Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world.[ citation needed ]
Legal realists believe that legal science should only investigate law with the value-free methods of natural sciences, rather than through philosophical inquiries into the nature and meaning of the law that are separate and distinct from the law as it is actually practiced. Indeed, legal realism asserts that the law cannot be separated from its application, nor can it be understood outside of its application. As such, legal realism emphasizes law as it actually exists, rather than the law as it ought to be. Locating the meaning of law in areas like legal opinions issued by judges and their deference or dismissal of the past precedent and the doctrine of stare decisis , it stresses the importance of understanding the factors involved in judicial decision making.
Legal realism is associated with American jurisprudence during the 1920s and 1930s, particularly amongst federal judgesand lawyers within the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant and Warren Seavey, many of whom were associated with Yale Law School. As Keith Bybee argues, "legal realism exposed the role played by politics in judicial decision-making and, in doing so, called into question conventional efforts to anchor judicial power on a fixed, impartial foundation." Contemporary legal scholars working within the Law and Society tradition have expanded upon the foundations set by legal realism to postulate what has been referred to as new legal realism.
As a form of jurisprudence, legal realism is defined by its focus on the law as it actually exists in practice, rather than how it exists on the books. To this end, it was primarily concerned with the actions of judges and the factors that influenced processes of judicial decision making. As Karl Llewellyn argues, “[b]ehind decisions stand judges; judges are men; as men they have human backgrounds.”The law, therefore, did not exist in a metaphysical realm of fundamental rules or principles, but was inseparable from human action and the power of judges to determine the law. In order to understand the decisions and actions of legal actors, legal realists turned to the ideas of the social sciences in order to understand the human behavior and relationships that culminated in a given legal outcome.
American legal realists believe that there is more to adjudication than the "mechanical" application of known legal principles to uncontroversial fact-finding in line with the arguments of legal formalism. Some realists believe that one can never be sure that the facts and law identified in the judge's reasons were the actual reasons for the judgment, whereas other realists accept that a judge's reasons can often be relied upon, but not all of the time. Realists believe that the legal principles that legal formalism treats as uncontroversial actually hide contentious political and moral choices.
Due to their value-free approach, legal realists are opposed to natural law traditions. Legal realists contend that these traditions are historical and/or social phenomena and that they should be explained by a variety of psychological and sociological hypotheses, conceiving of legal phenomena as determined by human behavior that should be investigated empirically, rather than according to theoretical assumptions about the law. As a result, legal realism stands in opposition to most versions of legal positivism.
Realism was treated as a conceptual claim for much of the late 20th century due to H. L. A. Hart's misunderstanding of the theory.Hart was an analytical legal philosopher who was interested in conceptual analysis of concepts such as the concept of 'law'. This entailed identifying the necessary and sufficient conditions for the use of the concept 'law'. When realists such as Oliver Wendell Holmes pointed out that individuals embroiled in the legal system generally wanted to know what was going to happen, Hart assumed that they were offering the necessary and sufficient conditions for the use of the concept 'law'. Nowadays, legal theorists tend to recognise that the realists and the conceptual lawyers were interested in different questions. Realists are interested in methods of predicting judges with more accuracy, whereas conceptual lawyers are interested in the correct use of legal concepts.
Legal realism was primarily a reaction to the legal formalism of the late 19th century and early 20th century, and was the dominant approach for much of the early 20th century. It succeeded in its negative aspiration of casting doubt upon formalist assumptions that judges always did what they said, so that it is often said that 'we are all realists now.' However, realism failed in its positive aspiration of discovering a better way of predicting how judges would behave than relying on the reasons given by judges.
A theory of law and legal reasoning that arose in the early decades of the twentieth century is broadly characterized by the claim that law can be best understood by focusing on what judges actually do in deciding cases, rather than on what they say they are doing.The central target of legal realism was legal formalism: the classical view that judges don't make law, but mechanically apply it by logically deducing uniquely correct legal conclusions from a set of clear, consistent, and comprehensive legal rules. American legal realism has aptly been described as "the most important indigenous jurisprudential movement in the United States during the twentieth century".
Although the American legal realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily upon a number of prior thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to the law had been forcefully criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had held up empirical science as a model of all intelligent inquiry, and argued that law should be seen as a practical instrument for advancing human welfare. Outside the realm of law, in fields such as economics and history, there was a general "revolt against formalism," a reaction in favor of more empirical ways of doing philosophy and the human sciences.But by far the most important intellectual influence on the legal realists was the thought of the American jurist and Supreme Court Justice Oliver Wendell Holmes Jr.
Holmes is a towering figure in American legal thought for many reasons, but what the realists drew most from Holmes was his famous prediction theory of law, his utilitarian approach to legal reasoning, and his "realist" insistence that judges, in deciding cases, are not simply deducing legal conclusions with inexorable, machine-like logic, but are influenced by ideas of fairness, public policy, prejudices, and experience. In the opening paragraph of The Common Law, he wrote:
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, and 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. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
All these themes can be found in Holmes's famous 1897 essay, "The Path of the Law". There Holmes attacks formalist approaches to judicial decision-making and states a pragmatic definition of law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law".If law is prophecy, Holmes continues, we must reject the view of "text writers" who tell us that law "is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions".
Holmes next introduces his most important and influential argument, the "bad-man" theory of law: "[I]f we take the view of our friend the bad man we shall find that he does not care two straws" about either the morality or the logic of the law. For the bad man, "legal duty" signifies only "a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment".The bad man cares nothing for legal theorizing and concerns himself only with practical consequences. In the spirit of pragmatism, Holmes suggests that this is a useful way of laying bare the true meaning of legal concepts.
The utilitarian or instrumentalist flavor of "The Path of the Law" also found favor with the realists. The purpose of the law, Holmes insisted, was the deterrence of undesirable social consequences: "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage."Before the Civil War, this conception of adjudication as a form of social engineering had been widely shared by American judges, but in the late nineteenth century it had fallen out of favor. One of the aspirations of both Holmes and the realists was to revive it. For example, in his dissent in Southern Pacific Co. v. Jensen , Holmes wrote, "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign ... that can be identified," thereby arguing in favor of a pragmatic and more realistic approach to judicial interpretation of common law.
Drawing upon Holmes and other critics of legal formalism, a number of iconoclastic legal scholars launched the legal realist movement in the 1920s and 30s. Among the leading legal realists were Karl Llewellyn, Jerome Frank, Herman Oliphant, Underhill Moore, Walter Wheeler Cook, Leon Green, and Felix Cohen. Two American law schools, Yale and Columbia, were hotbeds of realist thought. Realism was a mood more than it was a cohesive movement, but it is possible to identify a number of common themes. These include:
Legal realism had its heyday from the 1920s to the 1940s. In the 1950s, legal realism was largely supplanted by the legal process movement, which viewed law as a process of "reasoned elaboration" and claimed that appeals to "legislative purpose" and other well-established legal norms could provide objectively correct answers to most legal questions. In his 1961 book The Concept of Law, British legal theorist H. L. A. Hart dealt what many scholars saw as a "decisive blow"to legal realism, by attacking the predictive theory of law that many realists had taken over from Holmes. Hart pointed out that if a law is just a prediction of what courts will do, a judge pondering the legal merits of a case before him is really asking, "How will I decide this case?" As Hart notes, this completely misses the fact that judges use legal rules to guide their decisions, not as data to predict their eventual holdings.
Many critics have claimed that the realists exaggerated the extent to which law is "riddled" with gaps, contradictions, and so forth.The fact that most legal questions have simple, clear-cut answers that no lawyer or judge would dispute is difficult to square with the realists' strong claims of pervasive legal "indeterminacy". Other critics, such as Ronald Dworkin and Lon Fuller, have faulted legal realists for their attempt sharply to separate law and morality.
Though many aspects of legal realism are now seen as exaggerated or outdated, most legal theorists would agree that the realists were successful in their central ambition: to refute "formalist" or "mechanical" notions of law and legal reasoning. It is widely accepted today that law is not, and cannot be, an exact science, and that it is important to examine what judges are actually doing in deciding cases, not merely what they say they are doing. As ongoing debates about judicial activism and judicial restraint attest, legal scholars continue to disagree about when, if ever, it is legitimate for judges to "make law", as opposed to merely "following" or "applying" existing law.But few would disagree with the realists' core claim that judges (for good or ill) are often strongly influenced by their political beliefs, their personal values, their individual personalities, and other extra-legal factors.
A statistical natural language processing method has been applied to automatically predict the outcome of cases tried by the European Court of Human Rights (violation or no violation of a specific article) based on their textual contents, reaching a prediction accuracy of 79%.A subsequent qualitative analysis of these results provided some support towards the theory of legal realism. The authors write: "In general, and notwithstanding the simplified snapshot of a very complex debate that we just presented, our results could be understood as lending some support to the basic legal realist intuition according to which judges are primarily responsive to non-legal, rather than to legal, reasons when they decide hard cases."
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning and analogy, legal systems, legal institutions, and the proper application and role of law in society.
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.
Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
In the philosophy of law, virtue jurisprudence is the set of theories of law related to virtue ethics. By making the aretaic turn in legal theory, virtue jurisprudence focuses on the importance of character and human excellence or virtue to questions about the nature of law, the content of the law, and judging.
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s. CLS adherents claim that laws are devised to maintain the status quo of society and thereby codify its biases against marginalized groups. Despite wide variation in the opinions of critical legal scholars around the world, there is general consensus regarding the key goals of Critical Legal Studies:
Ronald Myles Dworkin was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to renowned philosopher H. L. A. Hart. An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact." According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century. After his death, the Harvard legal scholar Cass Sunstein said Dworkin was "one of the most important legal philosophers of the last 100 years. He may well head the list."
Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts: formalists believe that there is an underlying logic to the many legal principles that may underlie different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some amount of legal expertise. The ultimate goal of that kind of formalism would be to describe the underlying principles in a single and determinate system that could be applied mechanically—from which the term "mechanical jurisprudence" comes. Formalism has been called "the official theory of judging." Its antithesis is legal realism.
The term formalism describes an emphasis on form over content or meaning in the arts, literature, or philosophy. A practitioner of formalism is called a formalist. A formalist, with respect to some discipline, holds that there is no transcendent meaning to that discipline other than the literal content created by a practitioner. For example, formalists within mathematics claim that mathematics is no more than the symbols written down by the mathematician, which is based on logic and a few elementary rules alone. This is as opposed to non-formalists, within that field, who hold that there are some things inherently true, and are not, necessarily, dependent on the symbols within mathematics so much as a greater truth. Formalists within a discipline are completely concerned with "the rules of the game," as there is no other external truth that can be achieved beyond those given rules. In this sense, formalism lends itself well to disciplines based upon axiomatic systems.
Jeremy Waldron is a New Zealand professor of law and philosophy. He holds a University Professorship at the New York University School of Law, is affiliated with the New York University Department of Philosophy, and was formerly the Chichele Professor of Social and Political Theory at All Souls College, Oxford University. Waldron also holds an adjunct professorship at Victoria University of Wellington. Waldron is regarded as one of the world's leading legal and political philosophers.
The Nature of the Judicial Process is a legal classic written by Associate Justice of the United States Supreme Court, and New York Court of Appeals Chief Justice Benjamin N. Cardozo in 1921. It was compiled from The Storrs Lectures delivered at Yale Law School earlier that year.
Karl Nickerson Llewellyn was a prominent American jurisprudential scholar associated with the school of legal realism. The Journal of Legal Studies has identified Llewellyn as one of the twenty most cited American legal scholars of the 20th century.
Jerome New Frank was an American legal philosopher and author who played a leading role in the legal realism movement. He was Chairman of the Securities and Exchange Commission, and a United States Circuit Judge of the United States Court of Appeals for the Second Circuit.
Morton J. Horwitz is an American legal historian and law professor at Harvard Law School. The recent past dean of Harvard Law School, Elena Kagan, relates that during her time at law school, students often nicknamed him as "Mort the Tort" since he taught the first-year subject Torts.
E. Adamson Hoebel (1906–1993) was Regents Professor Emeritus of anthropology at the University of Minnesota. Having studied under Franz Boas, he held a PhD in anthropology from Columbia University. There he also attended the seminars of Karl N. Llewellyn, who taught at the Columbia Law School from 1925–1951. Llewellyn (1893–1962) was the most important figure associated with the American Legal Realism of the 1920s and 1930s, which held that the law was indeterminate on the basis of statutes and precedents alone and required study of the how disputes are resolved in practice. The "sociological" wing of legal realism championed by Llewellyn held that in American law dispute resolution was strongly influenced by norms such as those in mercantile practice. Llewellyn and Hoebel (1941) went to on to develop a means of determining legal practice from ethnographic description of trouble cases, including mediation and negotiation as well as adjudication. Their "case study method" applied both to social systems with and without formal courts.
The legal process school was a movement within American law that attempted to chart a third way between legal formalism and legal realism. Drawing its name from Hart & Sacks' textbook The Legal Process, it is associated with scholars such as Herbert Wechsler, Henry Hart, Albert Sacks and Lon Fuller, and their students such as John Hart Ely and Alexander Bickel. The school grew in the 1950s and 1960s. To this day, the school's influence remains broad.
New legal realism (NLR) is an emerging school of thought in American legal philosophy.
Skepticism in law is a school of jurisprudence that was a reaction against the idea of natural law, and a response to the 'formalism' of legal positivists. Legal skepticism is sometimes known as legal realism.
Brian Leiter is an American philosopher and legal scholar who is Karl N. Llewellyn Professor of Jurisprudence at the University of Chicago Law School and founder and Director of Chicago's Center for Law, Philosophy & Human Values. A review in Notre Dame Philosophical Reviews described Leiter as "one of the most influential legal philosophers of our time", while a review in The Journal of Nietzsche Studies described Leiter's book Nietzsche on Morality (2002) as "arguably the most important book on Nietzsche's philosophy in the past twenty years."
This is an index of articles in jurisprudence.
A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authorities issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide by, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, which regulates the conduct of people, and generality, which is binding on an indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding on them, such as soldiers and public officials.