Clarifying the Normative Dimension of Legal Realism: The Example of Holmes's 'The Path of the Law'
15 Pages Posted: 27 Oct 2012
Date Written: 2012
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: Suggested Citation