Jerome Frank and the Legacy of Legal Realism

Abstract

It is a rather sad fact that jurisprudence, for those who follow the subject, has always been a name-game. Mention a movement positivism, utilitarianism, Scandinavian realism, whatever and, more often than not, certain core representatives of that movement can, as if automatically, be summoned to mind. In Britain, the core representatives of the movement which we call American legal realism are commonly considered to be Karl Llewellyn and Jerome Frank. Llewellyn's work has without doubt made its mark on British legal scholarship.1 To assert the same of Frank, however, would be rather more contentious. From his first formal introduction into British jurisprudence, Frank was characterized as the prime representative of the radical tendency in American legal realism the realist who turned his back on legal rules and declared them to be well nigh valueless.2 This characterization became official, as it were, with the publication of Hart's The Concept of Law in 1961. Distinguishing formalism and realist rule-scepticism, Hart criticizes the rule-sceptics for focusing only on the function of rules in judicial decisions and ignoring those secondary rules which confer judicial and legislative power.3 Hart considered Frank's work to be illustrative of the sceptical tradition in American legal realism,4 though Frank himself distinguished scepticism as to rules and scepticism as to facts, declaring himselfas we shall see to be a factsceptic. An unfortunate consequence of Hart's formalism-scepticism distinction, and his citation of Frank as an exemplary sceptic, I would argue, is that Frank's jurisprudence has come primarily to be conceived as a critical