Legal Realism in jurisprudential aspects
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. 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.
It challenges the orthodox view of U.S.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. 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, social, and moral predilections of state and federal judges.
The U.S. legal realism movement began in 1881 when oliver wendell holmes jr. published The Common Law, an attack on the orthodox view of law. "The life of the law has not been logic," Holmes wrote, "it has been experience." Legal realism flourished during the 1920s and 1930s when roscoe pound, a professor from Harvard Law School, and karl llewellyn, a professor from Yale Law School, published a series of articles debating the nuances of the movement. Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn, were sharply critical of each other and presented irreconcilable theories. Yet, five strands of thought predominate in the movement. The strands focus on power and economics in society, the persuasion and characteristics of individual judges, society's welfare, a practical approach to a durable result, and a synthesis of legal philosophies.
Power and Economics in Society
The first strand is marked by the nihilistic view that law represents the will of society's most powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he tells Socrates that in every government "laws are made by the ruling party in its own interest," and "the ruling element is always the strongest." When courts speak in terms of what is right and just, Thrasymachus said, they are speaking "in the interest of those established in power." Justice Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the natural outcome of dominant public opinion. Realists argued that law frequently equates the dominant power in society with pervasive economic interests. During the incipience of the U.S. legal realism movement in the nineteenth century, the United States was transformed from a static agrarian economy into a dynamic industrial market. Realists asserted that U.S. common law facilitated this transformation in a number of ways.
At the same time the common law was facilitating economic expansion, realists claimed that it was also helping to increase the number of exploited U.S. citizens. Realists were skeptical of the traditional description of the U.S. economy as a free market. They felt that the economy was regulated by common-law principles that safeguarded the interests of society's wealthiest members. In support of this contention, realists pointed to landlord-tenant laws that entitled lessors to evict lessees for technical breaches of their lease, labor laws that allowed management to replace striking workers, and contract laws that permitted employers to terminate their workers without justification.
The realists' economic analysis of law spawned two related movements in U.S. jurisprudence that occupy polar extremes on the political spectrum. One is the conservative law and economics movement, whose adherents, most prominent and, believe that common-law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. The other is the liberal critical legal studies movement, whose adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of dignity and equality.
Convinced that common-law principles can be manipulated by the judiciary, Cardozo was concerned that instability and chaos would result if every judge followed his or her own political convictions when deciding a case. To forestall the onset of such legal disarray, Cardozo and other realists argued that all judges must interpret the law to advance the welfare of society. In Posner's biography of Cardozo, he quotes him as saying, "Law ought to be guided by consideration of the effects [it will have] on social welfare." This theory of law is known as sociological jurisprudence, and represents the third major strand of thought in the U.S. legal realism movement. Proponents of sociological jurisprudence encouraged judges to consult communal mores, ethics, and religion, and their own sense of justice when attempting to resolve a lawsuit in accordance with the collective good.
Sociological jurisprudence was foreshadowed by English philosopher jeremy bentham, who argued that the law must serve the interests of the greatest number of people in society. Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the collective good in terms of pain and pleasure. Judges should decide cases, Bentham thought, to achieve results that will maximize the pleasure of the majority of the residents in a given community, without much concern for the pain that might be inflicted on the balance of society.
Some realists turned Bentham's philosophy on its head, arguing that the law should serve the interests of the most fragile members in society because they are the least represented in state and federal legislative assemblies. This group of realists was affiliated with the U.S. Progressive movement, which became popular during the first quarter of the twentieth century as it sought to reform society by enacting legislation to protect certain vulnerable classes of employees, particularly women and children, from harsh working conditions. These realists were among the most vocal detractors from the Supreme Court's decision in Lochner, which struck down a state law prescribing the maximum number of hours employees could work during a given week in the industry.
A Practical Approach
Whereas sociological jurisprudence sought to utilize the common law as an engine of social reform, legal pragmatism, the fourth strand of realist thought, sought to employ common-law principles to resolve legal disputes in the most practical way. Pragmatists argued that a judge should undertake a four-step process when rendering an opinion.
First, the judge must identify the competing interests, values, and policies at stake in the lawsuit. Second, the judge must survey the range of alternative approaches to resolving the legal issues presented by the lawsuit. Third, the judge must weigh the likely consequences of each approach, considering the effect a particular decision may have on not only the parties to the lawsuit but also other individuals faced with similar legal problems. Fourth, the judge must choose a response that will yield the most durable result in the course of the law. This pragmatic legal philosophy is often characterized as result-oriented jurisprudence.
A Synthesis of Legal Philosophies
The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that law is best explained as a prediction of what judges will do in a particular case. Empiricists, who were influenced by behaviour of Ivan Pavlov and B. F. Skinner, argued that lawyers can predict the outcome of legal disputes by examining the judicial behaviour of a given court.
The empiricists' efforts to integrate the other four schools of legal realism into one coherent philosophy was reflected by their belief that judicial behaviour can be influenced by political, economic, sociological, practical, and historical considerations, as well as personal and psychological prejudices and idiosyncrasies. Lawyers and laypersons who spend more time studying these elements and less time studying the labyrinth of legal rules and principles that make up the law, the empiricists concluded, will have a better idea of how a judge will rule in a particular case.