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Law Theories - Karl Llewellyn

By Tina10 Jun 10, 2010 2826 Words
Assignment 1
Word count part A: 1647
Word count part B: 673


Jerome Frank is reputed to have said (polemically, intentionally exaggerating) that a court’s decision might turn on what the judge had for breakfast. It is meant to convey the idea that judges decide cases however they personally wish to, or however they feel at the time. Karl Llewellyn, the other key figure in American Legal Realism, would have agreed with this statement[1].

Llewellyn, along with Jerome Frank, challenged the notion of law being determinate, autonomous and apolitical. Under this presumption, Jerome Frank highlighted the psychological aspect of judicial decision making when pointing out that in alliance with human nature, a judge's decision may be influenced by such monotonous occurrences as what they ate for breakfast.

Karl Llewellyn agreed that a judge is able to perpetrate his own personal biases on the outcome of a case. Llewellyn ascertained, when referring to judge
JudgA judge, or arbiter of justice, is a lead official who presides over a court of law, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is like an umpire in a game and... s that, ‘[w]hat these officials do about disputes is, to my mind, the law itself[2].’ In this assessment, Llewellyn’s realist views can be likened to that of Jerome Frank who challenged the notion of legal decisions as always being certain. Llewellyn agreed that law is not always a precise science, but did not agree that judicial decisions are always uncertain[3]. “…there is no single right and accurate way of reading one case, or of reading a bunch of cases[4].”

In support of the aforementioned statement, as an example, Llewellyn offers two plausible structural arrangements in the handing down of a judgment. In the first arrangement, consideration must be made, in that, the case can only maintain authority for that which is required of the opinion to reach the judgment. Anything else can be distinguished or unnecessary. In the second arrangement, the court maintains authority of the rule which forms the basis of judgment. In distinguishable cases, however, it may still be applied indirectly by using statements such as “We there said…” or “That case necessarily decided…” along with the rest of the judgment which does not encompass the rule[5]. Karl Llewellyn's theories on legal realism first outlined in The Bramble Bush, highlighted the importance of determining whether the legal opinions of judges are influenced by factors outside that of the law[6]. “For the long haul, for the large-scale reshaping and growth of doctrine and our legal institutions, … the almost unnoticed changes … [are] more significant than the historic key cases[7].” It was in Llewellyn’s belief that a lawyer should have the ability through training, to be able to put forward a persuasive argument by utilising the facts of a case rather than placing the emphases on the applicable law. In Llewellyn’s opinion, law is gradually returning to the court tradition of the 18th century as being “Precedent” guided and “principle controlled”. This concept is opposed to that of Owen Dixon’s belief which leans towards a more ordered approach[8]. There are no fixed rules of how a principle must be applied in regards to the law. In considering this, it is possible in the same case for a number of judges to all apply the same principle and reach a completely different conclusion. Llewellyn interprets this as not an ‘evasion’ or ‘departure’ from the true construction of the principle, but a sound use, application, continuation and development of precedent. In Llewellyn’s opinion, the freedom in the application of law in the courts is not to be construed as ‘twisting’ precedent, as this concept carries the assumption that there is only one single meaning[9].

‘… the main thing is what officials are going to do. And so to my mind to the main thing is seeing what officials do, do about disputes, or about anything else; and seeing that there is a certain regularity in their doing -- a regularity which makes possible prediction of what they and other officials are about to do tomorrow. In many cases that prediction cannot be wholly certain. Then you have room for something else, another main thing for the lawyer: a study of how to make the official do what you would like to have him. At that point “rules” do loom into importance. Great importance. For judges think they must follow the rules, and people highly approve of that thinking[10].’

In considering the aforementioned and the influence it has on judicial decisions, the approach does not become limited in its authority, but instead, creates a responsibility which rests upon those in other areas of the legal profession such as lawyers. Lawyers no longer act as a foundational support, but act in the interpretation of that authority[11]. The courts manage new decisions with discretion, taking into account the ‘sense of the situation as seen by the court[12].’

It is in Llewellyn’s judgment that the courts are operating for the improvement of the way in which the law is being applied[13]. Llewellyn’s theory takes this into consideration while also acknowledging the courts role within a changing community. Llewellyn came to the conclusion that the variety of ways in which a principle can be applied to a case does not affect the authority of judicial decisions. It can, however, encourage the construction on the facts which point to the method of application more dominantly appropriate in the case. Karl Llewellyn explains in his book The Common Law Tradition,[14] “the context for seeing and discussing the question to be decided is to be set by and in a body of legal doctrine”, including its rules as well as its “concepts, ideals, tendencies and pervading principles.” The ideas Llewellyn put forward were undoubtedly important and innovative, however, they have obtained a degree of criticism. It has been argued that Llewellyn’s ideas for the most part are impractical due to the difficulty in the implementation. The system of jurisprudence in which Llewellyn has put forward could possibly require a lawyer in arguing a case adequately, to go to ridiculous lengths. This conclusion has been reached in considering the effort involved in taking into account all of the possible factors affecting the outcome of a case. This is the reason Llewellyn's realist theories never became the precedent for viewing the law. The law has continued to be viewed as a set of rules which are consequently applied to each separate case[15]. It has been conveyed that the process involved in the application of case law, and the consequential possible techniques on hand to carry out such an endeavour, are infinite. In the process of judicial decision making, the procedure does not always work in accordance with its desired function. Notably, in consideration of this fact, there are those who can offer an understanding of whether Llewellyn is in fact correct in asserting that ‘there is no single right and correct way of reading one case, or of reading a bunch of cases[16]’ and that a ‘court’s decision might turn on what the judge had for breakfast[17].’ There are those who, in accordance with his suggestion, can add light to the argument. In each of these methodologies, comes a new implication for the role of the judiciary and also for its scope of authority.

Sir Owen Dixon’s approach in comparison to Llewellyn’s can be seen as less philosophical and more mechanical and legalistic. The basis of Owen Dixon’s viewpoint resides in the assumption that the court acts to facilitate the existence of ‘a definite system of accepted knowledge or thought and that judgments and other legal writings are evidence of its content[18].’ Unlike Llewellyn’s creative or constructionist role, Dixon suggested that:

‘The court and the legal system stand as a necessary foundation of any community. Indeed it may be said that the courts and the system of law are both the foundation and the steel framework, but neither a foundation nor a steel framework is ever able to do more than support a structure with stability and at rest[19].’

It was in Dixon’s belief that justice is administered in accordance with the law and not because justice constructs the law. In Dixon’s view, the role of lawyers is to act as a foundation which exists in order to keep the framework steady.

It can be inferred from the aforementioned that the court, and consequently the cases which pass through the courts, are already subject to pre-existing laws. There are inherent legal principles that apply to each case and the courts duty is to merely act to uphold these principles[20].

Gerrard Brennan sees the situation in a different light and sways away from the previous standpoint of Owen Dixon’s strict and complete legalism to acknowledge the changing circumstances which the law faces. Brennan believes that in circumstances where the elicit underlying principles of law are not enough to determine a judgment, the courts need to articulate the principles of the community which give validity to the law in question. In following Gerrard’s theory, the law, which has been shaped by English judges and later Australian, only changes in response to a changing community[21].

Under Gerrard’s view, the acknowledgement of the inherent principles and their unchanging authority supports the discretion of the judiciary when faced with new situations. This approach can be seen as an alternative to the idea of strict legalism and also the creative approach as taken by Llewellyn.

Although Karl Llewellyn has been criticized for his stance on the matter, he has shown that he would agree with the statement that, judges decide cases however they personally wish to, or however they feel at the time. Llewellyn has shown scepticism towards the rules by which the courts decided cases[22], and in turn the processes by which judges are able to make their judgments. It is in Llewellyn’s ideals that it is the duty of the court to know ‘the law as it is’ as opposed to what they would like the law to be.


The basis of equity is not simply English, but has its roots in ancient Greece. Ancient Greek philosophers such as Aristotle founded their own concept of equity. Aristotle interpreted equity as,

“…though superior to justice, is still just… justice and equity coincide, and although both are good, equity is superior. What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice[23].”

This quote of Aristotle’s, although written in ancient Greece, is an accurate explanation of the way in which English (or Australian) equity relates to the common law. Equity can be considered, in its broadest sense, as a body of law which deals with legal issues considered to be outside the jurisdiction of common law, creating a means of fairness within the legal system[24]. Equity deals with each individual case to provide a more specific fair judgment than that of the common law. Equity acts as a means to an end in issues of fairness[25].

The general principles of equity can be seen to predate that of the medieval Lords Chancellor through the ancient philosophers such as Aristotle. However, it was within the courts of Chancery where modern equity as we know it began to develop. Aristotle had no information regarding that which would eventually become English law, and Aristotle has not been generally regarded as an authority by English judges on equity, yet, Aristotle’s idea of equity contains relevant parallels to that of the way in which English equity relates to the common law[26]. In expressing his understanding of equity, Lord Chancellor Cowper in 1705 explained[27]:

“Now equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigour, hardness, and edge of the law, and is an universal truth; it does also assist the law where it is defective and weak in the constitution (which is the life of the law) and defends the law from crafty evasions, delusions, and new subtleties, invested and contrived to evade and delude the common law, whereby such as have undoubted right are made remediless: and this is the office of equity, to support and protect the common law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it.”

The aforementioned account of equity can be seen to express equity in terms of a moral virtue. This example displays parallels between that of Aristotle’s theories of equity and the foundations for which English common law equity has been built. Lord Cowper’s stance on equity’s duty within the common law is that of a moral function. This is in-line with that of the thought process expressed by Aristotle in his Ethics in which he anticipates it to be “right” for equity to rectify that of ordinary law[28].

English equity can be considered as being concerned with fairness, although, not in a sense of everybody being remedied while having no loss suffered. English equity acts to insure that there has been no unconscionable behaviour in a legal sense only[29].

The early Lord Chancellors were bishops of the Catholic Church and later the Church of England. The courts of equity therefore were based on religions notions of conscious instilled by the church. In modern times, the cases of equity are focused on the conscience of the defendant rather than that of the monarchy under which were the courts of Chancery[30].

Equity is in place to rectify legal wrongs. If there is an injustice of sorts, equity works to right those wrongs in what can be considered a moral context. Equity works by interpreting the conscience of the defendant in the modern court so that a defendant is unable to be unethical through their actions or omissions in a legal sense. Aristotle’s idea of equity can be seen to have many parallels with that of how the English (or Australian) equity relates to the common law.

[1] As per the assignment question.
[2] Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (1930) 3. [3] Keith Culver and Keith Charles Culver, Readings and the Philosophy of Law (1999) 133. [4] Larry May and Jeff Brown, The Philosophy of Law: Classic and Contemporary Readings (2010) 23. [5]Larry May and Jeff Brown, The Philosophy of Law: Classic and Contemporary Readings (2010) 23-24. [6] Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (1930). [7] Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) 109. [8] John Delaney, Learning Legal Reasoning: Briefing, Analysis, and Theory (1983) 128. [9] John Delaney, Learning Legal Reasoning: Briefing, Analysis, and Theory (1983) 128 [10] Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (1930) 4. [11] Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia, Brisbane (1987). [12] Larry May and Jeff Brown, The Philosophy of Law: Classic and Contemporary Readings (2010) 24. [13] John Delaney, Learning Legal Reasoning: Briefing, Analysis, and Theory (1983) 129. [14] Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) 19-22. [15] Larry May and Jeff Brown, The Philosophy of Law: Classic and Contemporary Readings (2010) 23. [16] Larry May and Jeff Brown, The Philosophy of Law: Classic and Contemporary Readings (2010) 23. [17] As per the assignment question.

[18] Society of Public Teachers of Law, ‘Journal of The Society of Public Teachers of Law’ (1961) 6 Journal of the Society of Public Teachers of Law, 29. [19] Michael Cathcart and Kate Darian-Smith, Stirring Australian Speeches: Definitive Collection From Botany to Bali (2005) 366. [20] Richard George Fox, The Concept of Obscenity (2009) 171. [21] Francis Gerard Brennan, Ethics and the Advocate (1992) Issue 9: Issue 92 of Continuing Legal Legal Education Lectures, 10. [22] Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (1930) 56. [23] Aristotle, The Nicomachean Ethics, 1955, 198, para 1137 a 17, x. [24] H G Hansbury, Essays in Equity (1977) 22.

[25] A E Randall, Story on Equity (3rd ed 1920) 3-4.
[26] JL Parker, Salmond on Jurisprudence (9th ed 1937) 672-73. [27] Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244, per Lord Cowper. [28] Michael L Morgan, Classics of Moral and Political Theory (2005) 645. [29] Alistar Hudson, Equity and Trusts (4th ed 2005) 318.

[30] Alistar Hudson, Understanding Equity and Trusts (3rd ed 2008) 207.

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