AMERICAN LEGAL REALISM

(‘GERAKAN’ REALISME AMERIKA?)

Areas of discussion…..

Statutes are not law by virtue of their enactment. They only become law when
applied by a decision of the courts. Only then does a legislative enactment spring
to life and acquire actual force. Legislation is no more than a source of law : it is
the courts that ‘put life into the dead words of the statutes’.
(J C Gray, The Nature and Sources of Law (2nd edition) p.125)

Discuss the comment above and consider the American Legal Realists
perspectives about the influence of judges on law and legal process.

‘Peraturan-peraturan adalah penting setakat mereka membantu meramalkan

keputusan hakim. Itu sahaja kepentingan mereka, kecuali sebagai barang
mainan cantik’.

(LLwellyn, ‘The Bramble Bush’)

The prophecies of what the courts will do in fact and nothing more pretentions are
what is meant by the law.

[The bad man says, “If you want to know the law and nothing else care only for
the material consequences you can predict which would result if you are
convicted. Care not two straws for the axioms or deductions but only for what
courts are likely to do in fact”.]

“Laws are reflection of the whims and fancy of judges.”

Assess the significance of legal realism in understanding the role of judges in law
making.

Critical thinking:

Is ‘legal realism’ jurisprudence?

(could it be different from the more conventional jurisprudential
ideas?)

Is legal realism useful …to lawyers, judges, lawmakers, law

students?

or is it just cynicism?

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‘realism’

relating to the real world

the world as it actually operates

connote
practical
down to earth
pragmatic

intellectually…
testing theories by measuring them against what
is observed in the world, and
dismissing theories that fail to match the
recorded facts

American Realism: Major themes (shared outlines)

Realistic analysis of how ‘law’ operate…

REALISM

LAW IN THE BOOK

LAW IN ACTION

Illusion-Myth-Unpredictability 
certainty + predictability + precise  scientific > philosophical approach

ALR: A SINGLE IDEA OR CONNECTED IDEAS

ABOUT LAW?

…what justifies the notion that they together formed a

“school’ is the existence of a common and all-pervading
characteristic , namely a determination to look at the law
with open eyes, to look, not at the old books, but at the law

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 as it actually operated in everyday practice…
(Riddall, J. G. Jurisprudence 2nd ed. ( London : Oxford.
1999) p222-223)

Note of caution:

American Legal Realism is not a single view

There was never any corpus of agreed opinion, no central creed, no

consensus.

Covers …
 Rule scepticism
 Fact scepticism
 The prediction of decisions
 Judicial reasoning
 Judicial behaviour

THE BAD MAN LAW

What is law?
- higher principles – link to moral/ethical values [natural law]
- law as it is posited @ law in the books (legislation, case law etc) – [positivist]

The bad man

 a litigant in a civil action
 an accused in criminal proceedings

 is interested ONLY in the OUTCOME of his case:

- How will the judge decide?
- Will I win/lose?

‘But if we take the view of our friend the bad man we shall find that he
does not want to know what the Massachusetts or English courts are
likely to do in facts… The prophecies of what the courts will do in fact,
and nothing more pretentious, are what I mean by the law’.
(Mr Justice) Olive Wendell Holmes

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 ‘The law does not have any teeth until the courts decide something.
Indeed, until there is a decision, in way there isn’t any law. All we can
do is predict’ (emphasis added)

Holmes

J C Gray…

All law as judge-made law.

Statutes are not law by virtue of their enactment. They only become
law when applied by a decision of the courts. Only then does a
legislative enactment spring to life and acquire actual force. Legislation
is no more than a source of law : it is the courts that ‘put life into the
dead words of the statutes’.
(J C Gray the nature and sources of law (2nd edition) p125

From Riddal,J.G. Jurisprudence 2 ed p.225

* what is the significance of O.W. Holmes’s Bad Man’s law to our understanding of the
notion of ‘law’?

RULE SCEPTICISM

Scepticism …do judges’ actually apply all those rules in a case.

# If ‘laws’ are decisions of judges what happens to rules ?

Aren’t judges suppose to adhere to ‘doctrine of precedent’ , ratio etc??

Represented primarily by Karl Llewellyn

A judge - making a legal decision – faced multiplicity of rule:

Does he…

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 i. look at the rules, the statutory provisions, the previous judicial decision  distil
all the principles  decision?

ii. Thing about the case  decide who got the best case  fit the rules etc into
his ‘decision’.

Holmes:
‘General propositions, do not decide concrete cases’

Rules should only be considered as

general propositions > fix answers.

So many possible disputes  there cannot be exact rules for any dispute.

A belief in the ‘rule of law’ (decision are based and should be based on
rules) is desire for certainty and order
 but certainty (in legal decisions) – from rules - is an illusion.

The existence of general principles is an illusion

(Dewey,. ‘Logical Method and the Law’ (1924) 10 Cornell LQ 17

there was no antecedent principles to a particular case

judges/lawyers work backward:
o the decision preceded the principles;
o the principles are deduced from the decision;
o subsidiary principles are produced afterwards.

i.e the judges decision do not have a single, certain,

determinate principle!! But many….e.g.
 ‘duty of care’ in ‘negligence’
 common law system: stare decisis/judicial precedence and
‘ratio decidendi’)

Llewellyn list 64 ‘available, impeccable precedent techniques’ used by judges ..for

constructing their scheme of legal precedents and statutes.

The fact that there area many methods of interpreting precedents increases the
uncertainty of the law manifold.

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Olphant for example … illustrate how …what we called as a judge’s ratio can actually
be multiple rather than a single ‘rule/principle’

McCoubrey – 211-213
 Traditional theory paints an ideal syllogistic picture of the judicial process where
the clearly established statutes or precedents are applied to the facts with little
or no discretion on the part of the judges, judges are portrayed in this formalist
conception as machine like and totally neutral. Rule sceptics were very critical
of this established position and pointed to many fallacies in the traditional
approach.
.
 For the realist it was quire clear that the ideal of a logical and coherent system if
impossible to achieve and in fact the judge is not bound by any antecedent
rules. … for the realist a judge should not feel hidebound by established
precedent because there is no logical reasoning that dictates a choice of one
precedent over another ; there is in fact only the political need to respect the
ideal rule of law, so the judge instead of looking backward should look forwards
and make policy-based decisions that are best for society .

 Rule sceptics implore judges not to be bound by rules but be more ready and
willing to depart from precedent in the interest of society.

A critical view:

 this Realist thesis focuses on the appellate court – often

having to decide on cases with no precedents or rules;
sometime the court is expected to make moral decision albeit
in a legal form.

 outside court: there are rules too – which are followed to

administer public and private life. Many rules don’t go to court.
e.g signed cheque/doc etc

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FACT SCEPTICISM

FACT = TRUTH?

What is a ‘fact’ depend on

the eye of the beholder’

facts are interpretation…

What about ordinary trial?

 Scepticism of fact

 Prime proponents - Jerome Frank.

Thought Llewellyn et al. over-focus on rule because they only look at appeal
courts.

 Frank denied that there is certainty in the judicial process and if that model is
followed there is no way in which predictions can be made.

‘first the trial judge in a non-jury or the jury in a jury trial must learn about
the facts from the witnesses; and witnesses, being humanly fallible,
frequently make mistakes in observation of what they saw and heard, or in
their recollection of what they observed, or in their court-room reports of
those recollections’
(Jerome Frank, Law and The modern Mind, p.xii-xiii)

…primary interest is in the trial of courts. No matter how precise or definite may
be the formal legal rules ….no matter what the discoverable uniformities behind
these formal rules, nevertheless it is impossible, and will always be impossible,
because of the illusiveness of the facts on which decisions turn, to predict future
decisions in most (not all) lawsuits, not yet begun or not yet tried.

Riddal 229

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# sceptic about what:
 judges during trial – traditionally expected to hear all the facts of the
case; and arrive at his decision [the ‘law’] through a careful examination
of the fact + ‘law’.
 But facts may not be displayed in such a way that is accurate
 ‘facts’ are subject to interpretation
 judges are susceptible to the way facts are presented in court.

Rule/fact sceptic – regret - the failure of the system to enable a would be litigant to
be advised with at least a degree of certainty as to the probable outcome of a case.
A system that lacked certainty to such a degree was, they contended, defective

Llewellyn…[the common law tradition (1960) p 198)]

‘The reckonablilty of results….results are conceived to be hopelessly unpredictable.
…… I am dealing with the sound and right feeling of the American lawyer and he
American law consumer that the work for his appellate tribunals has no business to be
hopelessly unreckonable.’

The illusive or extra- legal factors

“A judge’s breakfast on the day will influence his decision at the court”.

those prejudices when they are racial, religious, political, or economic may sometimes
be surmised by other. But there are some hidden, unconscious biases of trial judges or
jurors – such as for example, plus or minus reactions to women, or unmarried women,
or red-haired women, or brunettes, or men with deep voices or high itched voices ,or
fidgety man, or men who wear thick eyeglasses , or those who have pronounced
gestures or nervous tics – biases of which no one can be aware’.
Jerome frank(law and modern mind)

Look at the whole process

..the fourth tread in American realism:

– a determination to examine afresh all aspects of the working of the administration,
procedures and practices of the courts at all levels of the system.

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..
availability of legal assistance to an accused person
the effects of availability or non-=availability of such assistance on the
outcome of trials
the operation of the jury system
the effectiveness of various forms of deterrents

Implication: Methodical impacts/developments

 Sociological
 Jurimetrics

Sociological
Examine operation of law…as an aspect of social organisation.
Using statistics, computers.

Jurimetrics
The desire to make ‘law’ @ judges decision predictable  developed
tools/method to
‘study legal processes by scientific means, in particular through the use of
statistics’ (Riddal p.231)

The next step forward in the long path of man’s progress

form jurisprudence (which is mere speculation about law)
to jurimetrics – which is the scientific investigation of legal
problems. In the field of social control (which is law) we
must at least begin to use the same approach and the
same methods that have enabled us to progress towards
greater knowledge and control in every other field.
(L Loevinger – Jurimetrics – The Next Step Forward (1949) 33
Minn LR 455)

the use of computer programs to undertake empirical

analyses of judicial decisions in order to ascertain patterns
of consistency and regularity, in ordr to help with the
prediction of decisions

(see F.Kort. Quantitaive analysis of fact patterns in cases

and their impact on judicial decision’ (196506) 70 Harv L
Rev 1595 )

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Implication: Judicial behavioralism

 desire for predictability: use non-legal methods to improve the predictability of

judicial decision making.

 Sociological, psychological etc.

Once the attitude of judges are established along these lines, it is possible to produce
a predictive model bcs ‘judges are expected to behave consistently with their beliefs
and the decision of the court is a liner function of the decisions of the individual
members’.

G. Schubert Mathematical Prediction of Judicial Behaviour (1964) pp445-8 (in Lloyds

introduction to jurisprudence)

factors that could influence a judge’s decisions [Riddal 230-31]

 social b’grund
 cultural and intellectual interests
 relationship in childhood with his parents
 relationship with wife and children
 political sympathies
 religious views
 financial interests
 psychological make up
 frame of mind on the trial day..


Critical Assessment

Shedding philosophical (jurisprudence) and formal (rules, positivist) approach

 mechanical and deterministic view of law

@ demystifying law.

c.f. Built-in system to deal with judges capriciousness.

- appeal system
- doctrine of precedent/stare decisis
- open court

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 (but again this system is not fool-proof)

good point: need to ensure selection of judges –avoid inherent prejudicial behaviour
or susceptibility to prejudicial viewpoints. (notion of impartiality)

good point:
the latter outcome of realist – jurimetrics, behaviouralism, and critical legal
studies…relevant now.

good point:
Law in action  demand a way of understanding law beyond statutes and law
reports

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TUTORIAL American Legal Realism 2013

‘But if we take the view of our friend the bad man we shall find that he does not
want to know what the Massachusetts or English courts are likely to do in facts…
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law’.
(Mr Justice) Olive Wendell Holmes

Statutes are not law by virtue of their enactment. They only become law when
applied by a decision of the courts. Only then does a legislative enactment spring
to life and acquire actual force. Legislation is no more than a source of law : it is
the courts that ‘put life into the dead words of the statutes’.
(J C Gray, The Nature and Sources of Law (2nd edition) p.125)

1. Based on the above statement, explain the following notions:

a. Bad man’s law.
b. Rule scepticism
c. Fact scepticism.
d. ‘Extra-legal factors’

2. Discuss the comment above and consider the American Legal Realists perspectives about the
influence of judges on law and legal process.

3. Does American Legal Realism has a single idea or a set of interconnected ideas about
law? Consider the following statement:

…what justifies the notion that they together formed a “school’ is the
existence of a common and all-pervading characteristic , namely a
determination to look at the law with open eyes, to look, not at the
old books, but at the law as it actually operated in everyday practice…
(Riddall, J. G. Jurisprudence 2nd ed. ( London : Oxford. 1999)
p222-223)

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