Clarifying the Normative Dimension of Legal Realism: The Example of Holmes's 'The Path of the Law'

15 Pages Posted: 27 Oct 2012

See all articles by Edmund Ursin

Edmund Ursin

University of San Diego School of Law

Date Written: 2012

Abstract

Brian Leiter has written that most Legal Realists were normative “quietists” who either believed that it made no sense to give judges normative advice or advised judges to do explicitly what they would largely do anyway. In a previous article I explained, however, that Leon Green and Karl Llewellyn were, in Leiter’s terms, “nonquietists” who believed that “judges should adopt, openly, a legislative role, acknowledging that courts make judgments on matters of social and economic policy.” Specifically, they urged courts to adopt doctrines that we identify today with the theory of enterprise liability. In the present article I explain that it is a mistake to divide Legal Realists into quietist and nonquietist camps. Contrary to what one might infer, nonquietism is not an antonym of quietism. Nonquietism is a view of the lawmaking role of courts (judges are lawmakers, and policy plays a role in their lawmaking). Quietism reflects a conclusion (e.g., it makes no sense to give normative advice.) A nonquietist who believed courts were routinely deciding cases in a particular area correctly might well reach the quietist conclusion that it makes no sense to give normative advice. Similarly, nonquietism is not a synonym for activism. Holmes in The Path of the Law, mistakenly depicted by Leiter as a quietist, in fact called on courts to weigh considerations of social advantage. If they did so, he believed, they would (and should) hesitate before nullifying social and economic legislation. So he is a nonquietist arguing against activism.

Keywords: legal philosophy,jurisprudence, torts, legal realism, enterprise liability, legal history

JEL Classification: K33

Suggested Citation

Ursin, Edmund, Clarifying the Normative Dimension of Legal Realism: The Example of Holmes's 'The Path of the Law' (2012). San Diego Law Review, Vol. 49, No. 2, Spring 2012; San Diego Legal Studies Paper No. 12-099. Available at SSRN: https://ssrn.com/abstract=2167388

Edmund Ursin (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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