LEGAL REALISM 1 Legal Realism Bautista, Arianne Dayrit, Alma Changcoco, Jim Carlo Manabat, Maria Elena Cecilia Pineda, Jan Rez Angeles University Foundation It viewed the role of judges to be simply determining which rules applied to the facts of the case. Mechanical jurisprudence viewed law as a complex system of set and precise rules created by the legislature. It was an attempt to take a cold-eyed look at how the legal system actually operates. It was also a reaction to a formalistic account of law and mechanical jurisprudence. Legal Realists saw this as a distorted picture of law and of the role of the courts in a legal system.LEGAL REALISM 2 Abstract Legal Realism was a distinctly American approach to the philosophy of law. . S. 1993) . Yet. five strands of thought predominate in the movement. al. published a series of articles debating the nuances of the movement. it continues to influence how judges. "The life of the law has not been logic. and moral predilections of state and federal judges. Legal realism is not a unified collection of thought. et. like Pound and Llewellyn. (Fisher. were sharply critical of each other and presented irreconcilable theories. "it has been experience. social." Holmes wrote. lawyers. an attack on the orthodox view of law. Many realists. the persuasion and characteristics of individual judges. Although the movement declined after World War II. published The Common Law. and laypersons think about the law. Jurisprudence under 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. a professor from Harvard Law School." Legal realism flourished during the 1920s and 1930s when Roscoe Pound.LEGAL REALISM 3 Introduction Legal Realism is the school of legal philosophy that challenges the orthodox view of U. The U. a professor from Yale Law School. The strands focus on power and economics in society. society's welfare. legal realism movement began in 1881 when Oliver Wendell Holmes Jr.S. and a synthesis of legal philosophies. 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. a practical approach to a durable result. and Karl Llewellyn. an inescapably political. however. If . while other realists believe that legal realism is to see law for what it is. it follows that judges lack legal authority to reach conflicting outcome. Some realists believe that legal realism set straight the distortion caused by biased juristic methods. Realists believed that formalism understates judicial lawmaking abilities insofar as it represents legal outcomes as entailed syllogistically by applicable rules and facts. ridicules the notion that legal cases are best understood as the application of rules. and hence to work for a sounder system of political values. For if legal outcomes are logically implied by propositions that bind judges. and hence to frame legal concepts within purer. a contradiction between the realists. it has been experience. There was. more neutral system. the realists operated along three lines of attack: they directed their criticism against systematic concepts and the idea of “system” against dogmatic concepts and legal conceptualism. Holmes. statutes. or are there instead only different. The realists argued that the elementary deduction from a rule to a case was mistaken. then the interesting legal questions are solved and the remainder is just a question of formal logic.” With this thought in mind.LEGAL REALISM 4 The realists’ battle cry was Holmes’s framed remark that “the life of the law has not been logic. 2010) Some of the fundamental questions at the heart of legal realism were: Is there really a right or best answer to legal questions. and other legal materials sufficient to determine the correct legal outcome in a given case? Or is it instead merely a matter of particular judges’ political opinions? The formalists assumed that as soon as you have identified a rule of the law. subjective opinions? Are past precedents. for instance. (Faralli. That is why judges disagree and rely so heavily on precedent and legal argument. In reality. it is between the rule and the individual case that all the interesting and hard problems are to be found. and against legal argumentation. then why do so many cases get litigated and why is it that.” (Holmes. the law is not a coherent. etc. The law is nothing more than past decisions plus predictions of what future judges will do. rather than to legal rules and reasons. Holmes. judges respond primarily to the stimulus of the facts of the case. the laws on the books (statutes. Bad men. as summed up in his maxin: “The life of the law has not been logic. 1881) Legal realism was popular among lawyers advising clients.LEGAL REALISM 5 this were so. was an American jurist who serves as an Associate Justice of the Supreme Court of the United States from 1902 to 1932. Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.” According to Holmes. care . giving realistic advice is predicting what courts will ultimately decide. cases. helped move American legal thinking towards legal realism. The available class of legal reasons did not justify a unique decision and the legal reasons did not suffice to explain why judges decided as they did. the outcome could really go either way. Holmes argued in his speech "The Path of the Law". Thus. the judicial lawmaking should be that the judges make law. Realists claimed that in deciding cases. something one would not expect for genuinely rule-governed behavior? The Realists also believed in the indeterminacy of law. complete system of rules and principles. how do practicing judges actually decide cases? In legal realism.) do not determine the results of legal disputes. during the American Civil War. The law really exists in the courts and adjudication. it has been experience. The test of law is the decision of the judges. The realists were not so much interested in conceptual analysis of the law as they were interested in how it was useful to think about the law for attorneys who must advise clients what to do. nor can it be understood in terms of orders of a sovereign power. They made emphasis on empirical study of the law and asked the question. Holmes focused on the perspective of the “bad man. in most cases that do get litigated. In Holmes's mind. therefore. For both the pragmatists and social Darwinists. instead they care simply about staying out of jail and avoiding the payment of damages. Morality has nothing to do with law. Holmes’s understanding of legal realism shows his relationship to the natural law and natural rights traditions. or liberal constitutionalism? The latter would seem to require an understanding that only promulgated and known laws whose meaning is stable over time can bind citizens. it was most useful to define "the law" as a prediction of what will bring punishment or other consequences from a court. For Holmes. life and thought are directed to continuous change and adaptation to the environment. it amounts to little more than a state of mind. and courts adjudicate with an eye to law’s practical effects. but its adaptive success (“survival of the fittest”).” he oftentimes saw the need for courts to provide the creative responses dictated by the times. Holmes thus raises squarely a fundamental question: if the Constitution does not dictate anything that is not time-bound. yet Holmesian legal realism denies the very possibility of such laws. and exponent of. Although Holmes is often depicted as an advocate of “judicial restraint. After the Civil War. instead it comes down to weighing questions of social advantage according to the exigencies of the age. pragmatism and social Darwinism came to dominate the American intellectual landscape. law and society are always in flux. Holmes was heir to. which is the engine of progress. intellectual doctrines that predated his tenure on the Court. There are no objective standards for determining right and wrong and therefore no simply just answers to legal questions. and which were offshoots of the new “scientific” attitudes toward politics and human affairs. . is there any ground for faith in the Constitution. Legal adjudication has no natural or even constitutional basis. sweeping away all notions of natural law and natural rights and a constitutionalism dedicated to their defense.LEGAL REALISM 6 little for ethics or lofty conceptions of natural law. The test of the worthiness of any proposition is not its truth in and of itself (the standard of natural law theory). The actual grounds of decision.” This is far from Plato’s notion in the Minos that law seeks to be a discovery of what is. In what terms are we to understand what law’s instrumentality—the courts—will actually do? Holmes claims that law reflects not logic but experience. the major premise of sound legal analysis being found in the law itself. according to Holmes. the prediction of the incidence of public force through the instrumentality of the courts. Holmes maintains that one of the problems of the common law prior to legal realism was that it . Such analysis implies judges can decide particular cases on the basis of right reason. judges look to history and incorporate science—especially economic science—into their jurisprudence.. Holmes’s social Darwinism is exhibited in his view that judges express the wishes of their class at a particular historical point. Law cannot be understood to be syllogistic—i. There can thus be no logical necessity or reasoning about law. then. the minor premise in the facts of the case. and find reasons for them ex post facto. become the oracles of the new legalism and indeed new constitutionalism. are based on the “felt necessities” of the time. or to the American Founders’ written constitutionalism.LEGAL REALISM 7 As Holmes dismisses natural law. Rather. “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. it is beyond lawyers’ ability—as it is beyond the ability of anyone—to point to the constitutional truth of things. and hence it becomes a business to find out when this danger is to be feared. Well-trained lawyers.e. which is accessible to unaided human reason. The content and growth of law are determined as much by organic “forces” as by men. albeit this view is in clear tension with his view that judges must decide cases fairly. apart from calculations dictated by answers to questions of socioeconomic advantage. Under his definition of “truth” as that which is helpful or useful here and now. To know legal dogma is to be able to make predictions. The object of our study. judges decide questions first. or Aquinas’s that proper human law must not conflict with the natural law. is prediction. his jurisprudence as the science of positive law becomes merely a predictive tool along the lines of modern science. according to Holmes. much less a natural law that is not time-bound. or grim acceptance of.. which will happen when the market assesses its needs. not the constitutional or regime beliefs that have existed up to the present. United States—decided just months after Schenck—a majority of the Court upheld the convictions of anti-government. According to Holmes. or because of some opinion as to policy…. not reliant enough on utilitarian social and economic theory. Prior to the articulation of this doctrine.Such matters really are battle grounds where the means do not exist for determinations that shall be good for all time. In Abrams vs.e. . the progress of History—is brought into relief by examining its insistence on the notion that courts must interpret and balance rights.LEGAL REALISM 8 had not been. Implicit in this is a genuine Darwinian confidence that society need not fear that which triumphs. In Schenck vs. . Holmes stated the famous “clear and present danger” test as a pragmatic doctrine that avoided inquiry into the content (that is. .” The core of Holmes’s legal realism—its pragmatism along with a confidence in. anti-war radicals who advocated violence. United States. theoretical enough. and where the decision can do no more than embody the preference of a given body in a given time and place. . the content of speech was considered of vital constitutional import. The beliefs that will triumph in the long run are critical. as opposed to insight into eternal questions of justice. No concrete proposition is self-evident. the judge gives his conclusions “because of some belief as to the practice of the community or of a class. The importance of this weighted judicial balancing is nowhere more evident than in Holmes’s free speech jurisprudence. In fact. in a certain sense. the nature) of speech and concentrated only on its likely effects. free speech fosters free trade in ideas. i. Holmes dissented on the basis of his clear and present danger test. and the test of “truth” is its ability to get accepted in the marketplace of ideas. Our law is open to reconsideration upon a slight change in the habit of the public mind. Holmes’s thought can be said to reduce to a new “natural” law—a Darwinian process of triumph over lesser forms. which could favor repressive law as well as progressive law. rather than in his individual judgments. as well as legislators. . and reliance on either is purely an instrumental—or experimental—question. For Holmes. In Gitlow v. New York. I think the word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion . Holmes’s jurisprudence suggests that the Supreme Court is to intervene where the legislative branch limits free speech. Judges themselves. Whatever prevails is right. rights are willed by the dominant forces of an age and community. and therefore all political developments are good until they are no longer in ascendancy. Holmes makes an arresting claim: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community. Holmes dissented (on the grounds of constitutional neutrality) from a majority that held that state economic regulations limiting work hours were unconstitutional. New York. the only meaning of free speech is that they should be given their chance and have their way. . albeit of a foreboding. .” But this modest conception of the judicial function in a democracy was not Holmes’s final word. survival or progress might require activism or restraint. . . and every regime is worthy until it is overthrown or crumbles. In Lochner v.” But if the Constitution is itself neutral or indifferent on this question. but not when it limits economic freedom. what is the basis for a constitutional ruling in favor of a First Amendment claim? Again. must to some large degree reflect dominant forces according to the state’s position in History—understood not as a mere record of events. He famously claimed “I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law . or progressivism as legal theory. .LEGAL REALISM 9 For Holmes. Holmes was often willing to show great deference to legislative judgments as the sovereign expressions of popular will. but as an inexorable process that dictates its own moral categories. Holmes was therefore a progressive in this Historical sense. we are led to Darwinian experimentalism. . fatalistic kind. I mean that I cannot help believing it. and. when I was young.” Even more radically. possessing as it did considerable faith in the ability of science and purportedly scientific administration to solve social problems. and contending. Racial improvement through eugenics was one outgrowth of early twentieth century progressivism. .LEGAL REALISM 10 Holmes notably claims. “When I say that a thing is true. I therefore define the truth as the system of my limitations . . judicial adversity toward “weaker” opinions or entities that appear not to support the strength and growth of the social organism. Holmes thereby lays the foundation for a judicial seeking-out and support of such dominant opinions. . Certainly we may expect that the received opinion about the .” Holmes seemed to accept the eugenic arguments to the point of . and I think that the statement was correct in so far as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. that “three generations of imbeciles are enough. I do not venture to assume that my inabilities in the way of thought are inabilities of the universe. In one of his most notorious judgments. Holmes’s efforts to debunk the philosopher’s quest for “absolute” truth or the jurist’s for “natural law” lead him to suggest that the morality of even the greatest human struggles depends entirely on the outcome: I used to say. [First World] war will depend a good deal upon which side wins (I hope with all my soul it will be mine). Bell that upheld a Virginia compulsory sterilization law. Holmes wrote the eight-to-one majority opinion in Buck v. . . Decrying those who “sap the strength” of society. that truth was the majority vote of that nation that could lick all others. . But as there are many things that I cannot help doing that the universe can. This account of natural law—or. Holmes upheld the law on the grounds that those targeted by the law were treated with scrupulous procedural fairness. concomitantly. in reference to the affected litigant and her family. . more properly—an inexorable law of historical unfolding—paints it as nothing more than a dominant opinion. . but he seeks to . he argued that if “the public welfare may call upon the best citizens for their lives.LEGAL REALISM 11 endorsing them on grounds of public policy. otherwise they would be guilt of usurpation of power. They are not to make law. The law. the flux and flexibility of the law. not of rules. Referring to the Civil War. In his rejection of natural law and natural rights. 2011) Jerome Frank Jerome Frank was an American legal philosopher and author who played a leading role in the legal realism movement. He believed that the law consists of decisions. (Duxbury. 1991) He explained that the conventional theory holds that “rule plus facts = decision”. (Frank. Holmes reasoned by analogy. He compared the hardships of sterilization with the sacrifices of soldiers in battle. The conventional view suggests that the law is a complete body of rules (immemorial. Judges’ function is purely passive. what “the law” means for an average client when he or she consults a lawyer.” He rejected the conventional view. Holmes laid the groundwork for the contemporary era of jurisprudence. (Watson. where judges came to look to their visions of the future more than to documents and doctrines of the past. He concedes that a complete definition of “the law” would be impossible. Legislatures are expressly empowered to change the law but the judges are not to make or change the law but to apply it. and thus to take on a new and far more active role in the constitutional order. 1963) Frank seeks to explain. unchangeable). and with it a liberal constitutionalism of limited state power. in a rough sense. while the realist holds that “the stimuli affecting the judge plus the personality of the judge = decision. pre-exists the judicial decisions.” surely those who “sap the strength of the state” could be called upon for a lesser sacrifice. ready-made. speaking law. will the agreement be binding?”. “probable law”. usually. court law may roughly be defined as specific past or future judicial decisions which are enforced or complied with.LEGAL REALISM 12 get a rough sense of what it actually means in the practice of the law. a client consults a lawyer to ascertain the latter type. which make legal rules . Legal rules didn’t have the value for judges in later cases that precedent did. To Frank. He notes that: “From that point of view.” Frank notes that lawyers’ answers to these questions are actually “prophecies or predictions” of how judges will actually decide. a client could ask: “if Jones sells me his Chicago shoe business and agrees not to compete for ten years. being a guess to what a specific future decision in the particular situation would be Frank notes that. with the latter being what a client is mainly concerned with when consulting a lawyer. is not how lawyers customarily define the law. The “court law” is actually law consisted of specific past decisions as well as probable law of guesses of specific future decisions. Frank concludes by noting that his definition of court law from the practical point of view of clients when consulting lawyers. asking “not what courts have actually decided in the past but what the courts will probably decide in the future”. Stare decisis is when existing legal rules are pitched as a level of generality that bore no relation to the fact-specific ways in which courts actually decide cases. such as a specific prior decision ● Probable law.” Frank also challenged the concept of stare decisis. the law can be defined as either of the following: ● Actual law as to the particular situation. and a lawyer could reply: “the agreement is not legally binding. For instance. as comprising actual law of past decisions and probable law of prophesizing future decisions. 2005) . V. Scandinavian Legal Realism The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. the Swedish lawyers A. The naturalistic approach should be taken seriously since it leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action. because the future decision maker can always find some aspect of the later case that can serve as a ground for differentiating or distinguishing it from the prior one. This approach is followed by his pupils.LEGAL REALISM 13 for fact-specific. Hägerström's philosophy advances a naturalistic approach that conceives the positive law as a system of rules in terms of behavioral regularities among human beings and legal knowledge as an empirical inquiry into the causal relations between legal rules and human behavior. Hägerström's philosophical theory is committed to the metaphysical view that the world in time and space consists of causal regularities between things and events devoid of any values that is related to his epistemological view that what there is can be known by experience. whereas Ross appeals to logical positivism. (Bjarup. The realists repeatedly emphasized the indeterminacy or looseness of stare decisis by pointing out that a particular ruling in one case never binds a decision maker in any future case. Lundstedt and Karl Olivecrona. Morton. Brown and Company. Frank. The Philosophy of Scandinavian Legal Realism. Boston: Little. 1. Cracovia: Jagellonian University Press. Legal Philosophy and Challenge of Biosciences. Jes (2005).. Horwitz. Holmes.LEGAL REALISM 14 References Bjarup. New York: Anchor Books. New York: Oxford University Press. Faralli. Oliver Wendell Holmes. Neil (1991). Witherspoon Institute Duxbury. Law and the Modern Mind. Watson (2011). Jerome Frank and the Legacy of Legal Realism. The Common Law. and the Natural Law. Jr. S. Carla (2010). Ratio Juris. Fisher. Bradley C. . and Thomas Reed (1993). Jerome (1963). American Legal Realism. III. (1881). Oliver Wendell Jr. William W.