Legal Realism Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Legal realism, as an approach to politics and law, developed in the early twentieth century. It arose in response to the mechanistic view that the law was objective and unchanging, not influenced by external events, and was distinct and separate from politics. This mechanistic view of the law was known as formalism. The formalistic view of the law required that judges apply the law, objectively, without reference to political ideology or policy considerations.

During the 1920s, a group of legal philosophers and judges developed what is known as legal realism. These people included several famous judges such as Benjamin Cardozo, Roscoe Pound, and Oliver Wendell Holmes. Eminent legal philosophers Karl Llewellyn and Jerome Frank were intimately involved in the movement. The formal recognition of the movement has been thought to be a discussion in journal articles and correspondence between Llewellyn and Pound.

From the 1920s to the 1940s, legal realism developed into a force to be reckoned with, but there has been no unified theory concerning it. There were several aspects to legal realism, although not all of the purported legal realists agree on what constituted it. Indeed, what appeared to bind the legal realists together was more of a rejection of the formalistic view of the law in the search for something better that would address the problems of formalism.

The first basic aspect of legal realism was a rejection of the absolute nature of legal rules. Though legal realists, as a practical matter, would recognize that statutory laws exist and have at least some influence on the application of the law, the statutes, themselves, did not absolutely determine the outcome of any particular case. Indeed, any statute simply could not account for all of the possibilities concerning the prohibited conduct. Essentially, the statutory law was considered to be indeterminate. Many other factors could enter into any judicial decision. These factors could and did include social, economic, and political considerations.

The second aspect of legal realism was the recognition of judicial power. Judges had extraordinary power in the exercise of judicial discretion. Judges were the final authority in the application and interpretation of law. As such, they could and did (and, based on their office and duty, were required to) make decisions to, if for no other reason, address those circumstances that the statutory law did not address.

The third basic aspect was that the law was an instrument to serve social ends. In other words, both policy and ideology could be implemented through the law. Social ends were within the power of the judges. Progressive political agendas were within the power of the judges. The purpose was to mesh both policy and law for the benefit of society.

The fourth basic aspect was that the law was a profession that should be improved through legal education and making the law and the outcomes of cases more predictable and certain. The application of the law was considered to be a social scientific endeavor. Though judges had the authority to bring other factors into the decision-making process, this did not mean that such decisions should be arbitrary and capricious. The law was the guide and not an inflexible mandate.

The final basic aspect was that the law was a result of competing social, political, and individual interests. Thus, the law was malleable and the best agency to balance these interests was the judges. But this did not mean that the legislatures were without purpose.

In contemporary times, the principle of legal realism has been subject to significant criticism in both the legal and political arenas. This is especially true concerning the power of judges to inject their own political views into the decision-making process, which has been, correctly or not, labeled as judicial activism. Another significant contemporary criticism of legal realism is its use of the courts as an agent for social change. However, this does not change the fact that the school of thought of legal realism had a profound impact on the practice of politics and its relationship to the judiciary as an agent of political and social change. Legal realism influenced the development of contemporary approaches in political science, including law and society, empirical studies in judicial behavior (e.g., the attitudinal model), and critical legal studies.

Bibliography:

Cardozo, Benjamin. The Nature of the Judicial Process. 1921.
Reprint, New Haven, Conn.:Yale University Press, 1948.
Frank, Jerome. Law and the Modern Mind. 1930. Reprint, New Brunswick, N.J.:Transaction, 2009.
Green, Michael Steven. “Legal Realism as Theory of Law.” William and Mary Law Review 46, no. 6 (2005): 1915–2000.
Llewellyn, Karl. “A Realistic Jurisprudence—The Next Step.” Columbia Law Review 30 (April 1930): 431–465.
Jurisprudence: Realism in Theory and Practice. Chicago: University of Chicago Press, 1962.
Pound, Roscoe. “The Call for a Realist Jurisprudence.” Harvard Law Review 44 (March 1931): 697–711.
Tamanaha, Brian Z. “Understanding Legal Realism.” Texas Law Review 87, no. 4 (2009): 731–786.
Twining,William. Karl Llewellyn and the Realist Movement. London: Weidenfeld and Nicolson, 1973.

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