We are about to start a new topic, Legal Realism. We will focus on American Legal Realism. This material will be covered in the mid-term exam.
Here is some background reading: Reading on Legal Realism It’s just a few pages from Raymond Wack’s book Understanding Jurisprudence. There should be two copies of this book in the library if you want to get a better version or read more.
We will talk about Oliver Wendell Holmes first. Here is the handout that I will discuss. Oliver Wendell Holmes summary. I will print a copy for each of you but I am putting it up here in case you’d like to make an early start and get ahead.
I would also like to discuss Jerome Frank. Here is the summary about him. Jerome Frank summary
If time permits, we will discuss Karl Llewellyn but if we do, it will only be very briefly.
In slideshow #2, which you will have already printed, you will notice there are only 2 slides about Legal Realism. You should read them. They are useful.
You will notice that at the beginning of that slideshow, I said that ‘Legal realism was a reaction to Legal Formalism”. Legal Formalism, part of Legal Postivism, was a way of looking at the law as a closed system of rules. The Legal Formalists saw law as a sort of formula that was applied to any set of facts to get the ‘right answer’. In a legal formalist way of thinking, the judge is like a robot or a machine who mechanically applies the law to the facts to get the right decision. There is no need to consider other factors such as the justice, morality of the outcome, or the purpose of the law or what have you. The judge applies the letter of the law.
The American Legal Realists came along and challenged that way of thinking about the law. They thought that it was wrong – that’s not how judges work. They were more realistic about what the law is, how courts work and how judgments are reached in particular cases.
To illustrate legal formalism, I usually give the ‘swimming race’ example. It is taken from a book by Margaret Davies called “Asking the Law Question”. Here is a scanned image of a page from her book. Please read it. Leave a comment if you wish.