legal theory: legal realism

Legal Realism and the Realist Critique


To understand Legal Realism, one must know something of the system of rules and ideas it was designed to discredit and displace. Various labels, most of them censorious, have been used to describe that system (among the other common descriptions are "formalism" and "mechanical jurisprudence"), but the most apt is "classical legal thought."  Formulated during the last third of the nineteenth century, classicism dominated most American legal institutions until the 1930s. Its best-known manifestation was a series of decisions by appellate courts that strengthened the positions of business corporations in their struggles with workers and consumers. For example, federal and state courts invented new legal remedies (such as the labor injunction) and new common law doctrines (such as the rule that union organizers may be held liable for interfering with employers' "contractual relations") that assisted businesses in their efforts to prevent strikes and other forms of collective action by their employees. Early legislative efforts to discourage the formation or to control the behavior of monopolies were construed narrowly by most courts. Last, but not least, many appellate courts around the turn of the century interpreted the "due process" clause of the Fourteenth Amendment - and similar clauses in the state constitutions - in favor of sharply restricting the ability of the state legislatures to interfere with property rights or with employers' "freedom of contract."

A less well known but equally important aspect of classical legal thought was a distinctive style of judicial reasoning. Before the Civil War, and American court confronted with a difficult case typically made a conscious effort to adopt a rule and reach a decision that simultaneously advanced "public policy" (for example, by creating incentives for economic development) and secured "justice" (for example, by ensuring that no morally innocent parties suffered net economic injury or were subjected to obligations to which they had not voluntarily agreed). After the war, this frankly consequentialist style of analysis fell into disfavor. Invocations of precedent - efforts to follow rules or interpretations announced in prior judicial decisions - became more common. When no prior decision seemed directly applicable, a court often would attempt to extract from the rulings made in a group of loosely related prior cases a general principle (the more abstract and encompassing the better) that could be brought to bear on the case before it. Lawyers and judges arguing in this vein did not ignore policy considerations altogether, but tended to invoke them only when selecting the "first principles" from which they could then generate particular rules to deal with particular problems. By 1900, these and a host of related changes had produced a style of legal analysis dramatically different from the mode of reasoning that had been paradigmatic in 1850.[2]

Meanwhile, an influential group of law teachers was elaborating its own version of classicism. Properly organized, law was like geometry, the teachers insisted. Each doctrinal field revolved around a few fundamental axioms, derived primarily from empirical observation of how courts had in the past responded to particular sorts of problems. From those axioms, one could and should deduce - through uncontroversial, rationally compelling reasoning processes - a large number of specific rules or corollaries. The legal system of the United States, they acknowledged, did not yet fully conform to this ideal; much of the scholars' energies were devoted to identifying and urging the repudiation of rules or decisions that disturbed the conceptual order of their respective fields. But once purified of such anomalies and errors, the scholars contended, the law would be "complete" (capable of providing a single right answer to every dispute) and elegant.[3]

The causes of the development of this interrelated set of theories and doctrines are not altogether clear. Some historians attribute the theories' emergence to the conscious effort of judges to maximize the profits and protect the property of the dominant social and economic classes in the United States - partly by inhibiting legislative initiatives that might threaten those privileges and partly by devising a style of analysis that would help to depict the extant distribution of wealth and power as legitimate. Others trace the classical vision to more parochial interests of the legal profession - for example, the desire of the relatively new cadre of professional law teachers to persuade skeptical university presidents and practicing lawyers that law was a science, a technical but integrated field that could be mastered only through three years of full-time study.  Other historians emphasize the influence on lawyers of classical economic theory.  Still other attribute to lawyers in the late nineteenth century a belief that formal rationality could make the law more certain and predictable - and thereby facilitate the planning and pursuit of private ventures of all sorts.  Whatever its sources, by World War I the classical synthesis had come to exert a powerful influence on American law. [4]

Not all participants in American legal culture were captivated by this vision, however. Many courts persisted in discussing and deciding cases using the mode of analysis that had been popular in the early nineteenth century. Regulatory statutes were not always struck down when subjected to constitutional challenges.  Many lawyers in their briefs and oral arguments departed more or less consciously from the classical guidelines.  And a gradually growing group - some of them marching under the banner of "Sociological Jurisprudence" - criticized the work of their classical colleagues as philosophically naïve and politically pernicious. 

In the 1920s, the volume, sophistication, and radicalism of this stream of dissident writings increased substantially. Two circumstances contributed to the surge. First, many young and energetic scholars joined the faculties of leading American law schools. Irreverent, iconoclastic, and steeped in the political tradition of Progressivism, most members of the new generation were less inclined than their elders to see virtue in the extant legal order. Second, legal scholars (and the younger teachers in particular) became more aware of developments in other academic disciplines that seemed to undermine the premises of classical legal thought. Pragmatism in philosophy, non-Euclidean geometry, Einstein's theories of physics, and new approaches in psychology and anthropology all seemed to cast doubt on the utility of systems of axioms and theorems, the value of inductive and deductive reasoning, and the power of formal rules to organize human affairs. It is the work of this enlarged and energized group of critics that legal historians typically refer to as Legal Realism.