Legal Realism in Context
Elizabeth Mertz, editor, New Legal Realism, Volume 1 (Cambridge University Press, 2015 Forthcoming)
47 Pages Posted: 14 Dec 2014
Date Written: December 11, 2014
“We are all realists now,” it is frequently said, yet what legal realism was about remains vigorously debated by legal theorists and historians. The debate continues because the jurists we think of as core legal realists were not members of a group. Karl Llewellyn said this multiple times in his famous essay detailing realism. On the very first page, he explained that when speaking of the realists he would shift to the “first person singular” because their “diverse work is individually colored” and he did not want to use “phrasing which would seem to suggest a non-existent school.” Llewellyn repeated this in the middle of the article: “There is no school of realists. There is no likelihood that there will be such a school. There is no group with an official or accepted, or even with an emerging creed.” “Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say Langdell.” To insure that this message was not lost on readers, Llewellyn closed the essay with a final reminder: “A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group.” Contemporary scholars who make assertions about what the legal realists stood for often fail to account for these passages.
Legal realism, I argue in this essay, is best understood not in terms of a small group of uniquely enlightened jurists who emerged in the 1920s and 1930s to debunk legal formalism, but rather in terms of three overlapping complexes of ideas that emerged in the late nineteenth century and had become widespread by the time of Llewellyn’s article. The first was the view that society was changing rapidly while law, understood as a means to achieve social ends, lagged badly behind, producing an urgent need for legal reform. The second was the growing refrain among legal academics that newly developing social sciences should be applied to enhance an understanding of the actual facts surrounding law. The third was a vocal backlash against judges for impeding reform, including charges that they were importing class bias into their legal decisions, prompting a broader acknowledgement that the background social attitudes of judges play a role in their decisions. These three themes were interpenetrating: the popular dissatisfaction with the failings of law was manifested in criticism of courts, and resort to social science was the favored academic solution.
To get a sense of how deeply these notions had penetrated the legal culture, consider a 1929 Address by Felix Frankfurter at an AALS panel on legal research (at which Llewellyn also spoke). Frankfurter laid out a contrast between the old Langdellian view, which saw legal research as purely a matter of exploring legal doctrine, and the modern view, espoused by Holmes, that directs attention toward law’s interaction with society. Holmes had resoundingly won the day, Frankfurter tells us. “’Functional approach,’ ‘law in books and law in action,’ ‘the administration of law as its center of gravity,’ — these express perhaps the dominant preoccupations of contemporary jurisprudence and the problems which they imply are as intricate and exhilarating as they are still unanswered.” This was uttered a year before Llewellyn’s article announcing legal realism.
Realism characterized the new modern age of thinking about law, and it ran much earlier and more broadly than is now commonly recognized.
Keywords: Legal history, Jurisprudence, law and the humanities, law and the social sciences
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