Key Tenets of American Realism

Legal Realism is a school of jurisprudence that emerged primarily in the United States and Scandinavia in the early 20th century. It is a pragmatic and empirical approach that focuses on law as it is actually applied and enforced, rather than on formal legal rules as found in statutes or precedents. Realists are sceptical of traditional legal theories that present law as a complete, logical, and predictable system.

American Realism:

American Realism was largely a reaction against the formalistic and conceptual approach to law prevalent in American legal education and practice at the time, which focused on logical deduction from general principles (Langdell's case method). Realists argued that law is not found in books but in the actual decisions and actions of legal officials, particularly judges.

Law is what the judges do

A famous and often quoted dictum of American Realism is: "Law is what the judges eat for breakfast!" (attributed to Judge Jerome Frank, though not literally). The core idea is that law is not the rules written in statutes or precedent books, but the actual decisions made by judges in concrete cases.

Realists argued that written rules are often indeterminate, ambiguous, or applied differently in practice. Therefore, to understand what the law is, one must look at how judges interpret and apply these rules in light of various factors, including their personal biases, social background, and policy considerations.

Focus on judicial behaviour and predictions

American Realists focused on the behaviour of judges and other legal officials. They sought to understand the various factors that influence judicial decisions, which they believed went beyond mere legal rules.

From the perspective of an ordinary person or a lawyer, law is essentially a prediction of what the courts will do in a given situation. Knowing the written rules is not enough; one must be able to predict how a judge will interpret and apply those rules, taking into account other influencing factors.

This approach draws on insights from psychology, sociology, and other empirical sciences to understand judicial decision-making.

Rejection of formal legal rules

American Realists were sceptical of the idea that law is a complete and coherent system of formal rules that can provide a definite answer to every legal problem. They argued that in many cases, particularly 'hard cases', judges have considerable discretion and their decisions are influenced by factors outside the formal legal framework.

They did not necessarily deny the existence of rules, but they argued that these rules are often indeterminate and do not fully explain or predict judicial outcomes. They were interested in the 'law in action' rather than the 'law in books'.

Key figures in American Realism include Oliver Wendell Holmes Jr., Jerome Frank, and Karl Llewellyn.

Oliver Wendell Holmes Jr.: "The Path of the Law"

Justice Oliver Wendell Holmes Jr. (1841-1935), a judge of the US Supreme Court, is considered a precursor and inspiration for American Realism. His lecture, "The Path of the Law" (1897), contains ideas that resonate with the realist approach.

Oliver Wendell Holmes Jr.: "The Path of the Law" (1897)

In this lecture, Holmes urged lawyers and jurists to look at law from the perspective of a 'bad man'. A bad man cares nothing for ethical or moral rules, but only for the material consequences that the law is likely to impose upon him. Therefore, to understand law, one should predict what consequences the courts will impose in a particular case.

Law as prediction of what courts will do

Holmes famously stated: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."

• This defined law not as a set of abstract rules or moral ideals, but as a prediction of judicial outcomes.

• He argued that the study of law should be empirical, focusing on observing judicial behaviour and identifying the factors that influence it.

• He also distinguished law from morality, arguing that the confusion between legal and moral concepts had hindered the clear understanding of law.

Holmes's emphasis on predicting judicial behaviour, his pragmatic approach, and his scepticism about abstract legal concepts significantly influenced the development of American Realism.

Jerome Frank: "Law and the Modern Mind"

Jerome Frank (1889-1957), a legal philosopher and later a judge, was a prominent and radical figure in American Realism. His work brought psychological insights into the study of law.

Jerome Frank: Law and the Modern Mind (1930)

Frank's work is characterised by a strong scepticism about the certainty and predictability of law. He attributed this uncertainty not just to the indeterminacy of rules but also to the difficulties in establishing the facts of a case.

Distinction between "Fact-Skepticism" and "Rule-Skepticism"

Frank distinguished between two forms of scepticism among realists:

• Rule-Skepticism: Scepticism about the ability of formal legal rules to provide definite answers in all cases (shared by most realists). They focus on the indeterminacy of rules and the discretion of judges in applying them.

• Fact-Skepticism: A more radical scepticism about the reliability of the facts found by trial courts. Frank argued that the facts presented in court are filtered through witnesses' perceptions, biases, and the trial judge/jury's own biases and interpretations. Therefore, even if the law (rules) were certain, the uncertainty in establishing the 'true' facts makes the outcome of a case unpredictable.

Frank believed that the focus should be on what happens at the trial court level, where facts are determined, as much as on the appellate court level, where legal rules are interpreted.

Psychological approach to law

Frank incorporated psychological insights into his analysis of law. He argued that judicial decisions are influenced by various factors beyond legal rules, including the judge's personality, temperament, mood, and subconscious biases. He famously suggested that judicial decisions could be influenced by mundane factors like what the judge had for breakfast.

He also explored the psychological reasons why people crave legal certainty (often linked to a need for a 'father figure' in law), which he believed was a myth given the inherent uncertainty.

Frank's radical scepticism and psychological approach distinguished him within the realist movement.

Karl Llewellyn: "The Bramble Bush"

Karl Llewellyn (1893-1962) was another prominent figure in American Realism, known for his focus on the actual practices of legal institutions and the factors that influence judicial decisions.

Karl Llewellyn: The Bramble Bush (1930)

Llewellyn provided a less radical and more systematic account of realism than Frank. He also focused on the 'law in action'.

Law as a continuous adjustment

Llewellyn viewed law as a dynamic process of continuous adjustment to changing social conditions. He saw it as an institution that performs certain tasks within society, primarily the resolution of disputes and the regulation of behaviour.

Key features of judicial decisions

Llewellyn identified factors other than formal rules that influence judicial decisions. He analysed the techniques of judicial reasoning and argued that judges often reach decisions based on their sense of justice or policy considerations and then use existing legal rules to rationalise their conclusions (the 'rule-following' rhetoric).

He identified various 'situation types' and 'ways of handling precedent' that judges use, suggesting that there are predictable patterns in judicial behaviour, even if not strictly determined by formal rules.

Llewellyn also played a key role in drafting the Uniform Commercial Code (UCC), demonstrating a realist engagement with practical law reform.

Criticism of American Realism

American Realism, despite its impact, has faced several criticisms:

Criticism:

• Overemphasis on Judges: Realists focused primarily on judicial decisions, neglecting the vast body of law that is applied and obeyed without ever reaching the courts (e.g., laws governing daily transactions, administrative rules). Law exists beyond the courtroom.

• Predictability vs. Normativity: By defining law as mere prediction of judicial outcomes, realists struggled to account for the normative aspect of law – the idea that law creates obligations and provides standards for behaviour that judges themselves are bound by. Judges often feel constrained by legal rules, not just predicting their own behaviour.

• Basis of Judicial Decisions: While pointing out the factors influencing judges, realists did not always provide a clear criterion for what judges ought to do, potentially leading to judicial arbitrariness. If rules don't constrain, what does?

• Scepticism is Overstated: Critics argue that formal legal rules are far more determinate and influential in practice than realists acknowledge. Most legal cases are settled or decided based on clear rules without controversy.

• Does not define Law: Some argue that realism does not provide a definition of law itself, but rather a description of how law is applied in practice.

Despite these criticisms, American Realism's contribution was significant in highlighting the human and social factors in law, emphasizing the 'law in action', and encouraging empirical studies of the legal system. It exposed the limitations of formalistic approaches and had a lasting impact on legal education and practice.

Key Thinkers: Axel Hägerström, Vilhelm Lundstedt, Karl Olivecrona

Scandinavian Realism, which emerged in Sweden and Denmark, is a different stream of legal realism from its American counterpart. While sharing the emphasis on empiricism and scepticism towards abstract legal concepts, Scandinavian realists focused more on the psychological and sociological aspects of law, often engaging in philosophical critique of fundamental legal notions.

Key Thinkers:

• Axel Hägerström (1868-1939): Often considered the father of Scandinavian Realism. His philosophy was based on a critique of metaphysical concepts and aimed to apply empirical methods to understand law.

• Vilhelm Lundstedt (1882-1955): A student of Hägerström, he denied the existence of legal concepts like rights and duties, arguing they were mere words without corresponding empirical reality.

• Karl Olivecrona (1897-1980): Developed the idea of law as 'independent imperatives' that exist in society and influence behaviour through psychological suggestion, without being commands from a sovereign.

• Alf Ross (1899-1979): A Danish legal philosopher who attempted to synthesise Scandinavian realism with logical positivism, defining valid law as the rules that are effectively followed by judges and felt by them as binding.

Scandinavian realists were primarily concerned with the philosophical and methodological foundations of legal science, aiming to purify legal language and concepts from metaphysical or non-empirical notions.

Rejection of Metaphysical Concepts in Law

A central theme of Scandinavian Realism is the rejection of metaphysical concepts in law. Influenced by empirical philosophy, they argued that many fundamental legal concepts lack corresponding empirical reality and are based on fictions or superstitions.

Critique of concepts like 'right', 'duty'

Scandinavian realists were highly critical of concepts like 'right', 'duty', 'ownership', 'property', and 'validity' when understood as inherent, intangible entities or relations. They argued that these were not empirical facts but rather psychological constructs or linguistic devices used to describe social phenomena.

• Hägerström: Argued that these concepts are like magical properties or supernatural powers, lacking empirical verification.

• Lundstedt: Believed that legal concepts were merely words used to describe the effects of applying law (e.g., saying someone has a 'right' to property is just a way of describing the predictable consequences of law enforcement regarding that property). He advocated for a 'method of social welfare' in law-making, focusing on promoting societal well-being rather than upholding abstract rights.

• Olivecrona: Described legal language as having a 'pseudo-command' or 'imperative' character. Words like 'right' and 'duty' function as psychological tools to influence behaviour, not as descriptions of metaphysical entities.

They aimed to strip away these metaphysical layers and describe law purely in terms of observable social facts and psychological reactions.

Law as Psychological and Sociological Phenomena

For Scandinavian Realists, law is essentially a matter of psychological and sociological facts. They sought to explain legal phenomena in terms of observable behaviour and mental states.

Psychological Aspect:

• Law operates through its psychological effect on individuals. Rules and concepts like 'right' and 'duty' influence behaviour because they are accepted or felt as binding, often through conditioning and suggestion (Olivecrona's 'independent imperatives').

• The feeling of being bound by law is a psychological reality, even if the abstract concepts used to describe it (like 'validity' in a metaphysical sense) are not.

Sociological Aspect:

• Law is a social phenomenon, existing in the practices and institutions of society.

• Valid law, for Ross, is the set of norms that are effectively applied by judges, who feel themselves bound by these norms. This effectiveness in judicial behaviour is an observable social fact.

Scandinavian realism thus sought to provide a scientific, empirical account of law by focusing on observable behaviour (social) and the internal psychological feelings of being bound by rules, without resorting to abstract or metaphysical concepts.

Criticism of Scandinavian Realism

Scandinavian Realism, despite its empirical and philosophical rigour, has also faced criticism:

Criticism:

• Reductionism: Critics argue that reducing complex legal concepts like rights and duties solely to psychological or sociological facts oversimplifies the normative and conceptual richness of law. Legal concepts have a meaning and function beyond mere descriptions of behaviour or psychological states.

• Difficulty in Eliminating Concepts: Completely eliminating concepts like 'right' and 'duty' from legal language is practically impossible and may make legal discourse unintelligible.

• Normativity Questioned: By focusing solely on empirical facts, critics argue that Scandinavian realism struggles to account for the 'ought' or binding nature of law. If law is just observable behaviour or psychological states, why ought one to obey it?

• Ethical Void?: By strictly separating law from traditional moral or value judgments, some critics argue that Scandinavian realism leaves an ethical void and offers no basis for evaluating or criticising laws on moral grounds (though some realists engaged in social welfare critiques).

Scandinavian Realism is less well-known than American Realism but represents a significant philosophical challenge to traditional legal concepts. Its strength lies in its rigorous critique of metaphysical notions and its attempt to ground legal science in empirical reality, influencing subsequent positivist thought, particularly Hart's emphasis on the 'internal aspect' of rules.