Legal Realism in Context

doi:10.1017/CBO9781107762336.008

7 - Legal Realism in Context

from Section II - PHILOSOPHY AND METHODS FOR A NEW LEGAL REALISM

Published online by Cambridge University Press: 05 May 2016

Edited by

Stewart Macaulay and

Brian Z. Tamanaha: Affiliation:
Washington University School of Law
Elizabeth Mertz: Affiliation:
American Bar Foundation and University of Wisconsin School of Law
Stewart Macaulay: Affiliation:
University of Wisconsin, Madison
Thomas W. Mitchell: Affiliation:
University of Wisconsin, Madison

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Summary

“We are all realists now,” it is frequently said, yet what legal realism was about remains vigorously debated. When tackling this question, it is common to begin by identifying who counts as legal realists and then identifying what they purportedly believed in. Convention has Oliver Wendell Holmes, Jr., John Chipman Gray, Roscoe Pound, and Benjamin Cardozo as antecedents of realism; core realists typically include Karl Llewellyn, Jerome Frank, Felix S. Cohen, Walter Wheeler Cook, Herman Oliphant, Underhill Moore, Hessel Yntema, Charles Clark, Wesley Sturges, William O. Douglas, Leon Green, Max Radin, Thurman W. Arnold, and Joseph C. Hutcheson. Standard accounts of what they stood for are: the legal realists were anti-formalists. They denied that legal rules determined judicial decisions. They saw law as a means to social ends. They advocated a functional view that urges attention to what law actually does. They promoted the application of social science to law. They were rebellious critics of the legal establishment. They denied the claimed neutrality of law. They were New Dealers. What helps keep the dispute alive is that the figures identified as core realists did not all espouse the same positions on these matters.

In this essay I will argue that there is a better way to understand realism, which decenters the core legal realists and what they purportedly believed in. We should see realism instead as a complex of perspectives that characterized a new age of thinking about law. Because the legal realists were not unique in holding these views, I argue, it is a mistake to think that the key to understanding realism can be found through a close examination of their particular positions, especially since they disagreed amongst themselves a great deal. To establish this I will alternate between two contexts: the narrow context of the Llewellyn-Pound exchange, which first brought attention to “legal realism,” and the broad context of widely expressed realistic views in the generation preceding this exchange.

The diversity of views among the named legal realists is often suppressed by jurists who tell us what legal realism was about, but Karl Llewellyn emphasized this at the beginning, the middle, and the final words of his essay clarifying realism.

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Type: Chapter
Information: The New Legal Realism
Translating Law-and-Society for Today's Legal Practice
, pp. 147 - 168

DOI: https://doi.org/10.1017/CBO9781107762336.008 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

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