American Realist Movement
HAS THE AMERICAN REALIST MOVEMENT LEFT ANY SUBSTANTIAL MARK ON JURISPRUDENTIAL THOUGHT?
We must approach this question in consideration of the fact that the American Realist movement never purported to formulate a complete theory of law which could stand alone to tell us what law is. Instead, the basis was that official conduct in dispute settlement in all kinds of dispute was the focal point for the analysis of the law's impact, facilitating the ability to make legal predictions based on expected official action. I think that to measure the impact of this type of thinking on jurisprudential thought, we need to keep in mind how it seeks to differ from other theory.
There are quotations that encompass Realism's ideals very well. Oliver Wendell Holmes, the intellectual inspiration for the realist movement, who was a Justice of the Supreme Court from 1902, is often cited as saying the prophecies of what the courts will do in fact, are what I mean by the law.' Later members of the movement such as Llewellyn describe that, what officials do about disputes . is the law itself.' The obvious theme amongst American Realists was rule scepticism, which provides that statutes and other legal materials were simply sources' for judges to lay down rules in the courts, but that the sources were not rules themselves. Judicial decision making was the law'. Thus in the future, different rules could be selected from the mass available to support decisions arrived at for reasons which had nothing to do with rules, for example equity or moral subjectivity. At its very extreme, this rule scepticism exhibited itself as fact scepticism, as propounded by Judge Jerome Frank (1889-1957). He felt that even in consideration of a particular easy-to-interpret' rule, a judge or in particular a jury can always find the facts it pleases so that a rule will give the decision it wants. Therefore, the law only comes into existence when particular facts have been decided on, and before that
We must approach this question in consideration of the fact that the American Realist movement never purported to formulate a complete theory of law which could stand alone to tell us what law is. Instead, the basis was that official conduct in dispute settlement in all kinds of dispute was the focal point for the analysis of the law's impact, facilitating the ability to make legal predictions based on expected official action. I think that to measure the impact of this type of thinking on jurisprudential thought, we need to keep in mind how it seeks to differ from other theory.
There are quotations that encompass Realism's ideals very well. Oliver Wendell Holmes, the intellectual inspiration for the realist movement, who was a Justice of the Supreme Court from 1902, is often cited as saying the prophecies of what the courts will do in fact, are what I mean by the law.' Later members of the movement such as Llewellyn describe that, what officials do about disputes . is the law itself.' The obvious theme amongst American Realists was rule scepticism, which provides that statutes and other legal materials were simply sources' for judges to lay down rules in the courts, but that the sources were not rules themselves. Judicial decision making was the law'. Thus in the future, different rules could be selected from the mass available to support decisions arrived at for reasons which had nothing to do with rules, for example equity or moral subjectivity. At its very extreme, this rule scepticism exhibited itself as fact scepticism, as propounded by Judge Jerome Frank (1889-1957). He felt that even in consideration of a particular easy-to-interpret' rule, a judge or in particular a jury can always find the facts it pleases so that a rule will give the decision it wants. Therefore, the law only comes into existence when particular facts have been decided on, and before that