American Legal Realism Research Articles

Law without Lawyers, Lawyers without Law

Luca Siliquini-Cinelli thinks that there can be law without lawyers. American legal realism thinks that there can be lawyers without law. The truth is perhaps somewhere in between. Law forces individuals to fit into categorical rules. Focusing on its Procrusteanism leads one to imagine the possibility of law without lawyers: law is a set of rules, albeit a complex set, that can be applied consistently to a whole array of situations. But law can also take on shifting shapes and forms to suit the circumstances. Focusing on its Proteanism leads one to imagine the possibility of lawyers without law: law is just whatever lawyers make it out to be. Perhaps law is somewhere between Procrustean and Protean. Therefore, Siliquini-Cinelli and American legal realism may, each, be half-right. Keywords: legal realism; law; lawyers; logic; knowledge; experience; Holmes.

The Judiciary in the Thought of Oliveira Vianna

Between 1920 and 1930, Oliveira Vianna theoretically formulated a new model of the judiciary, aiming for its integration into a corporatist-authoritarian power project that sought to reorganize society and the state. Vianna envisioned a robust judiciary, notwithstanding the dominance of the executive power and administrative agencies. This strength would emerge from the use of the "legal technique" of American legal realism. Moreover, due to its centralization in the Union, judges were expected to play a role in restraining deviations of legislative power and local authorities. The result was an institutional arrangement under tension, where the judiciary served the organization of the Nation but held a position subordinate to that of the head of the national executive power. These tensions reveal legal dilemmas in both authoritarian and democratic contexts.

Understanding Russian Legal Realism in the Modern Science

This paper is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in particular. Current approaches to the analysis, reconstruction and criticism of legal realism are being developed by leading scholars that indicates the importance of the realistic paradigm in law. The approaches to understanding Russian legal realism considered in the paper especially in the context of classic American and Scandinavian realistic movements allow analyzing the trends in the further development of the theory and practice of legal realism in Russia. The subject of the study is the approaches of modern scholars to the phenomenon of Russian legal realism. The purpose of the work is to clarify the reasonableness of the identification of the Russian realistic movement in law. The novelty of the topic consists of the analysis of works that have appeared in the last decade on the subject of Russian legal realism including a comparison of the principal opinions available in science about the representatives of this movement and the prospects for its recognition as a “classic” realistic movement along with American and Scandinavian legal realism. Descriptive, formal logical and comparative legal methods were used as the key research methods including the analysis of the works of the authors of the English-language collective monograph “Russian Legal Realism” (2018, Springer) and the comparison of American, Scandinavian and Russian realistic movements in jurisprudence. The main conclusions of the paper are the necessity for further research of Russian legal thought of the late 19th–early 20th centuries and its development in the 20th–21st centuries in order to distinguish more clearly the Russian version of legal realism among diverse psychological and sociological theories as well as to compare presumably realistic ideas in Russia with the already acknowledged classic movements of legal realism in the USA and Scandinavia. The significance of such a comparative analysis for justification the existence of a specific Russian movement of legal realism is emphasized. Despite many methodological difficulties an understanding of Russian legal realism is provided that distinguishes the works of its predecessors at the end of the 19th century and supporters (theorists and practitioners) in the 20th century: the proposed understanding also actualizes their significant influence on Russian legal realities in the 21st century.

About the realism of legal realism

The article discusses the problems of clarifying the nature, content and orientation of legal realism, which has become a popular modern approach to understanding law, primarily related to the history of legal thought in the United States, as well as the works of some Scandinavian authors of the twentieth century. The article demonstrates that legal realism in the interpretation of American and Scandinavian authors often reproduces realism in a peculiar way as a technique of epistemological and ontological nature. As a kind of original paradigm for understanding issues of legal practice and overcoming gaps in legal regulation, American legal realism can be an interesting object of study, however, as a theoretical concept or methodological technique, it has many vulnerabilities, which are especially evident when properly reconstructing the history of legal thought. The novelty of the research lies in highlighting the problems of legal realism from a critical position, both in terms of its name and semantic content. The study draws parallels between the ideas of Marxism about the prospect of the extinction of over-the-top phenomena, such as law, and the slogans of American legal realists about the need to fight theory and conceptualism. New directions and perspectives of the analysis of the history of legal thought of the twentieth century are outlined, which make it possible to more accurately identify the actual scientific and cognitive potential of approaches claiming a realistic understanding of law. It is shown that the requirement of reasonableness and overcoming excessive dogmatism are a cross-cutting theme for the history of legal thought.

American Legal Realism and the Revitalization of Literary Realist History

American Legal Realism and the Revitalization of Literary Realist History

How Hermann Kantorowicz Changed His Mind About America and Its Law, 1927–34

AbstractHermann Kantorowicz crossed the Atlantic twice: to take up a visiting professorship at Columbia Law School in the summer of 1927, and to find refuge at New York's University in Exile in 1933/1934. Between his first and second stay, the German-Jewish émigré changed his mind about America and its law fundamentally. While he had—patronizingly—praised his US colleagues for “catch[ing] up… intellectually” in 1927, he accused them of “destroy[ing] the Law itself” in 1934. Reconstructing Kantorowicz's change of heart, my article uncovers just how open the transatlantic 1930s still were in jurisprudential matters. As leader of the so-called “free law” movement, Kantorowicz had sparked a turn to “life” in German legal science in the years before World War I. Throughout the 1920s, he had then watched contentedly, as American “realist” scholars drew on free law ideas for their own critical projects. By 1934, however, Kantorowicz could not help but notice parallels between New Deal and Nazi law. To his mind, both Roosevelt's and Hitler's jurists had started turning his moderate free law ideas into a radical—and dangerous—legal nihilism: in designating law as life's only source, they shunned scientific legal methods. In light of these concerns, my article excavates life-law's delicate suspension between peril and potential. My sources reveal a striking, triangular relationship between German free law, American legal realism, and Nazi life-jurisprudence.

Making Law Possible

Making Law Possible

The Core Claims of American Legal Realism and Its Implications

The Core Claims of American Legal Realism and Its Implications

On Legal Realism in a Realistic Manner. Monograph Review. Tonkov EN, Tonkov DE. Legal Realism (St. Petersburg: Aleteya Publ.; 2022. 464 p.)

The review presents the most important provisions of the monograph by E.N. Tonkov and D.E. Tonkov under the title «Legal Realism» (St. Petersburg: Aleteya Publ., 2022. 464 p.) and their assessment. The reviewed work is interesting not only for its in-depth historical coverage of the origin and evolution of legal realism in the USA, Scandinavia and Russia, but also for the analysis of its current state. Legal realism, according to the authors, is one of the most relevant directions for post-modern jurisprudence in the scientific thought of France, Italy, the USA and other countries, including post-Soviet Russia. The relevance of legal realism is justified not only by the search for a «third way» in the legal understanding (between legal positivism and the concept of natural law), but also by bridging the gap between the dogmatic theory of law and legal practice. The first section contains a detailed description and analysis of the main provisions (ideas) of the founders of legal realism in the USA — K. Llewellyn and D. Frank (including from the positions of their modern interpreters), as well as the conceptualization of this trend from the standpoint of today. The distinctive features of the movement (but not the school, which the authors rightly insist on) of legal realism are given. Of particular interest is the analysis and conceptualization of the problem of legal certainty and judicial activism from the standpoint of American legal realists, presented on the pages of the monograph.The second section of the monograph analyzes the main provisions of Scandinavian legal realism — the legacy of A. Hagerstrom, V. Lundstedt, K. Olivecrona and A. Ross. Perhaps, the content of the third section of the monograph devoted to Russian legal realism will arouse the greatest interest among many readers. The study of the relatively recent historical past of our country is extremely important for a lawyer, according to the authors, because the current state of law and order is largely determined by this past. The analysis of the doctrine as a source of law, the multiplicity of legal systems, including individual regulatory systems and the inevitability of conflicts between them, is one of the best places in the reviewed monograph. The fourth section of the monograph is devoted to the analysis of modern postclassical concepts of legal realism presented by B. Leiter, B. Tamanakhi, M. Troper, B. Bix and others, which will undoubtedly arouse considerable interest in the reader, as well as a wonderful monograph as a whole.

Realism and Positivism

ABSTRACT Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. Problems arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms.

Legal Realism and ‘Working’ Rules

AbstractThe American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

The Dual State in the United States: The Case of Lynching and Legal Lynchings

Abstract This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.

Scandinavian Legal Realism in Two Criminal Convictions of The Same Thing

Human life is regulated and will never be separated from the provisions of binding regulations. Binding rules or norms in human life have the purpose of creating order, justice, and public welfare. The paradigm of legal positivism has always relied on the logic and validation of the ruler which makes people think that the ruler is the only law. This is strongly criticized by legal realists. The interesting thing about legal realism is the view that law must depart from the study of facts. American legal realism states that a judge decides something based on his personal preferences, and then makes a legal analysis to justify the expected outcome. This is different from legal realism in Scandinavia, which is based on logical positivism that developed in the modern era. Legal realism in Scandinavia intends to make legal science more scientific. Criticisms of legal realism include: legal realism presents the law only as a tool for resolving disputes on a case by case basis, there is no need for legal certainty because the approach is very casuistic so that judge’s understanding of cases can vary widely. Using legal studies approach, be expected that it can provide an overview of the problems that occur related to Scandinavian Legal Realism in the adultery case of SS with minors which is contrary to The Law of Number 35 of 2014 concerning Child Protection in conjunction with Article 65 Paragraph 1 of the Criminal Code. The judge's authority over the case is to give a verdict related to the SS case in accordance with positive law, the facts that actually happened, and the truth of the case that has been observed by the people involved and legal experts with the aim of maintaining order and protecting the community so that they always do the right thing.

THE DOCTRINE OF PRECEDENT: AN ANALYSIS FROM SOCIOLOGICAL SCHOOL OF JURISPRUDENCE & AMERICAN REALISM

“One precedent creates another and they soon accumulate and constitute law. What yesterday was a fact, today is a doctrine.”JuniusFrom time immemorial it has been observed that with the development of people, law has evolved to maintain peace and order in the society. It is where law is considered to be superlative, the anticipation and debate about the supremacy of the law formulating body is never ending. Thinkers and scholars from time to time have been promoting different ideologies to figure out the body which formulates law and the premise on which the law is operational. The overlapping between the thoughts of advocates of sociological school and American Legal Realism has been prominent as both the ideological grounds support the view that law finds its source in the society itself. The former argues that the addressing of the issues in the society is the key to formulate of law while the latter supports the view that law is formulated within the courtrooms by giving primary importance to the ‘judge made law’. The focus of study in this research paper will be upon the understanding of precedents and the interface between sociological school of law and the American legal realism and the impact of precedents in modern legal societies. The research also aims to find out the role of the precedents in formulation of principles, doctrines and how does it contribute to law making.

American Legal Realism Today: An Idiosyncratic Restatement

American Legal Realism Today: An Idiosyncratic Restatement

Alf Ross's Critique of American Legal Realism - and a Naturalistic Critique of Ross

Alf Ross's Critique of American Legal Realism - and a Naturalistic Critique of Ross

V.S. Gruzdev. Realism in jurisprudence: theoretical, methodological and historical aspects

In the review of V.S. Gruzdev’s monograph “Realism in jurisprudence: theoretical, methodological and historical aspects” it is noted that the research of the author of the reviewed work seems to be in demand by modern philosophy and jurisprudence. The purpose of this monograph is to study on the basis of original texts the main directions of legal realism as a paradigm of legal understanding in the context of its genesis, typology, main interpretations and directions of development, to show its evolution and interpretation. To achieve it, the author solves a number of theoretical, methodological and methodical tasks: generalizes approaches in domestic and foreign literature to the interpretation and justification of realism as a theoretical and methodological attitude and method of cognition of law; identifies the main directions of evolution and typology of conceptual legal realism; explores the concept of activity as a semantic characteristic of legal practice; analyzes the most significant trends in the evolution of legal realism in the history of Western European and Scandinavian legal thought; explores the specifics of American legal realism; determines the role of realism among the dominants in the history of Russian legal thought. The issues raised in the monograph and their presentation are of interest for further scientific research in the field of theory, Philosophy and Sociology of Law, history of political and legal doctrines, history and methodology of legal science.

The New Formalism in Private Law

Abstract: Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law. However, New Private Law scholars have yet to articulate a scholarly methodology that defines and differentiates our work. I argue that the New Private Law is rooted in a shared—if implicit—new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development.

Twining’s Tower and the Challenges of Making Law a Humanistic Discipline

This article provides a survey of the life and scholarship of William Twining, focusing largely on his contribution to the broadening of legal education and scholarship. Part I reviews his background, personality and education, then explores the significance of Africa and his anti-colonialism, the inspiration of American legal realism, his teaching in Africa, Belfast, Warwick and UCL, his law reform efforts and his scholarly output. Part II examines his intellectual hallmarks and his struggle to recast law as a humanistic discipline. Part III considers the current efficacy of the notion of law as a humanistic discipline with law schools as purveyors of humanistic education. 
 Keywords: William Twining; legal education; legal biography; intellectual history; colonialism; postcolonialism.

Детская иллюзия правовой определенности в психологии права Джерома Фрэнка

Publication of the book “Law and the Modern Mind” in 1930 by J. Frank became one of the starting points in the history of American legal realism. The problem of legal certainty is central in the work of J. Frank. For him the vital question was why lawyers, judges and general public “believe in” and “rely on” the myth of certainty and exactness of the legal rules. One of the reasons J. Frank finds in our childish way of thinking that is tend to fixed, stable and immutable set of mechanical rules. According to the works of child psychologists, J. Frank elaborated and described the childish illusion of world’s clarity, the important element of which is the connection of the child with his father, and its counterpart in adult’s desire for legal certainty.