3. LEGAL REALISM
What is Legal Realism?
If law is a system of rules and legal cases the application of those rules, why
do cases get litigated? And why is it that, in most cases the outcome could
have gone either way?
o Law is not a system of rules kept in a safe to be taken out by judges
and mechanically applied to cases as they arise. The role of the judge
is much more discretionary and creative than this.
“Since the ‘rules’ allow the judge considerable free play, he or she can in fact
decide the case in a variety of ways, and the way that is in fact adopted will be
more of a function of such factors as the judge’s psychological temperament,
social class, and values than of anything written down called ‘rules’”.
Most significant realist writing 1900-1960:
o Realists took aim at the dominant ‘mechanical jurisprudence’ or
‘formalism’ of the day, which held that judges decide cases on the
basis of distinctively legal rules and reasons that justify a unique result
in each case.
o Realists argued that how judges really decide cases is not primarily
because of law, but based on their sense of what should be ‘fair’ on the
facts of the case.
Distinction between formalist and realist thinking
Fletcher – pg. 159
o The law as a light passing through a glass and the judge is the glass
How much the law is interpreted depends on the judge/content
of the glass.
Formalism: Glass is empty – the light comes out the same as it
comes in, judge applies the rules mechanically.
Realism: Glass is full – judge’s personal circumstances and
sense of fairness effects how the law is interpreted.
Formalism: Law is a system of rules, can be neutrally and objectively applied
in cases to achieve a unique legal outcome in cases.
, Realism
Legal rules and reasons simply figure as rationalisations after the fact.
Decisions are reached on the basis of non-legal considerations.
Realists draw a distinction between real rules of law and paper rules (legal
theory), between legal theory and the actual practice of courts.
Analogy between legal rules and rules of a game (pg. 159):
o Realists: How the rules are interpreted is no less important than what
the rules say.
o Law is modified and adapted by practice.
Legal realists call for more realism in law.
We need scientific examination of why decisions are in fact reached rather
than some academic exercise about how decisions could be constructed as
logical consequence of rules.
o In law school we try to determine how decisions could be constructed
as the logical consequence of the rules
Legal realists accords with the lawyer’s perspective.
The goal of realism is to explain what the law “really” is in terms of
practicalities rather than theory.
American Realism and Scandinavian Realism
Radical empirical methods are adopted to seek to explain law in terms of
observable behaviour (examining cause and effect).
Antagonistic towards formalism: Law as lifeless phenomenon.
Antagonistic towards metaphysics and values: Justice
Realists concentrate on facts, rather than rules and they are preoccupied with
the actual operation of law in its social context.
American Legal Realism
Deep scepticism about the model of rules and general and abstract legal
theory.
Any theoretical understanding of law must be gradually built from the many
and varied behaviours that we call “legal”.
Realism is not a philosophy- it is a method and nothing more.
o Realists do not work from any theoretical foundation.
What is Legal Realism?
If law is a system of rules and legal cases the application of those rules, why
do cases get litigated? And why is it that, in most cases the outcome could
have gone either way?
o Law is not a system of rules kept in a safe to be taken out by judges
and mechanically applied to cases as they arise. The role of the judge
is much more discretionary and creative than this.
“Since the ‘rules’ allow the judge considerable free play, he or she can in fact
decide the case in a variety of ways, and the way that is in fact adopted will be
more of a function of such factors as the judge’s psychological temperament,
social class, and values than of anything written down called ‘rules’”.
Most significant realist writing 1900-1960:
o Realists took aim at the dominant ‘mechanical jurisprudence’ or
‘formalism’ of the day, which held that judges decide cases on the
basis of distinctively legal rules and reasons that justify a unique result
in each case.
o Realists argued that how judges really decide cases is not primarily
because of law, but based on their sense of what should be ‘fair’ on the
facts of the case.
Distinction between formalist and realist thinking
Fletcher – pg. 159
o The law as a light passing through a glass and the judge is the glass
How much the law is interpreted depends on the judge/content
of the glass.
Formalism: Glass is empty – the light comes out the same as it
comes in, judge applies the rules mechanically.
Realism: Glass is full – judge’s personal circumstances and
sense of fairness effects how the law is interpreted.
Formalism: Law is a system of rules, can be neutrally and objectively applied
in cases to achieve a unique legal outcome in cases.
, Realism
Legal rules and reasons simply figure as rationalisations after the fact.
Decisions are reached on the basis of non-legal considerations.
Realists draw a distinction between real rules of law and paper rules (legal
theory), between legal theory and the actual practice of courts.
Analogy between legal rules and rules of a game (pg. 159):
o Realists: How the rules are interpreted is no less important than what
the rules say.
o Law is modified and adapted by practice.
Legal realists call for more realism in law.
We need scientific examination of why decisions are in fact reached rather
than some academic exercise about how decisions could be constructed as
logical consequence of rules.
o In law school we try to determine how decisions could be constructed
as the logical consequence of the rules
Legal realists accords with the lawyer’s perspective.
The goal of realism is to explain what the law “really” is in terms of
practicalities rather than theory.
American Realism and Scandinavian Realism
Radical empirical methods are adopted to seek to explain law in terms of
observable behaviour (examining cause and effect).
Antagonistic towards formalism: Law as lifeless phenomenon.
Antagonistic towards metaphysics and values: Justice
Realists concentrate on facts, rather than rules and they are preoccupied with
the actual operation of law in its social context.
American Legal Realism
Deep scepticism about the model of rules and general and abstract legal
theory.
Any theoretical understanding of law must be gradually built from the many
and varied behaviours that we call “legal”.
Realism is not a philosophy- it is a method and nothing more.
o Realists do not work from any theoretical foundation.
