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Encyclopedia > Legal Realism

Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections. Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). ... Scandinavia is a historical and geographical region centered on the Scandinavian Peninsula in Northern Europe and includes the three kingdoms of Denmark, Norway and Sweden. ...


It has become quite common today to identify Justice Oliver Wendell Holmes as the main precursor of American Legal Realism (other influences include Roscoe Pound, Justice Benjamin Cardozo, and Wesley Hohfeld). The chief inspiration for Scandinavian Legal Realism many consider to be the works of Axel Hägerström. Oliver Wendell Holmes, Jr. ... Roscoe Pound (1870 - 1964) was a distinguished American legal scholar and educator. ... Benjamin Nathan Cardozo (May 24, 1870–July 9, 1938) is considered one of the greatest American jurists, and is remembered not only for his landmark decisions on negligence but also his modesty, philosophy and writing style, which is considered remarkable for its prose and vividness. ... This article does not cite any references or sources. ... Axel Hägerström Axel Anders Theodor Hägerström (September 6, 1868 – July 7, 1939) was a Swedish philosopher and jurisprude. ...


The most famous representatives of American Legal Realism were Karl Llewellyn, Felix S. Cohen, Jerome Frank, Robert Lee Hale, Herman Oliphant, Thurman Arnold, Hessel Yntema, Max Radin, William Underhill Moore, Leon Green, and Fred Rodell. The most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt. Notably, Karl Llewellyn was a major figure in the debate and teaching of legal realism while a professor at Columbia Law School. No single set of beliefs was shared by all legal realists, but many of the realists shared one or more of the following ideas: This article or section does not cite its references or sources. ... Felix Solomon Cohen (1907-1953) was a lawyer and legal scholar who developed an interest and expertise in law concerning natural resources, statehood and economic development for American territories, Indian affairs, and immigration and minority problems. ... Jerome Frank (September 10, 1889 - January 13, 1957) was an outstanding legal philosopher and played a leading role in legal realism movement. ... Herman Oliphant (1884 – 1939) was a professor of law at the University of Chicago, Columbia University, and Johns Hopkins University. ... Thurman Arnold (June 2, 1891 - November 7, 1969) Professional Life Thurman Arnold was an idiosyncratic Washington Lawyer best known for his trust-busting campaign as Assistant Attorney General in charge of the Antitrust Division in Franklin Delano Roosevelts Department of Justice. ... Leon Green (born in Louisiana, March 31,1888) was the long-tenured dean of Northwestern University School of Law (1929 – 1947) and professor at Yale Law School (1926 – 1929) and the University of Texas School of Law (1915 – 1918, 1920 – 1926, and 1947 – 1977). ... Fred Rodell (1907-1980) was an American law professor most famous for his critiques of the U.S. legal profession. ... Alf Niels Christian Ross (b. ... Karl Olivecrona (1897 – 1980) was a Swedish lawyer and pupil of Axel Hägerström, the spiritual father of Scandinavian legal realism. ... Anders Vilhelm Lundstedt (September 11th, 1882 – August 20th, 1955) was a Swedish legal philosopher, particularly known as a proponent of Scandinavian Legal Realism, having been influenced by his compatriot Axel Hägerström. ... This article or section does not cite its references or sources. ... Columbia Law School, located in the New York City borough of Manhattan, is one of the professional schools of Columbia University, a member of the Ivy League, and one of the leading law schools in the United States. ...

  • Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast.
  • Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropological approaches to the study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of this tendency.
  • Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.

The heyday of the legal realist movement came in the 1920s through the early 1940s. Following the end of World War II, as its leading figures retired or became less active, legal realism gradually started to fade. The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is no. ...


Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics (scholars such as Richard Posner and Richard Epstein at the University of Chicago). In addition, legal realism eventually led to the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences. Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. ... Duncan Kennedy (*1942 in Washington, D.C.) is the Carter Professor of General Jurisprudence at Harvard Law School. ... Roberto Unger is a Brazilian contemporary social theorist and law professor at Harvard Law School. ... The study of feminist legal theory is a school thought based on the common view that laws treatment of women in relation to men has not been equal nor fair. ... This article or section does not adequately cite its references or sources. ... Law and economics, or economic analysis of law, is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics. ... Richard A. Posner Richard Allen Posner (born January 11, 1939 in New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. ... Richard Epstein Richard A. Epstein, born in 1943, is currently the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School. ... The University of Chicago is a private university located principally in the Hyde Park neighborhood of Chicago. ... The Politics series Politics Portal This box:      Political Science is the field concerning the theory and practice of politics and the description and analysis of political systems and political behaviour. ...


Legal Realism emerged as an anti-formalist and empirically oriented response to and rejection of the legal formalism of Dean Langdell and the American Law Institute (ALI), as well as of the "mechanical jurisprudence" or "science of law" with which both became associated. The American Law Institute (ALI) was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. ...


Legal Realists advance two general claims: 1) Law is often indeterminate and that judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question "What is (the) law?" is "Whatever judges or other relevant officials do".


See also

Judicial activism is the tendency of some judges to take a flexible view of their power of judicial interpretation, especially when such judges import subjective reasoning that displaces objective evaluation of applicable law. ... The prediction theory of law was a key component of the Oliver Wendell Holmes jurisprudential philosophy. ...

External links

  • Brian Leiter, American Legal Realism, in The Blackwell Guide to Philosophy of Law and Legal Theory (W. Edmundson & M. Golding, eds., 2003)
  • Michael Steven Green, Legal Realism as Theory of Law, 46 William & Mary Law Review 1915 (2005)
  • Geoffrey MacCormack, Scandinavian Realism 11 Juridical Review (1970)

  Results from FactBites:
 
Legal realism - Wikipedia, the free encyclopedia (498 words)
Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism).
The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
In addition, legal realism eventually lead to the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences.
Jurisprudence - Wex (500 words)
In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.
The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought.
Critical legal studies, feminist jurisprudence, law and economics, utilitarianism, and legal pragmatism are but a few of them.
  More results at FactBites »

 
 

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