was held” in a series of opinions to what was bothering and what was
helping the court as it decided... [and] there can be no question as to the
gain in predictive power. Spend a single thoughtful weekend with a
couple of recent volumes of reports from your own supreme court, read
this way, and you can never again, with fervour or despair make that
remark about never knowing where an appellate court will hang its hat.
Spend five such weekends, and you will be getting a workable idea of the
local geography of hat-racks.’ (The Common Law Tradition: Deciding
Appeals, 1960, p. 179.)
The law-jobs aspect of Llewellyn’s theory, therefore, clearly reinforces
the basic tenet of American realism that judges who are trying to apply legal
rules to the fact-situations which come before them must recognize that the
function of those rules is limited to guiding, rather than controlling, the decision-making process. More particularly, he says that the judges will be
guided in each case by what he calls their situation-sense. His own account
of this phrase is less than lucid, but in essence it involves categorizing both
the interests which are in conflict, and any relevant policy considerations, as
well as the facts which give rise to the case in the first place.
To take an English example of Llewellyn’s situation-sense in action, the
case of Beatty v Gillbanks (1882) 9 QBD 308 arose because parades by the
American Realism 145
Salvation Army through Weston-super-Mare had provoked violent opposition from an organization calling itself the Skeleton Army. The High Court
allowed an appeal against an order of the magistrates’ court binding over
certain members of the Salvation Army. On the issue of principle, Field J
said:
‘What has happened here is that an unlawful organization has assumed to
itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man
may be convicted for doing a lawful act if he knows that his doing of it
may cause another to do an unlawful act. There is no authority for such a
proposition.’
On the other hand, in Duncan v Jones [1936] 1 KB 218, Duncan, a leftwing activist, wished to address a public meeting outside a training centre
for the unemployed in an exceptionally depressed part of London. On a
previous occasion when she had done so, there had been a disturbance at the
training centre, and accordingly a police officer tried to move the meeting
some 175 yards away to a different street. When Duncan refused to move,
she was arrested for wilfully obstructing the police in the execution of their
duty. The question which arose, therefore, was whether the police officer
had been acting in the execution of his duty. Upholding her conviction by
the magistrates’ court, Lord Hewart CJ said:
‘If I thought that the present case raised [the] question... [of]... whether an
assembly can properly be held to be unlawful merely because the holding
of it is expected to give rise to a breach of the peace on the part of persons
opposed to those who are holding the meeting... I should wish to hear
much more argument before I expressed an opinion. This case, however,
does not even touch that important question.
‘...in my view Beatty v Gillbanks is apart from the present case. No
such question as that which arose there is even mooted here.’
When viewed in Llewellyn’s terms, it can be said that the judges in these
cases had different situation-senses. In Beatty v Gillbanks the judge saw the
Salvation Army as merely exercising a lawful right, whereas in Duncan v
Jones the judge did not see the case as raising an issue as to the right (if any)
of public assembly. Whether the difference in situation-sense can be justified is, of course, another matter. It could be argued that, in terms of the preservation of public order (which must be at least one of the functions of law),
there is a valid distinction between the activities of a socially accepted and
charitably oriented Christian organization in a sedate Victorian seaside
resort, and those of a left-wing agitator in a depressed area of London at a
146 Legal Theory
time of high unemployment. On the other hand, approaching the question
from a standpoint which emphasizes the importance of individual rights,
you could argue that it was the duty of the police in Duncan v Jonesto ensure
that Duncan could address her meeting without a disturbance occurring; or
at least to arrest anyone who caused a disturbance.
Apart from its application to the facts as well as the law, it will be apparent
that Llewellyn’s situation-sense is a kind of precursor of Dworkin’s
concepts of justification and fit, which are discussed at p. 128.
Developing the idea of judging as a law-craft, Llewellyn speaks of the
period style of judgments, in which connection he distinguishes the formal
style from the grand style. Clarifying the basic terminology, he says:
‘Style refers in this connection not to literary quality or tone but to the
manner of doing the job, to the way of craftsmanship in office, to a functioning harmonization of vision with tradition, of continuity with growth,
of machinery with purpose, of measure with need.’ (Op. cit., p. 37.)
Proceeding to the distinction between the two styles, he says the formal
style of judgment involves the application of established legal rules, and is
essentially backward-looking. Judges who adopt this style believe that
‘the rules of law are to decide cases; policy is for the legislature, not for
the courts, and so is change even in pure common law. Opinions run in
deductive form with an air or expression of single-line inevitability.
“Principle” is a generalization producing order which can and should be
used to prune away those “anomalous” cases or rules which do not fit,
such cases or rules having no function except, in places where the
supposed “principle” does not work well, to accomplish sense – but sense
is no official concern of a formal-style court.’ (Op. cit., p. 38.)
On the other hand, the grand style of judgment (which is ‘a way of
ongoing renovation of doctrine’) welcomes precedents, and may find them
very persuasive, but will nevertheless ‘almost always’ test them ‘against
three types of reason’. Llewellyn explains the ‘three types of reason’ thus:
‘The reputation of the opinion-writing judge counts heavily (and it is right
reason to listen carefully to the wise). Secondly, “principle” is consulted
to check up on precedent, and... in this way of work “principle” means no
mere verbal tool for bringing large-scale order into the rules, it means a
broad generalization which must yield patent sense as well as order, if it is
to be “principle”. Finally, “policy”, in terms of prospective consequences
of the rule under consideration, comes in for explicit examination by
reason in a further test of both the rule in question and its application....
American Realism 147
The better and best law is to be built on and out of what the past can offer;
the quest consists in a constant re-examination and reworking of a heritage...’ (Op. cit., p. 36.)
Furthermore, this grand style of judgment
‘is the best device ever invented by man for drying up that free-flowing
spring of uncertainty, conflict between the seeming commands of the
authorities and the felt demands of justice.’ (Op. cit., pp. 37–8.)
Llewellyn himself provides what is perhaps the best summary of his
version of American realism: ‘realism is not a philosophy, but a technology... a method, nothing more’. (Original emphasis. Op. cit., p. 510.)
8.7 American Realism and After
In terms of American politics, the economic and social turmoil which flowed
from the Wall Street crash of 1929 and the ensuing Great Depression, gave
rise to Roosevelt’s New Deal, with its emphasis on welfare liberalism in
general and the legitimacy of the regulatory role of the state in particular.
Furthermore, this political philosophy was necessarily unsympathetic to the
primacy of individual rights and freedoms which had characterized much of
the 19th century common law and which had largely provided the basis for
Langdell’s conception of the scientific principles of law. Quite apart from
any immediate impact it may have had on practitioners, therefore, American
realism had an important role to play in seeking to change the aims and
objectives of American legal education. In Neil Duxbury’s words:
‘Whereas a basic tenet of realism was that the abstract concepts of legal
formalism must be brought down from the clouds and shown for what they
are – that is, limited, pliable, often flawed tools for dealing with disputes and
social problems – an equally basic requirement of the New Deal agencies...
was a legal staff trained to treat law as a tool for shaping social policy.’
(Patterns of American Jurisprudence, corrected edn, 1997, p. 155.)
In order to assess the longer term impact of American realism, Minda
emphasizes the subdivision of the movement as a whole into radical realism
and progressive realism. (Op. cit., pp. 28–33.) Radical realism was the more
politically motivated version, while progressive realism ‘rejected the
conceptualism of legal formalists and turned to social science approaches in
developing new objective policy analyses of the law’. (Op. cit., p. 30.)
However, the progressive realists’ redefinition of the conceptual framework
148 Legal Theory
was not as liberating as they imagined it would be, because their thought
became limited by the social scientific concepts which they had adopted, just
as Langdell’s perspective had become limited by the concepts which he had
formulated.
In the medium term, a more widespread acceptance of the legitimacy of
the state’s role in relation to welfare and regulation led to radical realism
losing its specific identity. Similarly, progressive realism developed into the
law in context approach which has come to be a major part of the mainstream
of legal scholarship.
In the longer term, however, the politically questioning impetus which
gave rise to radical realism reasserted itself in the origins of critical legal
studies, to which we will return in Chapter 9.
Summary
1 American realism places the emphasis on law in action rather than law in
books. Accordingly, while realists accept that legal rules exist and are
important, they are sceptical of claims that the rules determine the
outcome of legal disputes, and point to a variety of other factors which
also contribute to the decision-making process. (Realists who emphasize this aspect of realism are rule-sceptics.) Additionally, some realists
(fact-sceptics) emphasize that in practice the courts’ core task is often
fact-finding, and therefore the way in which this process operates is
central to the judicial process.
2 Llewellyn’s version of realism sees law as a craft, within which there are
certain law-jobs which have to be done.
3 American realism is, to some extent, the forerunner of critical legal
studies.
Reading
Duxbury, Neil, Patterns of American Jurisprudence, corrected edn, 1997
Frank, Jerome, Law and the Modern Mind, 6th printing, 1949
Gray, John Chipman, The Nature and Sources of Law, 1909
Holmes, Oliver Wendell, The Common Law, 1881
Holmes, Oliver Wendell, The Path of the Law (1897) 10 Harv LR 461
Langdell, Christopher Columbus, Selection of Cases on the Law of Contracts, 1871
Llewellyn, Karl, A Realistic Jurisprudence: the Next Step (1930) Colum L Rev 431
Llewellyn, Karl, The Common Law Tradition: Deciding Appeals, 1960
Llewellyn, Karl, Some Realism About Realism (1931) 44 Harv LR 1222
Minda, Gary, Postmodern Legal Movements, 1995
Twining, William, Other People’s Power: the Bad Man and English Positivism in
Globalisation and Legal Theory, 2000
American Realism 149
