The Return of Legal Realism
Forthcoming in the Oxford Handbook of Historical Legal Research (Markus D. Dubber & Christopher Tomlins eds., 2018).
23 Pages Posted: 21 Jun 2017
Date Written: June 19, 2017
The main goal of this essay is to explain in what sense “we are all realists now.” It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view “realistic.” One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.
Keywords: legal realism, legal history, jurisprudence, history of jurisprudence, Karl Llewellyn
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