Legal Realism
In the early 1920s, in the US, a movement emerged out of the dominant legal positivism. Legal realism said that law was indeed a distinct set of rules that governed society, but it was neither based on an internal, shared morality nor was it value neutral.
Rather, law was practiced and used by judges to shape society.
Oliver Wendell Holmes Jr. (1841-1935)
Judge on the United States Supreme Court and leader in early legal realism.
He was a follower of William James’s pragmatism and believed that in order to understand what is law, focus needed to be placed on those who actually experience, and decide on, law. Holmes believed that law could be used to contain and eradicate social problems for the benefit of society
Legal realists believe law is based not on logic, but on extra-legal factors of experience.
Roscoe Pound (1870-1964)
Roscoe Pound was an American legal scholar and is credited with being the father of “sociological jurisprudence.”
Pound believed that law could be used to advance society by using empirical, pragmatic science together with law to solve real problems.
Pound believed in the progressive narrative of law, that if law was used “correctly,” it would bring people and society toward social equilibrium.
Karl Llewellynn (1893-1962)
Karl Llewellyn was a student of Pound’s.
For Llewellyn, law was what and how judges decided and interpreted law. There was no single objective, deductible truth of law.
Llewellyn was interested in how law was related to applied psychology; he observed that judges applied intuition in their decision-making much more than objective reasoning.
Law’s task, according to Llewellyn, was to regulate conflict and regulate institutions of governance while allocating authority, so that society could be organized. This was a pragmatic view of law that recognized law as being a tool for regulating the complexity of human processes.
For him, there was no independent, objective truth.
What is law for legal realists?
Law exists because of underlying social, psychological, and cultural forces. Law is specialized form of social control.