US Legal Realism Movement

“…the life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed…"(M. Lerner, The Mind and faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions).

Explain the claims being made in this statement, and their significance for legal theory, with reference to American legal realism

The U.S. legal realism movement commenced in 1881 when an American jurist, Oliver Wendell Jr. expressed that ‘The life of the law has not been logic; it has been experience… The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’ [1] The notion of Oliver’s statement simply accentuates law is a subjective system drafted by human beings, and therefore, inconsistency is inevitable. He deemed the imperfect and incoherent outcomes of the common law adjudication are anchored in the social, political, and moral preference of the judges. Despite the legal realism movement dramatically declined after the World War II, nonetheless, it never stopped influencing on nowadays judges and lawyers perceiving law. It is essential to examine beyond the literal meanings of Oliver’s claims to comprehend the magnitude of a movement of legal studies called American Legal Realism has had impact on our common law legal system.

The Rise of Legal Realism Theory

Legal realism revolutionized the study of early law by shifting attention from the written law codes and legal systems to a social relations and culture based approach. This transformation can be described as law in action against law in books. The realists believed that the formalistic legal system did not sustain with the rapid changes of the societies, and more importantly, it became a burden of advancement. [2] Prior to the arisen of legal realism, law was viewed generally as mechanically jurisprudence. In other words, law was viewed as a complex system with sets of precise rules constructed by the legislature. The roles of judges were only to determine which relevant rules to be used and applied to the cases. Legal realists wanted to emphasize the importance of human will and fallibility both in the law making and interpretation processes. The legal realists generally wanted to replace formalism with a sensible approach towards law. In other words, they were leaning to regard law as made but not found. Therefore, law must be based on human experience, policy, and ethics, rather than formal logic. In addition, legal principles are not inherent in some universal, timeless logical system. They are social constructs, designed by people in specific historical and social contexts for specific purposes to achieve specific ends. Law and legal reasoning were supposed to be parts of the way to create the form of social life. Hence, they believed the development of legal realism was necessary to reflect the realities of the altering situations.

The Impact of Legal Realism on Traditional Legal Perspective

Legal Realism has fundamentally altered our conceptions of legal reasoning and of the relationship between law and society. As Hans Meyerhoff suggested:

In a contextual type of analysis such as Socrates conducted, there may be clarification and enlightenment, but there are no final answers. The analysis may clarify meanings and truths as they arise in different linguistic contexts or in different human situations, but there are no final answers because there is nothing fixed or final about the contexts or situations that we encounter in actual life. [3] 

The original legal realists wanted to understand legal rules in terms of social consequences. To better their understanding of how law functions in the real world, they attempted to unify law and the social sciences. They believed that this knowledge would enable them to reform the legal system to achieve higher efficiency and social justice. In addition, the legal realists proclaimed the ineffectiveness of both legal rules and abstract concepts. They believed rules should not be an element to decide the outcome of the cases in reality. The legal realists suggested it would alleviate the judicial decisions become more predictable when focusing on the specific facts of cases and social reality in general, rather than on legal doctrine.

Furthermore, the legal realists also proposed it was impossible to generalize judicial decisions because every judge was different and only the personalities of judges could explain their decisions. Social context, the facts of the case, judges’ ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time. [4] It was the legal realists’ intention to replace formalistic deduction of consequences from abstract concepts with explicit policy, moral and institutional analysis.

Moreover, the legal realists argued that the traditional legal reasoning demanded by judicial opinions substantially constrained the judges. According to John Dewey, judges must combine and balance two different goals. The first goal is to choose legal rules that have desirable social consequences. [5] To some extent, this goal is independent of precedent, and requires a type or reasoning characteristic of social science. The second goal is ‘to enable persons in planning their conduct to foresee the legal import of their acts’ [6] by judicial decisions that ‘possess the maximum possible…stability and regularity.’ [7] In order to accomplish the above goals, judges must state their decisions in the form of rules that people can utilize for monitoring their own conducts. The judges therefore write opinions that seek to elaborate general principles that can be applied in a regular way to new situations. Yet, the judges may not have decided the case by applying these principles. Instead, the judges searched for principles worthy to serve as foundation for the decision. Judges therefore use one form of reasoning to reach the decision and another independent form of reasoning for justifying the decisions. John Dewey also noted ‘…[T]he logic of exposition is different from that of search and inquiry.’ [8] 

The legal realists argued that judges could easily construct arguments for a ruling on either side of the case. As a result, existing doctrine may therefore be manipulative, ambiguous, and contradictory, yet still substantially hamper judges’ decisions. As illustrated in the case of Pepper v Hart [9] , the judicial decision provoked issue of whether it was legitimate to construe a statute by reference to essentially subjective and unreliable materials which were distant from the text which was being interpreted. As Lord Mackay pointed out, practically every question of statutory construction will involve a contention that the provision at issue is ambiguous, obscure, or leads to an absurdity. All of these efforts only complicate litigation, and add to its expense and for pretty marginal advantages. [10] 

In contrast to Legal Realism, mechanical jurisprudence embraced impartial standards. It ignored the actual intent of the parties, their particular characteristics, abilities, needs, and the social context in which the event occurred. For instance, in tort law, negligence is defined by a reasonable person standard but not by how one expected the specific defendant to act. In other words, mechanical jurisprudence tends to apply the general principles relentlessly regardless of the underlying policies or the consequences of these policies in specific cases.


The legal realists argued that it was impossible to induce a unique set of legal rules from existing precedents. According to Felix Cohen, every case was different from every other in some respect, and that judges had no alternative but to engage in ethical inquiry to determine the differences between the case at hand and the prior case that mattered. [11] When the legal realists argued against the practice of deducing rules from abstractions, they hoped to focus attention on the facts of specific cases and to understand the development of the law in terms of each situation. Furthermore, they argued that judges should make law based on a thorough understanding of social reality. The legal realists suggested that judges should not make value judgments in the abstract about the substantive content of the law. Instead, judges should closely examine the social context in which those affected by legal rules operate. By understanding the social context would enable judges to adjudicate disputes through situation-sense, meaning the ability to fit the law to social practice. Finally, the legal realists argued against formalistic application of rigid rules regardless of their social consequences. Judges should apply rules by looking to the goals of the rules and their social effects. In addition, legal realists believed that judges should change or modernize rules to respond to the rapid changes of social values and norms. As Holmes argued:

[I] think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious... [12] 

The question of whether judges make or find law troubles legal theorists for long time. The legal realists proposed two insights: (1)Judges exercise judgment, that is they make law; and (2)Judges are substantially constrained in the judicial process by the social and institutional context in which they act, that is they find law. The challenge of striking balance between these two insights is the most pronounced characteristic of the current state of legal theory.

I have discussed the legal realists’ approach to legal reasoning, but the next question will come to my mind - what is law then? The legal positivists will say that the law is rules given by legal authorities, and this question is best answered by a description of the relevant rules. Legal realists argue that the law is what judges say it is, and the question is best answered by the prediction about how judges will decide. Regardless, law is based to some substantial extent, on our intuitive judgments of right and wrong, fairness and unfairness. Yet, it is inaccurate to describe intuitive judgments as just opinion. In fact, judgments are inevitably the opinion of someone situated in our society with experience shared with others. Despite varies of legal theorists have been talking past each other a lot, it seems to me that we should try to figure out where we disagree and where we agree upon each other.