Legal R/realism and Jurisprudence: Ten Theses

doi:10.1017/CBO9781107762336.007

6 - Legal R/realism and Jurisprudence: Ten Theses

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

William Twining: 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

INTRODUCTION

At Oxford, Salmond on Torts had been my favorite textbook (Salmond 1953). It was a conventional, lucid, expository work. Shortly after I had graduated in 1955, a solicitor specializing in personal injuries told me to forget what I had learned in the books because nearly all of his cases were settled out of court with an insurance company or the Motor Insurers’ Bureau involved. Anyway, he said, the system needed drastic reform. I suffered culture shock. So I began to wonder: how could one understand the law relating to personal injuries if one knows nothing about insurance, settlement, the damages lottery, and alternatives to the common law action for negligence? I felt misled, let down, even betrayed by Salmond and my teachers. This is a common complaint by students in most modern legal systems. Of course, I was naïve, for no one in Oxford had claimed that what they were offering was in any way realistic. Brian Leiter cites a colleague as saying: “Anyone teaching constitutional law who discusses only the doctrine is guilty of educational malpractice” (Leiter 2003, citing Powe 2001). That was how I felt about Torts. But the context in England was different. When I complained, I was met with standard, complacent answers:

“We do not claim that we are preparing you for practice.”

“You will learn about such matters when you study procedure.” (This was untrue; the bar exams were just as doctrinal.)

“Be realistic, you need to mug up Salmond to pass both degree and professional examinations.”

“Such pedestrian matters are just common sense.”

And, more convincingly:

“Studying the law in action presupposes that you have a clear idea about what is in action. So your practitioner friend was wrong, you need to study the books before getting involved in the action.”

The purpose of this paper is to restate some basic points about Legal R/realism as an aspect of Jurisprudence. Most of the general theses should be familiar and, I hope, acceptable to most sociolegal scholars, but a few points may appear to be provocative.

Classical American Legal Realism (ALR) reacted against an ill-defined “formalism” in academic law in the period before World War II.

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Type: Chapter
Information: The New Legal Realism
Translating Law-and-Society for Today's Legal Practice
, pp. 121 - 146

DOI: https://doi.org/10.1017/CBO9781107762336.007 [Opens in a new window]

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Print publication year: 2016

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References

American Academy of Arts and Sciences. 2013. The Heart of the Matter: Report of the Commission on Humanities and Social Sciences. Cambridge, MA: American Academy of Arts and Sciences. http://www.amacad.org.

Atiyah, Patrick S. (1970) 2013. Accidents, Compensation and the Law, edition (with Cane, Peter). Cambridge, UK: Cambridge University Press.

Atiyah, Patrick S. 1997. The Damages Lottery. Oxford: Hart Publishing.

Bentham, Jeremy. (1780) 2011. “Place and Time,” edited by Schofield, Philip and Engelmann, Stephen. In Selected Writings: Jeremy Bentham, edited by Engelmann, Stephen G., 152–219. New Haven: Yale University Press.

Berlin, Isaiah. 1953. The Hedgehog and the Fox: An Essay on Tolstoy's View of History. London: Weidenfeld and Nicolson.

Black, Donald. 1976. The Behavior of Law. London: Academic Press.

Black, Donald. 1995. “The Epistemology of Pure Sociology.” Law and Social Inquiry 20: 829–870.CrossRef Google Scholar

Black, Nick. 2001. “Evidence Based Policy: Proceed with Care.” British Medical Journal 323: 275–279.CrossRef Google Scholar

British Academy. 2004. “That Full Complement of Riches”: The Contributions of the Arts, Humanities, and Social Sciences to the Nation's Wealth. Langford Report. London: British Academy.

Cartwright, Nancy, and Stegenga, Jacob. 2011. “A Theory for Evidence-Based Policy.” In Evidence, Inference and Enquiry, edited by Dawid, Philip, Twining, William, and Vasilaki, Mimi, 291–322. Oxford: Oxford University Press.

Commission on Humanities and Social Sciences. 2013. The Heart of the Matter. Cambridge, MA: American Academy of Arts and Sciences. http://www.amacad.org.

Cook, Walter Wheeler. 1927. “Scientific Method and the Law.” American Bar Association Journal 13: 303–309.Google Scholar

Dagan, Hanoch. 2013a. “Law as an Academic Discipline.” Social Science Research Network. http://papers.ssrn.com/sol3/papers

Dagan, Hanoch. 2013b. Reconstructing American Legal Realism and Rethinking Private Law Theory. New York: Oxford University Press.

Davis, Kevin E., Kingsbury, Benedict, and Merry, Sally Engle. 2012. “Introduction: Governance by Indicators.” In Governance by Indicators: Global Power through Quantification and Rankings, edited by Davis, Kevin, Fisher, Angelina, Kingsbury, Benedict, and Merry, Sally Engle, 3–28. Oxford: Oxford University Press.

de Been, Wouter. 2008. Legal Realism Regained: Saving Realism from Critical Acclaim. Stanford: Stanford University Press.

Del Mar, Maksymilian, and Twining, William, eds. 2015. Legal Fictions in Theory and Practice. Heidelberg: Springer.

Dickson, Julie. 2012. “The Idea of a Legal System: Between the Real and the Ideal.” In MacCormick's Scotland, edited by Walker, Neil, 145–162. Edinburgh: Edinburgh University Press.

Dresch, Paul, and Skoda, Hannah, eds. 2012. Legalism: Anthropology and History. Oxford: Oxford University Press.

du Marais, Bertrand, ed. 2006. Des indicateurs pour mesurer le droit? Les limites méthodologiques des rapports Doing Business (La documentation Française).

Dworkin, Ronald. 1977. Taking Rights Seriously. London: Duckworth.

Dworkin, Ronald. 1994. Life's Dominion. New York: Vintage.

Dworkin, Ronald. 2006a. “Hart and the Concepts of Law.” Harvard Law Review Forum: 95–104.

Dworkin, Ronald. 2006b. Justice in Robes. Cambridge: Harvard University Press.

Dworkin, Ronald. 2011. Justice for Hedgehogs. Cambridge: Harvard University Press.

Engelmann, Stephen G., ed. 2011. Jeremy Bentham: Selected Writings. New Haven: Yale University Press.

Floyd, Jonathan, and Stears, Marc, eds. 2011. Political Theory Versus History?Cambridge: Cambridge University Press.

Frank, Jerome. 1930. Law and the Modern Mind. New York: Brentano's.

Frank, Jerome. (1949) 1973. Courts on Trial: Myth and Reality in American Justice. Princeton: Princeton University Press.

Galligan, Denis J. 2007. Law in Modern Society. Oxford: Oxford University Press.

Gardner, John. 2012. Law as a Leap of Faith. Oxford: Oxford University Press.

Garth, Bryant G. 2006. “Introduction: Taking New Legal Realism to Transnational Issues and Institutions.” Law & Social Inquiry 31(4): 939–945.Google Scholar

Genn, Hazel, Partington, Martin, and Wheeler, Sally. 2006. Law in the Real World: Improving Our Understanding of How Law Works. London: Nuffield Foundation (The Genn Report).

Geuss, Raymond. 2001. History and Illusion in Politics. Cambridge: Cambridge University Press.

Glenn, H. Patrick. 2007. Legal Traditions of the World: Sustainable Diversity in Law, edition. Oxford: Oxford University Press.

Griffiths, John. 2003. “The Social Working of Legal Rules.” Journal of Legal Pluralism and Unofficial Law 48: 1–84.CrossRef Google Scholar

Haack, Susan. 1998. Manifesto of a Passionate Moderate. Chicago: University of Chicago Press.

Hall, Edward. 2013. “Political Realism and Fact-Sensitivity.” Res Publica 19(2): 173–181.Google Scholar

Halpin, Andrew. 2004. Definition in Criminal Law. Oxford: Hart Publishing.

Halpin, Andrew. 2006. “The Methodology of Jurisprudence: Thirty Years off the Point.” Canadian Journal of Law and Jurisprudence 19: 67–105.CrossRef Google Scholar

Halpin, Andrew. 2009. “Methodology and the Articulation of Insight: Some Lessons from MacCormick's Institutions of Law.” In Law as Institutional Normative Order, edited by Del Mar, Maksymilian and Bankowski, Zenon, 145–160. Farnham: Ashgate.

Hart, Herbert L.A. (1961) 1994. The Concept of Law (edn. including Postscript). Oxford: Oxford University Press.

Hart, Herbert L.A. 1983. “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream.” In Essays in Jurisprudence and Philosophy, by Hart, Herbert L.A., 123–144. Oxford: Oxford University Press.

Headland, Thomas, Pike, Kenneth, and Harris, Marvin, eds. 1990. Emics and Etics: The Insider/Outsider Debate. London: Sage.

Hurst, James Willard. 1964. Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin. Cambridge, MA: Harvard University Press.

Jolowicz, John Anthony, ed. 1970. The Division and Classification of the Law: Papers Submitted to the Joint Seminar of the Society of Public Teachers of Law and the Law Commissions of England and Scotland. London: Butterworths.

Kritsiotis, Dino, and McCrudden, Christopher, eds. 2012. “Symposium: Brian Simpson's Reflections on ‘The Concept of Law.’” Transnational Legal Theory 3(2).Google Scholar

Lacey, Nicola. 2006. “Analytical Jurisprudence Versus Descriptive Sociology Revisited.” Texas Law Review 88: 945–982.Google Scholar

Lacey, Nicola. 2013. “Institutionalising Responsibility: Implications for Jurisprudence.” Jurisprudence 4(1): 1–19.Google Scholar

Legal Education and Training Review. 2013. Setting Standards: The Future of Legal Services Education and Training Regulation in England and Wales. London. http://letr.org.uk/the-report.

Leiter, Brian. 2003. “What Is Legal Realism?” Leiter Reports: A Philosophy Blog, November 13, http://leiterreports.typepad.com/blog/2003/11/what_is_legal_r.html.

Leiter, Brian. 2007. Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford: Oxford University Press.

Lipton, Peter. 2001. “The History of Empiricism.” In International Encyclopedia of Social and Behavioral Sciences, edited by Smelser, Neil J. and Baltes, Paul B., 4481–4485. Oxford: Elsevier.

Llewellyn, Karl N. (1930) 2008. The Bramble Bush: The Classic Lectures on the Law and Law School (With a New Introduction and Notes by Sheppard, Steve). New York: Oxford University Press.

Llewellyn, Karl N. 1941. “The Theory of Legal Science.” North Carolina Law Review 20: 1–23.Google Scholar

Llewellyn, Karl N. 1942–1943. “Babel versus Teamwork”, unpublished manuscript. Karl Llewellyn Papers, University of Chicago (KLP. B., III, 37d).

Llewellyn, Karl N. 1952. “The Adventures of Rollo: Opening Talk in Elements Class.” University of Chicago- The Law School Record 2(1): 23.Google Scholar

Llewellyn, Karl N. 1958. “Law in our Society”: teaching materials, unpublished. Karl Llewellyn Papers, University of Chicago.

Llewellyn, Karl N. 1960. The Common Law Tradition: Deciding Appeals. Boston: Little, Brown.

Llewellyn, Karl N. 2011. The Theory of Rules. Edited by Schauer, Frederick. Chicago: University of Chicago Press.

Llewellyn, Karl N., and Hoebel, E. Adamson. 1941. The Cheyenne Way. Norman: University of Oklahoma Press.

Macaulay, Stewart. 2005. “The New Versus the Old Legal Realism: ‘Things Ain't What They Used To Be.’” Wisconsin Law Review 2005(2): 365–403.Google Scholar

Macaulay, Stewart, and Mertz, Elizabeth. 2013. “New Legal Realism and the Empirical Turn in Law.” In Law and Social Theory, edition, edited by Banakar, Reza and Travers, Max, 195–210. Oxford and Portland: Hart Publishing.

MacCormick, Neil. 2007. Institutions of Law: An Essay in Legal Theory. Oxford: Oxford University Press.

Merry, Sally Engle. 2006. “New Legal Realism and the Ethnography of Transnational Law.” Law & Social Inquiry 31(4): 975–995.CrossRef Google Scholar

Merryman, John. 1954. “The Authority of Authority: What the California Supreme Court Cited in 1950.” Stanford Law Review 6: 613–673.CrossRef Google Scholar

Mertz, Elizabeth. 2016. “New Legal Realism: Law and Social Science in the New Millennium.” In The New Legal Realism: Translating Law-and -Society for Today's Legal Practice, edited by Mertz, Elizabeth, Macaulay, Stewart, and Mitchell, Thomas W., 1–25. New York: Cambridge University Press.

Moore, Underhill, and Callahan, Charles C.. 1943. “Law and Learning Theory: A Study in Legal Control.” Yale Law Journal 53: 1–136.CrossRef Google Scholar

Nelken, David. 1981. “The ‘Gap Problem’ in the Sociology of Law: A Theoretical Overview.” Windsor Yearbook of Access to Justice 1: 35–61.Google Scholar

“New Legal Realism Conversations: An Empirical Law and Society Blog.” Accessed January 31, 2014. http://newlegalrealism.wordpress.com/.

Nussbaum, Martha. 2010. Not For Profit: Why Democracy Needs the Humanities. Princeton: Princeton University Press.

Osborne, Henry, ed. 1970. The Oxford Companion to Art. Oxford: Clarendon Press.

Powe, Lucas A. 2001. The Warren Court and American Politics. Cambridge, MA: Harvard University Press.

Power, Michael. 1997. The Audit Society: Rituals of Verification. Oxford: Clarendon Press.

Quinn, Michael. 2015. “Fuller on Legal Fictions: A Benthamic Perspective.” In Legal Fictions in Theory and Practice, edited by Del Mar, Maksymilian and Twining, William, 55–82. Heidelburg: Springer.

Raz, Joseph. 1990. Practical Reason and Norms. Princeton: Princeton University Press.

Raz, Joseph. 1992. The Concept of a Legal System, edition. Oxford: Oxford University Press.

Raz, Joseph. 2005. “Can There Be a Theory of Law?” In Blackwell Guide to Philosophy of Law and Legal Theory, edited by Golding, Martin P. and Edmundson, William A., 324–342. Malden, MA: Blackwell Publishing.

Raz, Joseph. 2009. The Authority of Law, edition. Oxford: Oxford University Press.

Restrepo-Ameriles, David. 2014. “The Mathematical Turn: L'indicateur Rule of Law dans la politique de developpment de la Banque Mondial.” In Gouverner Par Les Normes Et Les Indicateurs, edited by Frydman, Benoit and Waeyenberge, Arnaud Van, 193–234. Brussells: Bruylant.

Roberts, Paul, and Zuckerman, Adrian. 2010. Criminal Evidence, edition. Oxford: Oxford University Press.

Rorty, Richard. 1991. Objectivity, Relativism and Truth. Cambridge: Cambridge University Press.

Russell, Jill, and Greenhalgh, Trisha. 2011. “Rhetoric, Evidence and Policy-Making: A Case Study of Priority Setting in Primary Care.” In Evidence, Inference and Enquiry, edited by Dawid, Philip, Twining, William, and Vasilaki, Mimi, 267–290. Oxford: Oxford University Press.

Salmond, Sir John. (1953) 1973. The Law of Torts, edition (16th edn.). Edited by Heuston, R.F.V.. London: Sweet and Maxwell.

Schauer, Frederick. 1991. Playing by the Rules. Oxford: Oxford University Press.

Schauer, Frederick. 2009. “Institutions and the Concept of Law: A Reply to Ronald Dworkin (with some help from Neil MacCormick).” In Law as Institutional Normative Order, edited by Del Mar, Maksymilian and Bankowski, Zenon, 35–44. Farnham: Ashgate.

Schauer, Frederick., ed. 2011. Karl Llewellyn: The Theory of Rules. Chicago: University of Chicago Press.

Schauer, Frederick. 2012. “Foreword”. In Karl Llewellyn and the Realist Movement, Twining, William, ix–xxiv. New York: Cambridge University Press.

Schlegel, John H. 1995. American Legal Realism and Empirical Social Science. Chapel Hill: University of North Carolina Press.

Schofield, Philip. 2006. Utility and Democracy: The Political Thought of Jeremy Bentham. Oxford: Oxford University Press.

Sen, Amartya. 2004. “Elements of a Theory of Human Rights.” Philosophy and Public Affairs 32: 315–356.Google Scholar

Sen, Amartya. 2009. The Idea of Justice. Cambridge, MA: Harvard University Press.

Shapiro, Scott. 2011. Legality. Cambridge, MA: Harvard University Press.

Simpson, A. W. Brian. 1984. Cannibalism and the Common Law. Chicago: University of Chicago Press.

Simpson, A. W. Brian. 1995. Leading Cases in the Common Law. Oxford: Clarendon Press.

Simpson, A. W. Brian. 2011. Reflections on “The Concept of Law.”Oxford: Oxford University Press.

Solesbury, William. 2001. “Evidence Based Policy: Whence It Came and Where It's Going.” ESRC UK Centre for Evidence Based Policy and Practice Working Paper #1, available at http://www.kcl.ac.uk/sspp/departments/politicaleconomy/research/cep/pubs/papers/paper-01.aspx. Accessed Feb. 18, 2015.

Starr, June, and Collier, Jane F., eds. 1989. History and Power in the Study of Law. Ithaca, NY: Cornell University Press.

Stone, Julius. 1956. The Province and Function of Law. Cambridge, MA: Harvard University Press.

Suchman, Mark, and Mertz, Elizabeth. 2010. “Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism”. Annual Review of Law and Social Science 6(1): 555–576.CrossRef Google Scholar

Tamanaha, Brian Z. 1997. Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. Oxford: Oxford University Press.

Tamanaha, Brian Z. 2001. A General Jurisprudence of Law and Society. Oxford: Oxford University Press.

Tamanaha, Brian Z. 2013. “The Third Pillar of Jurisprudence: Social Legal Theory.” Social Science Research Network. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2256622.

Twining, William. 2000. Globalisation and Legal Theory. London: Butterworth and Evanston: Northwestern University Press.

Twining, William. 2002. The Great Juristic Bazaar: Jurists’ Texts and Lawyers’ Stories. Aldershot: Ashgate.

Twining, William. 2005. “Have Concepts, Will Travel.” International Journal of Law in Context 1: 5–40.CrossRef Google Scholar

Twining, William. 2006. Rethinking Evidence: Exploratory Essays, edition. Cambridge: Cambridge University Press.

Twining, William. 2009. General Jurisprudence: Understanding Law from a Global Perspective. Cambridge: Cambridge University Press.

Twining, William. 2011a. “Normative and Legal Pluralism.” Duke Journal of Comparative and International Law Journal 20: 473–517.Google Scholar

Twining, William. 2011b. Globalisation and Legal Scholarship (Montesquieu Lectures). Nijmegen: Wolf.

Twining, William. (1973/1985) 2012a. Karl Llewellyn and The Realist Movement, (with afterword). New York: Cambridge University Press.

Twining, William. (1973/1985) 2012b. “Afterword.” In Karl Llewellyn and the Realist Movement, edition (with afterword), edited by Twining, William, 388–443. New York: Cambridge University Press.

Twining, William. 2012c. “What Is the Point of Legal Archeology?” Transnational Legal Theory 3(2): 166–172.Google Scholar

Twining, William, and Miers, David. (1973) 2010. How to Do Things with Rules, edition. Cambridge: Cambridge University Press.

Walker, Neil, ed. 2012. MacCormick's Scotland. Edinburgh: Edinburgh University Press.

Williams, Bernard. 1985. Ethics and the Limits of Philosophy. London: Fontana.

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