The turn of the 20th century instigated the rejection of the formalism movement of John Austin, Jeremy Bentham, John Mill and David Hume. “Realists” sought to put in its place a more sociological account of the ‘law in action’. [2] The three leading members of the American realist movement were Oliver Wendell Holmes Jnr, [3] Jerome Frank [4] and Karl N. Llewellyn. [5] 67
Principles
Realists were preoccupied with empirical questions such as attempting to identify the sociological and psychological factors influencing judicial decision making. [8] One could argue that their implicit conceptual loyalties were positivist in theory, as they did not reject the notion that courts may be constrained by rules. However, realists did argue that the Courts exercise discretion much more often than is generally supposed. [9] Further they denied the naturalist and positivist views that Judges were influenced mainly by legal rules, they (realists) attach greater significance to political and moral intuitions about the facts of a case. [10]
II American Realists
A. Oliver Wendell Holmes Jnr
Oliver Wendell Holmes Jnr (“Holmes”) could be called the intellectual and spiritual father of American Realism, and played a fundamental part in bringing about a changed attitude to law. [11] Holmes attempted to formulate a theory of law that was both responsive and stable for the changing nature of modern life. [12] 13He commenced with the fundamental question of liability: ‘What duty do human beings owe to one another?’ [14]
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‘Formalist legal doctrine held that there “could be no liability without fault”, that people should not be held responsible for acts that they did not cause or over which they had no control’. [15] 16Holmes considered an alternative to this intent standard that ‘If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor” (ie. strict liability). [17] Holmes argued that the proper object of the law was to publicize social duties by giving individuals a fair chance to avoid harm before being responsible for it – it was not to instil individual morality through punishment. [18]
Holmes believed in defining the law by reference to what the Court actually said it was, to consider what the law is, not what it ought to be. [19] He famously declared ‘The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified…’. [20]
Further, Holmes introduced the ‘bad man’. As a moral skeptic, Holmes stated ‘if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict. [21] Holmes defined the law in accordance with his pragmatic judicial philosophy. He believed ‘that legal developments could be scientifically justified: the “true science of law” consisted in the establishment of its postulates from within upon accurately measured social desires instead of tradition.’ [22]
B. Jerome Frank
Jerome Frank (“Frank”) has been described as the most radical of the American realists. [23] ‘Frank believed that there are two groups of realists, ‘rule skeptics’ – who regard legal uncertainty as residing principally in the paper rules of law and who seek to discover uniformities in actual judicial behaviour, and ‘fact skeptics’, who think that the unpredictability of court decisions resides primarily in the elusiveness of facts’. [24] ‘The former, Frank proposes, makes the mistake of concentrating on appellate courts, whereas it is to the actions of trial courts that attention should be most directed’. [25]
Frank believed that for most realists, ‘in their preoccupation with appellate courts, missed the important aspect of unpredictability in the judicial process: the elusiveness of facts’. [26] Thus, the various prejudices of judges and jurors [27] often crucially affect the outcome of a case. [28]
Further, the main impetus of Frank’s attack was directed against the notion that certainty could be achieved through legal rules’. [29] Frank believed this to be absurd. [30] ‘Frank stressed that the text-book approach, which treats the law as no more than a collection of abstract rules, is grossly misleading and that much of legal uncertainty is inherent and not due to deliberate mystification’. [31] ‘We want the law to be certain, Frank stated, because of our deep need for security and safety which is endemic to children’. [32] ‘As a child places his/her trust in the wisdom of his/her father, so we seek in the law and other institutions a similarly comforting security’. [33]
C. Karl N. Llewellyn
Karl Lleyellyn’s (“Llewellyn”) most noteworthy contribution to realism is his “functionalism”, which perceives law as serving certain fundamental functions. [34] 35For Llewellyn, an institution is an organised activity which is built around doing a “job” or a “cluster” of jobs. A “major” institution’s “job cluster” is fundamental to the continuance of the society or group in which it operates. [36] If society is to survive, certain basic needs must be satisfied, which engenders conflict which must be resolved. [37]
‘Much of Llewellyn’s interest has been focussed on what Llewellyn calls the ways in which in various types of community the “law jobs” are actually carried out. [38] “Law Jobs” are the basic functions of the law, which, for Llewellyn, are two-fold: “to make group survival possible”, but additionally, to “quest” for justice, efficiency and a richer life. [39]
“Law jobs” are identified as being ‘the:
disposition of troubled cases;
preventive channelling and the reorientation of conduct and expectations so as to avoid trouble;
allocation of authority and the arrangement of procedures which legitimatize action as being authoritative;
net organisation of the group or society as a whole so as to provide direction and incentive’. [40]
Llewellyn sees these “law jobs” as universal [41] and regards the most important job the law has is the disposition of troubled cases. [42] He puts forward his theory of them as a general framework for the functional analysis of law. [43] ‘The first three “law jobs” describe “bare bones” law, but out of them may emerge, although Llewellyn gives no indication how, the additional “questing” phase of the legal order’. [44]
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Further, in addition to major institution’s, there are also “minor” institutions such as “crafts” which consist of the skills held by a body of specialists, [45] handed down from generation to generation by a process of education and practical example. [46] The practice of law is the practice of a set of crafts, and of these one of the most important is what is called the “juristic” method. [47]
In the common law, says Llewellyn, the practice of the courts has fluctuated between two types of style which he names the “Grand Style” and the “Formal Style”. ‘The Grand Style is based on an appeal to reason and does not involve a following of precedent; regard is paid to the reputation of the Judge deciding the earlier case, and principle is consulted in order to ensure that precedent is not a mere verbal tool, but a generalisation which yields patent sense as well as order’. [48] Policy, comes in for explicit examination and the Grand Style is also categorised by resort to what Llewellyn calls “situation sense”. [49] The Formal Style is not so concerned with social facts. [50] Its underlying notion is that the rules of law decide the cases and policy is for the legislature not for the Courts. [51] This approach is authoritarian, formal and logical. [52]
In the early nineteenth century, the Grand Style was employed, although, from the middle of the nineteenth century Llewellyn detected a shift towards the Formal Style. [53] However, ‘by the middle of the twentieth century evidence shows a shift back to the Grand Style, a development which Llewellyn applauded by remarking ‘as 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’. [54]
III Critics of Legal Realism
Critics have branded legal realists as “anti-democratic” and “totalitarian”. [55] 56Their core claim being, according to author Brian Leiter, that judges respond primarily to the stimulus of facts – decisions are reached on the basis of a judicial consideration of what seems fair on the facts of the case, rather than on the basis of the applicable legal rule. [57]
Further, ‘Frank has been characterized as the prime representative of the radical tendency in American legal realism – the realist who turned his back on legal rules and declared them to be well nigh valueless’. [58] ‘This characterization became official, as it were, with the publication of Professor Hart’s [59] (“Hart”) The Concept of Law in 1961′. [60]
In distinguishing formalism and realist rule-scepticism, Hart criticizes the rule-sceptics for focussing only on the function of rules in judicial decisions and ignoring those secondary rules which confer judicial and legislative power. [61] Hart found Frank’s work to be illustrative of the sceptical tradition in American legal realism, [62] although Frank himself distinguished scepticism as to rules and scepticism as to facts, declaring himself to be a fact-sceptic. [63]
Llewellyn’s work has also attracted criticism from a number of standpoints. [64] From insisting on the universality of his “law jobs”, Alan Hunt argues that he [65] ‘stumbles into a major theoretical deficiency of functionalism of imposing on disparate phenomena, from different societies and different historical periods, an a priori unity’. [66] Further, William Twining (“Twining”) concedes that the Grand Style/Formal Style dichotomy has its drawbacks for ‘it may be dangerous and misleading to pidgeon-hole judges or courts into styles as it is to lump jurists into schools’. [67] 68
IV Support for Legal Realism
‘Holmes was concerned with promoting a new and more experimental and constructive attitude to social life and thought, but avoided making any specific proposals as a programme to be realised’. [69] Author, John Dewey praised Holmes on this very ground, because he had ‘no social panaceas to dole out, no fixed social programme, no code of fixed ends to be realised’. [70]
‘However, in Twining’s view ‘the main achievement of the realist movement was to concretise sociological jurisprudence…’. [71] The relationship between the realist movement and sociological jurisprudence is a strong one. [72] It’s connections with psychology, anthropology, economics and sociology are clear. [73]
Further, author Brian Leiter (“Leiter”) sought to remedy many of the myths and misconceptions surrounding American realism. [74] Leiter challenges the view that realism is a [75] ‘jurisprudential joke, a tissue of philosophical confusion’. [76] Leiter maintains ‘that it is time for legal philosophers to stop treating realism as a discredited historical antique, and start looking at the movement with the sympathetic eye it deserves’. [77]
Leiter believes that Hart’s sweeping dismissal of rule scepticism as ‘the claim that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and predictions of them’, [78] is an unfair misrepresentation of its members’ contributions to legal theory. [79] Thus, by demonstrating the limitations of a doctrinal account of law without a proper empirical investigation of the manner in which legal doctrine functions in society, the American realists unquestionably paved the way to the sociological approach to the law. [80]
V Assessment of the validity of Legal Realism
American Legal Realism in most of its manifestation, albeit that it was sceptical, can be described as fairly mainstream, it was not radical or subversive, it simply asked one to examine the law – a practical phenomenon, rather than as an idealised natural law or legal positivist edifice. It is an antidote to the declaratory theory of law that asserts that law is determinate and certain and based on legal principles and the doctrine of precedent.
Although, one may regard realism as “shallow” today, to assess the validity of legal realism, one must judge the pragmatic movement by its fruits, such as the impact it has had on legal education, the judicial process, legal anthropology, legal history, and legal sociology. In many respects sociological jurisprudence is an outgrowth of legal realism. Sociological jurisprudence developed from the same impulse to study the way the law works in an empirical or scientific experimental method.
Further, realism indirectly engendered two movements – Jurimetrics [81] and Behavouralism. ‘These movements have taken over from where legal realism left off, for whilst the realists had some inspired ideas, developed a number of theoretical models, and urged us to exploit the social and technological science, these newer movements are firmly established within the mainstream of the social sciences and use techniques associated with them freely and to valuable effect’. [82]
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