The school of legal philosophy that challenges the orthodox view of U.S.

jurisprudence under
which law is characterized as an autonomous system of rules and principles that courts can
logically apply in an objective fashion to reach a determinate and apolitical judicial decision.

Legal realists maintain that common-law adjudication is an inherently subjective system that
produces inconsistent and sometimes incoherent results that are largely based on the political,
social, and moral predilections of state and federal judges.

The U.S. legal realism movement began in 1881 when Oliver Wendell Holmes, Jr., published
The Common Law, an attack on the orthodox view of law. "The life of the law has not been
logic," Holmes wrote, "it has been experience" (p. 5). Legal realism flourished during the
1920s and 1930s when Roscoe Pound, a professor from Harvard Law School, and Karl
Llewellyn, a professor from Yale Law School, published a series of articles debating the
nuances of the movement. Although the movement declined after World War II, it continues
to influence how judges, lawyers, and laypersons think about the law.

Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn,
were sharply critical of each other and presented irreconcilable theories. Yet, five strands of
thought predominate in the movement. The strands focus on power and economics in society,
the persuasion and characteristics of individual judges, society's welfare, a practical approach
to a durable result, and a synthesis of legal philosophies.

Power and Economics in Society

The first strand is marked by the nihilistic view that law represents the will of society's most
powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he
tells Socrates that in every government "laws are made by the ruling party in its own
interest," and "the ruling element is always the strongest." When courts speak in terms of
what is right and just, Thrasymachus said, they are speaking "in the interest of those
established in power" (Plato, 18). Justice Holmes echoed these sentiments when he wrote that
the law must not be perverted to prevent the natural outcome of dominant public opinion
(Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).

Realists argued that law frequently equates the dominant power in society with pervasive
economic interests. During the incipience of the U.S. legal realism movement in the
nineteenth century, the United States was transformed from a static agrarian economy into a
dynamic industrial market. Realists asserted that U.S. common law facilitated this
transformation in a number of ways. When interpreting an insurance contract, one judge
remarked in 1802 that courts must not adopt an interpretation that will "embarrass
commerce." Instead, the judge said, courts are at liberty to "adopt such a construction as shall
most subserve the solid interests of this growing country" (Horowitz 1977, 27).

To help subsidize the growth of a competitive economy in the nineteenth century, realists
have argued, U.S. judges commonly frowned on claims brought by litigants seeking
monopolistic power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 A.D. 270 (1805), a
downstream landowner asked the New York Supreme Court to grant him the exclusive right
to use river water for commercial activity despite any injuries that might result to upstream
owners. The court refused to grant such a right because if it did "the public would be
deprived of the benefit which always attends competition and rivalry." In a subsequent case,
the New York Supreme Court held that a landowner's right to enjoy his property could be
"modified by the exigencies of the social state" (Losee v. Buchanan, 51 N.Y. 476 [1873]).
The court added, "We must have factories, machinery, dams, canals and railroads."

At the same time the common law was facilitating economic expansion, realists claimed that
it was also helping to increase the number of exploited U.S. citizens. Realists were skeptical
of the traditional description of the U.S. economy as a free market. They felt that the
economy was regulated by common-law principles that safeguarded the interests of society's
wealthiest members. In support of this contention, realists pointed to landlord-tenant laws that
entitled lessors to evict lessees for technical breaches of their lease, labor laws that allowed
management to replace striking workers, and contract laws that permitted employers to
terminate their workers without justification.

The realists' economic analysis of law spawned two related movements in U.S. jurisprudence
that occupy polar extremes on the political spectrum. One is the conservative law and
economics movement, whose adherents believe that common-law principles must be
interpreted to maximize the aggregate wealth of society without regard to whether such
wealth is distributed equally. The other is the liberal critical legal studies movement, whose
adherents, called crits, believe that the law must be utilized to redistribute wealth, power, and
liberty so that every citizen is guaranteed a minimum level of dignity and equality.

Since the mid-1900s, the crits have focused less on what they perceive as economic
exploitation in the law, and more on what they see as political exploitation. In this regard they
have assailed various U.S. courts for advancing the interests of adult, white, heterosexual
males at the expense of women, blacks, and homosexuals. The crits have commonly
referenced three cases to corroborate this point: McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct.
1756, 95 L. Ed. 2d 262 (1987), in which the Supreme Court rejected a constitutional
challenge to capital punishment despite evidence that black defendants are almost three times
more likely than whites to receive the death penalty for murdering a white person; Craig v.
Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), in which the Supreme Court
ruled that the Equal Protection Clause of the Fourteenth Amendment provides less protection
against discrimination for women than for members of other minority groups; and Bowers v.
Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in which the Supreme
Court refused to recognize a constitutional right to engage in homosexual intercourse.

The Persuasion and Characteristics of Individual Judges

The second strand of realist thought subscribes to the relativistic view that law is nothing
more than what a particular court says it is on a given day, and that the outcome to a legal
dispute will vary according to the political, cultural, and religious persuasion of the presiding
judge. Some realists, such as Jerome N. Frank, another prominent thinker in U.S.
jurisprudence during the 1920s and 1930s, insisted that a judge's psychological and
personality characteristics also sway the judicial decision-making process. Justice Benjamin
N. Cardozo, of the Supreme Court, went so far as to characterize judges as legislators in
robes.

The notion that judges legislate from the bench was a revolutionary idea that flew in the face
of orthodox legal thought in the eighteenth and nineteenth centuries. In The Federalist, no.
78, Alexander Hamilton enunciated the orthodox position when he said the judiciary is the
"least dangerous branch" because it has "neither force nor will, but merely judgment." The
legislature, Hamilton said, has the power to prescribe the rights and duties by which the
country is to be regulated, and the executive has the obligation to enforce these laws through
the power of the sword. The role of the judiciary, Hamilton wrote, is simply to interpret and
apply the laws passed by the other two branches.

Hamilton's view resonated in the opinions of Chief JusticeJohn Marshall, who wrote that
"courts are the mere instruments of the law, and can will nothing" (Osborn v. Bank of United
States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). Judicial power, Marshall said, should
never be exercised for the purpose of implementing the will of the judge. Instead, courts must
exercise their power solely to implement the will of legislators, who, as the elected
representatives of the American people, embody the "will of the law."

Hamilton and Marshall both believed that law is an autonomous body of knowledge
independent and distinguishable from the personal preferences of the judge applying it, and
that it is possible to interpret this body of knowledge in an objective fashion. Adherents to
this theory of law are known as formalists. In the nineteenth century, formalists asserted that
state and federal law constitute a rational system of rules and principles that judges can apply
in a mechanical fashion to reach a clear, certain, and uncontroversial resolution to a legal
dispute.

Realists, such as Justice Cardozo, questioned the formalists' assumption that law could be
autonomous and objective, or produce demonstrably certain outcomes. In The Nature of the
Judicial Process, a groundbreaking book first published in 1921, Cardozo argued that law is a
malleable instrument that allows judges to mold amorphous words like reasonable care,
unreasonable restraint of trade, and due process to justify any outcome they desire.

For example, courts are commonly asked to invalidate contracts on the ground that one party
exercised duress and undue influence in coercing another party to enter an agreement.
Cardozo noted that terms such as duress and undue influence are subject to interpretation. He
argued that judges who are inclined to shape the law in favor of society's weaker members
will construe them broadly, invalidating many contracts that stem from predatory behavior.
On the other hand, judges who are inclined to shape the law in favor of society's stronger
members will construe such words narrowly, allowing particular individuals to benefit from
their guile and acumen.

Even when language is clear, Cardozo explained, the law often presents courts with
competing and contradictory principles to apply and interpret. For example, in Riggs v.
Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), the New York Court of Appeals was presented
with the question of whether a man could inherit under a will that named him as a
beneficiary, even though he had murdered the testator, his grandfather. The lodestar of
testamentary interpretation, Cardozo observed, is that courts must interpret a will according
to the explicit intentions of the testator. In this case, juxtaposed with this seemingly
unequivocal rule was the ancient maxim of equity, "No man shall profit from his own
wrong." Depending on the outcome the court of appeals desired to reach in Riggs, Cardozo
concluded, the panel of three judges could have relied on either legal axiom in support of its
decision. In fact, the court was divided on the issue, with two judges voting to disinherit the
murderous grandson, and the other voting to enforce the will.

Society's Welfare
Convinced that common-law principles can be manipulated by the judiciary, Cardozo was
concerned that instability and chaos would result if every judge followed his or her own
political convictions when deciding a case. To forestall the onset of such legal disarray,
Cardozo and other realists argued that all judges must interpret the law to advance the welfare
of society. "Law ought to be guided by consideration of the effects [it will have] on social
welfare," Cardozo wrote (Posner 1990, 26). This theory of law is known as sociological
jurisprudence, and represents the third major strand of thought in the U.S. legal realism
movement. Proponents of sociological jurisprudence encouraged judges to consult communal
mores, ethics, and religion, and their own sense of justice when attempting to resolve a
lawsuit in accordance with the collective good.

Sociological jurisprudence was foreshadowed by English philosopher Jeremy Bentham, who

argued that the law must serve the interests of the greatest number of people in society.
Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the collective
good in terms of pain and pleasure. Judges should decide cases, Bentham thought, to achieve
results that will maximize the pleasure of the majority of the residents in a given community,
without much concern for the pain that might be inflicted on the balance of society.

Some realists turned Bentham's philosophy on its head, arguing that the law should serve the
interests of the most fragile members in society because they are the least represented in state
and federal legislative assemblies. This group of realists was affiliated with the U.S.
Progressive movement, which became popular during the first quarter of the twentieth
century as it sought to reform society by enacting legislation to protect certain vulnerable
classes of employees, particularly women and children, from harsh working conditions.
These realists were among the most vocal detractors from the Supreme Court's decision in
Lochner, which struck down a state law prescribing the maximum number of hours
employees could work during a given week in the baking industry.

A Practical Approach to a Durable Result

Whereas sociological jurisprudence sought to utilize the common law as an engine of social
reform, legal pragmatism, the fourth strand of realist thought, sought to employ common-law
principles to resolve legal disputes in the most practical way. Pragmatists argued that a judge
should undertake a four-step process when rendering an opinion.

First, the judge must identify the competing interests, values, and policies at stake in the
lawsuit. Second, the judge must survey the range of alternative approaches to resolving the
legal issues presented by the lawsuit. Third, the judge must weigh the likely consequences of
each approach, considering the effect a particular decision may have on not only the parties to
the lawsuit but also other individuals faced with similar legal problems. Fourth, the judge
must choose a response that will yield the most durable result in the course of the law. This
pragmatic legal philosophy is often characterized as result-oriented jurisprudence.

A Synthesis of Legal Philosophies

The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four
strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that
law is best explained as a prediction of what judges will do in a particular case. Empiricists,
who were influenced by behaviorists Ivan Pavlov and B. F. Skinner, argued that lawyers can
predict the outcome of legal disputes by examining the judicial behavior of a given court.
The empiricists' efforts to integrate the other four schools of legal realism into one coherent
philosophy was reflected by their belief that judicial behavior can be influenced by political,
economic, sociological, practical, and historical considerations, as well as personal and
psychological prejudices and idiosyncracies. Lawyers and laypersons who spend more time
studying these elements and less time studying the labyrinth of legal rules and principles that
make up the law, the empiricists concluded, will have a better idea of how a judge will rule in
a particular case.

Legal Realism vs. Morality

Anthony D'Amato

Northwestern University School of Law

The Limits of Legal Realism. The Yale Law Journal 87 (Jan. 1978): 468513.

Legal realism is generally agreed to be that which officials do in fact. The author suggests
that one shortcoming of legal realism is its neglect of the normative dimension of the law. For
example, in Nazi Germany some persons procured the imprisonment or execution of others
for offenses against the regime. After World War II, some informers were prosecuted for
such crimes as murder, false imprisonment, and deprivation of another's liberty. The
informers' defense was that their actions were legal. A problem is raised when a subsequent
law given retroactive application destroys the lawfulness of a statute.

. . . If an entire new set of officials can be imagined in any given legal system, then all
conduct is potentially questionable. Is buying a house in the United States slightly illegal to a
legal realist aware of the remote possibility that a communist regime might take over the
country and prosecute the home buyer as a bourgeois capitalist? Surely the Nazi regime must
have seemed very stable in the 1930s. . . For legal realists, the legality of any conduct can be
questioned on the basis of imaginable future sets of officials.

Consequently, the author contends, legal realism fails to resolve the grudge informer case.
Legal realism is tied to the prediction of actions of people who are either in power or who
may come into power in a given territory. The dilemma is: law has to operate in the present
and not retroactively, but new officials may arise and negate the enactments of present
officials. The answer, the author feels, must be found in moral, not legal philosophy. Public
perception of what is right appears to be the ultimate limit on the authoritativeness of
official action.

The formal validity of an immoral statute may not compel the public to recognize its status
as law, or the status of enacting officials as authoritative. A prime example might be the
reaction of many Southern statesmen to the legislative decree without constitutional
amendment by the U.S. Supreme Court in Brown v. Topeka Board of Education (1954). The
Court's school desegregation decision was not necessarily recognized as valid since the
Supreme Court was not, theoretically and legally, regarded as a law-making body. The
public's perception of what is right may sometimes limit the authoritativeness of official
action. Official and authority conveys a normative dimension rather than naked power
and suggests a necessary relation between law and morality.
The notion that popular acceptance of the legitimacy of officials' entitlement to make
authoritative decisions is grounded on morality (and not on purely legal construct) might
reverse the might makes right world view of both positivism and legal realism.