Legal realism is comprised of two schools being American Legal Realism and Scandinavian Legal Realism. The Scandinavian Legal Realism propounded largely by philosophers was primarily an extension to law of philosophical doctrines from semantics and epistemology . American Legal Realism on the other hand was propounded by lawyers and emerged in American law schools in the early parts of the 20th Century. This paper shall focus on American Legal Realism.
Realism is concerned with the “law in action” as opposed to the “law in books”. Rather than focusing on what legal theorists say what they think the law is like in the positivist and natural law schools of thought, legal realism focuses on what judges and lawyers actually do in the course of their law practise.
At the time that this theory arose, the prevailing understanding of the nature of legal reasoning was a positivist approach that consisted of “formalism” also known as “mechanical jurisprudence” where judges applied the correct law to the facts in the correct way to reach a legally correct decision. In other words, because the law was a self-contained and consistent set of rules, the judge could logically deduce what conclusion a particular rule required in a particular case after the correct legal rule was extracted from the law.
The legal realists rejected this notion because among other things it presupposes that for every dispute or argument, there is a single correct answer that can be deduced by the application of logic.
2. CONCEPTS OF REALISM.
2.1. Indeterminacy of the law
“The life of the law has not been logic; it has been experience…The law embodies the study of a nations development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics” Oliver Wendell Holmes, Jr .
One of the main arguments of legal realists was that the nature of law as found in legal documents, statutes was rationally indeterminate i.e. it was not concrete or definite or capable of a single defined interpretation. The nature of the words used in a legal document was that they were capable of multiple meanings, appreciations and interpretations by the particular individual or judge who was reading them. Essentially, the words found in a statute did not have a single meaning ascribed or attached to them and the interpretation of those words differed depending on who was reading or applying them at a particular time and place. In addition, there were a number of varied legal rules in precedents and statutes potentially relevant to any legal case that conflicted with each other but were equally legitimate forms for interpretations of the said precedent and statute .
The other argument was that the law was also causally or explanatorily indeterminate meaning that legal reasons did not sufficiently explain why the judges decided the way they did. The traditional decision making process of logically deducing a single correct answer by the application of the correct law, could not be supported especially in cases where faced with the same legal rule and facts, judges decided differently. Therefore in order to understand how judges decided the way they did, it was important for one to look beyond the law.
The other concept of indeterminacy related to fact scepticism. The assertion here was that facts are appreciated differently by judges. Even where the law to be applied was in the traditional sense, clear cut and determinate, the facts of the case appreciated differently, could still lead to varied conclusions.
A further concept of indeterminacy of the law related to the principle of stare decisis and the doctrine of precedent, basically that the decision of a court in one case could serve as a guide to other similar cases in the future. Although judges were bound by previous decisions, there was nothing to stop a future decision maker from finding a feature or fact that distinguished the case before him with the precedent he was to rely on.
The main claim here was that the existing rules were of such a general nature that they bore no relation to the fact-specific way in which judges decided matters. Later judges therefore had leeway to redefine the holdings in previous cases which then enabled the judge to rewrite the rules of law that had been applied to previous cases. They were not bound by the original judge’s perception of what was central or necessary for their decision.
2.2. The core claim
The core claim of legal realism endorsed by all realists and more specifically Herman Oliphant is that courts respond to the stimulus of the facts before them in court rather than the stimulus of the general abstractions in opinions and treatises. In other words in deciding cases before them, judges primarily respond to the facts of the case rather than the stimulus of legal rules and reasons.
It is important to understand this core claim in the context of the cases that the realists were concerned and it was those cases which were at the state of appellate review. Therefore it was not that judges had to take into account the facts of the case to reach a conclusion but rather that in deciding the case, judges reacted to the facts whether or not they were significant or relevant to the applicable legal rules.
Secondly, the core claim should not be understood to mean that legal rules and reasons did not or ever affect the outcome of a legal dispute. However, in the particular class of cases that legal realism dealt with, these had little or no effect. Their criticism of legal rules as articulated by the courts and scholars was that these had become too general and abstract thus ignored the specific factual circumstances in which the dispute had originally arisen.
2.3. Empirical testing
Legal realists emphasized that the law should be treated scientifically. The legal rules thus had to be tested against evidence to see whether they really produced the results that they were intended to produce through a scientific examination of why certain decisions were reaches as opposed to undertaking an academic exercise to determine whether the decisions were logical conclusions of the legal rules. This follows from the concept of indeterminacy of the law. So that because legal reasons and rules cannot rationalize or explain decisions of the court, one must look at other factors to explain why the court decided in the manner in which it did.
2.4. Legal reasoning as rationalization
Unlike the traditional decision making process where a rule or principle of law is applied to a set of facts in order to arrive at a conclusion, legal realists propound that the process should actually be backwards. The judge arrives at the decision i.e debates which sentence to give and then he then finds the premises (legal rules, precedents) supporting this sentence.
Legal reasoning here is thus a rationalization of the decision that has already been arrived at by the judge. Judge Joseph Hutcherson believed that the vital impulse for a decision was an intuitive sense of what was right or wrong for the case. He felt that a good judge arrived at a decision upon being guided by a hunch or flash of insight that would light the way and would point him in the right direction. The rest of the opinion of the judge was then just rhetoric and was meant to support the hunch/intuition with the appropriate legal rules to mask the arbitrary nature of their decision making.
Jerome Frank in his 1930 book on Law and the Modern Mind , cited the Chancellor Kent an American Judge who said that he first made himself a master of the facts then he saw where the justice lied and sat down to search the authorities and finally almost always found principles that suited his view of the case.
Realists believe that the guiding force of decision making by the judge should be responding to the real human needs before them and not strictly adhering to inferences drawn from the abstract and indeterminate body of rules. This was also supported by their view that the law consisted of decisions and not rules.
3. LEGAL REALISM VIEW AND THE CONVENTIONAL VIEW
CONVENTIONAL VIEW REALISTS VIEW
Judges only apply laws made by legislature. Statutes are only effective once courts have interpreted and apply it.
Their role is passive and they are bound to follow the decisions of previous judges Judges are free to deviate from previous decisions where there are factors which distinguish their case from the previous one.
Only the legislature can make and new law and therefore any changes judges make to law are merely corrections and not alterations Judges do make and change the law and statutes and other sources of the law are not law until the courts determine that they are.
Adjudication of a matter happens in a logical and mechanical matter employing deductive reasoning. Adjudication is not logical nor deductive
Judges apply the law made by the legislature impartially. Adjudication is a subjective exercise because many factors influence the judge’s decision, e.g his beliefs, personal experiences etc.
The law is self-contained body of rules which if applied correctly, will speak with one voice and produce the right legal answer. The law is indeterminate, full of gaps and no real answers.
4. THE SOCIOLOGICAL AND IDIOSYNCRATIC FORMS OF REALISM
As stated earlier, according to legal realists, judges do not make decisions on the basis of abstract legal rules but respond to the facts and make a decision which is then rationalized with the use of the legal rules. Although all legal realists accepted the core claim of legal realism, there was no consensus on the particular way to explain why judges responded to the facts of the case in the manner in which they did.
There was thus the sociological wing of realism represented by writers such as Felix Cohen, Herman Oliphant, Karl Llewellyn and Underhill Moore that felt that various social forced operated on the judge to make him respond to facts in a similar or predictable way. For example, prevailing market conditions could force a judge to rule in a way that deviated from the norm in order to stop a litigant from escaping a contract he had entered into. In this case the judges responded to the extent to which the facts of the case showed a deviation from the normal behaviour that constituted the desirable behaviour in a particular commercial context.
On the other hand was the idiosyncratic wing of realism represented most notably by Judge Hutcheson and Frank Jerome. Their view was that what determined a judge’s response to a particular set of facts were their idiosyncrasies, relating to their personality, psychology, personal beliefs, and political views. Frank noted that it was the personality of the judge that was pivotal to law administration. However, predictability of decision making based on the idiosyncrasies of the judge would be impossible for observers of judicial behaviour as they would be unable to discover the relevant facts as relating to their personality that made them decide in certain ways.
5. CRITICISMS OF LEGAL REALISM
One of the more prominent critiques of realism was offered by HLA Hart in The Concept of Law . According to Altman , Hart’s theory absorbed a number of claims that there held by the realists. In invoking a conception of law as a system of rules, he essentially repudiated their central claims.
Although Hart agreed to some extent to the indeterminacy of the law, he argued that this indeterminacy occupied a peripheral zone in the legal system and was therefore insufficient to support the claim that the law was indeterminate generally. He further added that legal rules were indeterminate because the law was open textured. This meant that it was inherent if the nature of the language of the law, a limit to the guidance which general language could provide. Thus the words had both “core” instances where aspects of the word fall within the parameters of the word’s meaning and “penumbra” instances where it was not clear whether the meaning of the word could be extended to apply to it. In the second case, the courts would invariably use discretion to determine this.
To the argument concerning the different forms of interpretation of precedents by courts, Hart’s conceded that there was indeed no single method of determining the rule by which a precedent was an authority. However in the majority of decided cases, there was little doubt as to the rule of the case because the head note was usually correct enough.
A second concession in relation to precedents that Hart made was that there was no authoritative or uniquely correct formulation of any rule that could be extracted from previous cases and that the courts engaged in the widening and narrowing of the rules laid down by precedents. However in response to the realists position Hart said that it was evident that most decisions were reached either through an effort to conform to rules consciously as a guiding force or if not to those rules whose relevance to the claim would be acknowledged and those which he was predisposed to observe.
DWORKIN ON LEGAL POSITIVISM
Dworkin’s argument is that if the law is indeterminate to the extent posed by legal realists then judges would always be creating laws and legislating not only in penumbral instances but in all instances. This would in turn violate their duty to apply pre-existing law. In order to avoid this and to make the law determinate, it is suggested that ethical principles be understood and accepted as being part of the law even when not expressly formulated in a legal text or clearly identifiable by the application of a rule specifying the authority of legal norms in terms of their source. Adjudication here requires the judges to invoke principles that would go way past the point where it would be accurate to state that any test of pedigree of the law existed . Their legal obligation is imposed by these principles and established legal rules. It is these principles that guide the judge in determining the outcome of the case when the relevant applicable laws are in competition with each other.
The principles which would be legally binding therefore are those which belong to “the soundest theory of the settled law” . In turn the settled law consists of the rules and doctrines accepted by consensus of the legal community as authoritative.