Contemporary Legal Realism
Almost a century after the heydays of American legal realism, its legacy is still unclear. Part of the puzzle – the dispute as to whether the so-called legal realist revolt against formalism indeed transformed American legal discourse or simply emphasized and repackaged preexisting strands of thought – is beyond the scope of this entry (compare, e.g., Kronman 1998 to Tamanaha 2010). Rather than delving into this historical debate, the task here is to identify contemporary legal realist views; in fact, it is even narrower than that. This entry does not discuss the variety of post-realist schools – notably law and economics and critical legal studies – that either claim to be or are portrayed as descendants of legal realism. Because many contemporary American schools of legal thought are (or should be) indebted to the legal realists, there is little point in trying to cover them all in one short entry.
The focus of this entry is thus on three particularly interesting attempts of reviving the legal realists’ vision of law. (They are not the only ones; see, e.g., Green 2005.) The following sections address, in turn, these exercises of reconstruction: the first grew out of the law and society movement; the second was offered by legal philosopher Brian Leiter; and the last was developed by the author of this entry. The mission of each section is to present a succinct and fair summary of these different views. Because they each attempt to offer a reconstruction of American legal realism that is currently valuable, the comparison (or contest) between these approaches, which will not be attempted here, needs to refer both to the (vast) body of realist scholarship they interpret (or follow) and to the usefulness of these accounts for contemporary legal theory (see Dagan 2018, nd).
New Legal Realism
The new legal realism (“NLR”) is a movement of empirical legal scholars that took shape in the last quarter of a century. As a species of empirical legal studies, it has five distinctive features:
NLR is law based. The NLR approach is distinguished from “a purely social science approach to law” in being “usually based in law schools, driven primarily by problems that arise in legal practice,” and in placing greater emphasis “on doctrine and legal processes to explain legal outcomes” (Klug and Merry 2016, 2). NLR scholars appreciate the significance of doctrine, which they conceive as “an important language or backbone that lies behind the hurly-burly of law on the ground” and thus a necessary part of the “law in action” (Mertz 2016, 20). Similarly, their law-centric perspective leads NLR scholars to “examine how abstract law is translated in different institutional environments in which law is made, interpreted, and applied” and to appreciate the different ways in which legal norms are “mediated in through different institutional processes” (Shaffer 2016, 152).
NLR scholarship demonstrates how law is not reducible to other social phenomena: that “law itself – as language/discourse, as institutional practices, as aspirational ideals, as actual or potential enforcement of state violence, and so on – actually matters.” Law plays a “constitutive role,” which means that “legal meaning matters, [that] legal actors perform legal practices, [and that] institutional norms and pressures interact with other factors” (McCann 2016, xiv–xv). This is why NLR perceives its relationship with the social sciences as one of “a two-way learning,” rather than “the mere adoption of lessons from the social sciences” in a way that “subsume[s] law under the language of another discipline” (Shaffer 2016, 148).
NLR is concerned with translation and synthesis. The core mission of NLR is to facilitate the translation between law and the social sciences. The challenge is twofold: to provide lawyers, judges, and legal academics “better access” to the relevant knowledge generated by social scientists and to translate that knowledge into “the normative, engaged world in which lawyers must act” (Mertz 2016, 2–3, 10–11). Both of these prongs are quite complex.
Thus, “one cannot just pick up the ‘findings’ generated by a social science method” and “apply it mechanically to legal data” without also “understanding the theories and assumptions behind that method” and appreciating its “limitations and power.” This difficulty is exacerbated given NLR’s commitment to adapt its methodologies to the pertinent legal question, which implies the use of “diverse, sometimes contradictory methodological traditions of the social sciences” (Mertz and Barnes 2016, 181–182, 184–186, 199; Suchman and Mertz 2010, 562, 573).
The challenge of integrating social science into law is also complicated. Because “law is an explicitly normative endeavor, with its own methods and priorities,” social scientists cannot simply “employ their own frames and perspectives without giving some serious thought to the distinctive approaches of those trained in law.” And again the difficulty is intensified in a full-blown NLR approach; this time given is global ambitions (infra) that generate further translation difficulties “between law and legal institutions in different contexts,” both local and global (Klug and Merry 2016, II, 5; Mertz 2016, 3; Mertz and Barnes 2016, 181).
Some NLR scholars approach these challenges from a linguistic perspective, which conceptualizes them by reference to the “intertwined differences in purpose, epistemology, and discursive conventions between social science and law.” They perceive law as “a very distinctive, normatively charged set of linguistic practices,” which “have underlying goals and ethics that diverge sharply from those underlying most (if not all) of the social sciences.” They thus conclude that a successful translation into law requires a robust understanding of law’s “underlying worldview,” its “unspoken assumption,” “deeply felt attitudes,” and “core mission.” This is why at times the social sciences may be able to provide “valuable guidance to lawyers, judges, and lawmakers,” whereas “some forms of social science are [simply] not applicable to legal problems” (Ford and Mertz 2016, 2, 9, 18–19).
NLR focuses on the bottom-up perspective. NLR scholars pay particular attention to “the local delivery of law on the ground.” They believe that ignoring “the real mess of social life... dooms legal debate to an ever-more obscure and dated (albeit comfortably elite) position increasingly removed from other discussions of law across the academy and in society.” They thus insist that our understanding of law must be “grounded in the experiences of those who are ruled by the law rather than just by those who formulate it” and therefore tend “to examine the workings of law in the lives of people in the bottom and middle of the social hierarchy” (Mertz 2016, 7, 13, 19). These propositions explain, the NRL commitment to the analysis, interpretation, and assessment of “complex, contingent, dynamic, multidimensional features of real-life situations” (McCann 2016, xvii).
NLR’s constructive legal action. The main reason for NLR’s bottom-up emphasis is its commitment to trace and then alert against injustices and thus to help ensure that our legal systems deliver on their promise to do justice for all. Indeed, NLR’s empirical work is “catalyzed by normative concerns in light of power asymmetries and distributive conflict.” Thus, NLR scholars employ empirical analysis “for purposes of addressing social problems that both transcend and permeate the nation-state” so as to “advance social welfare and distributive justice.” Their “critical, reflective, and pragmatic edge” is also attentive to the inequalities and imperfections that typify “all decision-making processes” (Shaffer 2016, 145–146, 150, 152, 156).
NLR is attuned to the proliferation of legal forms in an increasingly globalized environment. NLR scholars are concerned with a “wide range of legal forms – at transnational, regional, supranational, and even global levels” (Twining 2016, 139). For NLR scholars, studying these legal forms is both a challenge and “an opportunity to understand the role law might play in achieving the goals of justice and stability sought by communities across the globe.” They realize that while this expansive realm of inquiry helps de-parochializing the project, it adds “layers of complexity.” It therefore requires heightened attention to “diversity and pluralism” and to the “relationship between law and culture” given the “radically plural” legal “practices, habits, and meanings” as well as the “different assumptions about the role of the law and the state” that typify “the contemporary era.” NLR scholars take this complexity as an opportunity to study both the significant globalizing role of the legal processes of norm diffusion and the continued embeddedness of law and legal institutions in local practices, contexts, histories, and even communal self-definitions. It thus further “open[s] up the relationship between the normative claims of global law and [the] more contextual and social scientific understandings of the role of law as it moves across boundaries of professions, states, and disciplines” (Klug and Merry 2016, 1, 3–8).
Brian Leiter, a leading legal philosopher, has devoted a robust body of scholarship, culminating in his book Naturalizing Jurisprudence, to defend the argument that “the real realist legacy in legal philosophy” is “[a] naturalized jurisprudence predicated on a pragmatic outlook” (Leiter 2007, 21). Leiter’s rich account of legal realism can be restated as three connected theses:
The pragmatic task of legal realism. Leiter argues that legal philosophers mistakenly dismissed legal realism, because they incorrectly assume it to be a theory of law, which it is not. Legal realism, he argues has no inspiration to contribute to legal theory. Rather, its mission is determined by its practical cash value, that is, by its ability to assist attorneys who must advise clients what to do and how it is useful for them to think about law. With this pragmatic mission in view, legal realism for Leiter is a “descriptive theory of adjudication, a theory of what it is that causes courts to decide as they do,” which is, as such, conducive to lawyers’ task of predicting judicial outcomes (Leiter 2007, 52–53, 60, 65, 71).
The realist legacy of naturalized jurisprudence. Leiter’s second thesis and his main substantive claim follow from this first thesis. In order “to predict reliably and effectively what courts will do,” he argues one should know “the causes of judicial decisions,” which are in turn “only available to the sort of empirical inquiry modeled on the natural and social sciences.” In other words, “[a] naturalistic theory of adjudication is required [in order] to produce a pragmatically valuable theory for lawyers” (31). It is helpful to separate out three naturalistic claims that Leiter attributes to legal realism: the first, which is situated at the forefront of his account, refers to the causes of judicial decisions; the others – that are no less important to his position – relate to the sources of legal predictability.
The first claim – the “core claim of realism,” as Leiter calls it – is that “judges respond primarily to the stimulus of the facts of the case,” which means that “the distinctive factual pattern” (or the “situation type”) determines the outcome of the case. In other words, instead of relying on “the legal reasons that fill their opinions,” judges focus on “the general type of behavior exemplified by the particular facts” of the case and decide based on “what would constitute normal or socio-economically desirable behavior in the relevant  context” (21, 23–24, 28–29, 53, 62).
Leiter’s second naturalistic claim, which also clarifies why the view that legal realism stands for judges’ unfettered discretion is a caricature, explains how prediction is possible notwithstanding the causal irrelevance of legal reasons. Judges’ “choice of decision” is “sufficiently fettered,” Leiter argues, not due to “idiosyncratic facts about individual judges” but rather due to “facts that are sufficiently common to judges.” More specifically, he claims that judges’ “‘sense’ of a particular situation” is shaped by their professional and social history in which they form “certain characteristic assumptions about what is right and fair in such circumstances, based in significant part on [their] familiarity with the local norms of conduct in that trade or practice.” This means that “judicial decisions fall into (sociologically) determined patterns,” which can thus form the basis for “predictive generalizations” (23, 25–27, 29–30).
From these observations, Leiter deduces the third prong of his naturalistic rendition of legal realism, which focuses on legal theorists. In order to perform the crucial task of discovering the real patterns of judicial decision-making, legal theorists, he argues, must approach law “like a behaviorist psychologist, an anthropologist, or an empirical sociologist.” A properly naturalized jurisprudence is thus “a type of jurisprudence that eschews armchair conceptual analysis in favor of continuity with a posteriori inquiry in the empirical sciences.” Leiter seems ambivalent about what he dubs “a ‘folk’ social scientific theory of adjudication” that can be found in the corpus of the original legal realists. Some of his statements imply that this folk theory may be a valuable ingredient in, or a stage toward, a more mature empirical inquiry. Other statements, especially in Leiter’s more recent scholarship, refer to the realist folk theory and to “sound empirical work on law and the legal system” as two distinct and independently worthy endeavors (55, 63, 90, 134–135; Leiter 2013, 963).
Legal realism as tacit hard positivism. Leiter’s third (and most surprising) thesis is that the realist descriptive theory of adjudication, just discussed, necessarily relies on a positivist theory of law, or – more precisely – on hard (or exclusive) positivism, in which “facts about pedigree or sources” primarily determine legal validity (121–123). This thesis challenges the conventional view, in which legal positivism and legal realism are incompatible given the former’s insistence that “prior official acts (like legislative enactments and judicial decisions) constitute ‘law’” and the latter’s account of the indeterminacy – or more precisely under-determinacy – of these sources (59–60, 69).
Leiter interprets the realist claim of indeterminacy not as a global argument, but rather as one that applies to “many cases” that are typified by an “interpretive latitude,” which injects “a considerable degree of indeterminacy.” In this (but only this) particular set of cases, legal rules do not determine or constrain decision, and the realist naturalistic thesis kicks in. Positivists treat this set as marginal to the practice of adjudication, whereas realists insist that it is rather typical to cases actually litigated, at least at the stage of appellate review, so that empirically adjudication is best explained by reference to the typical judicial response to the stimulus of facts. This implies that the positivist-realist dispute on this front is one of degree, and while positivists may be right, they offer no supporting argument other than “armchair confidence in the correctness” of their view (19–20, 64, 75–79).
This means that positivists have something to learn from realists. It also means that positivists need not refine their conception of law, quite the contrary. To begin with, legal realism in this view concedes that most rules are determinate as applied to most situations. Moreover, the realist position thus conceived assumes that “statutes and precedents largely exhaust the authoritative sources of law,” whereas “uncodified norms and policy arguments” are not “part of the law.” It thus presupposes a positivist theory of law in which “criteria of legality are exclusively ones of pedigree: a rule...is part of the law in virtue of having a source in a legislative enactment or a prior court decision.” This presupposition – in which law is strictly defined by pedigreed sources – implies the tacit hard positivism that Leiter attributes to legal realism. Furthermore, legal realism – along with contemporary empirical legal studies – ends up, in Leiter’s view, supplying an a posteriori vindication of hard positivism by showing that it gives us “the best going [empirical] account of how the world works” (72–73, 79, 133–135).
Finally, in this author’s reconstruction, the legacy of legal realism provides a subtle view of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress (Dagan 2013).
Critique of pure doctrinalism. The starting point of the realist view of law is its critique of a purely doctrinalist understanding of law. Equating law with doctrine is wrong because the doctrine qua doctrine (namely, the pedigreed sources just mentioned) is radically indeterminate. Realism views legal doctrine as hopelessly indeterminate not because of the indeterminacy of discrete doctrinal sources (as the positivist account of indeterminacy, which Leiter challenges only quantitatively, assumes). Rather, the indeterminacy of legal doctrine derives primarily from the multiplicity of doctrinal materials potentially applicable at each juncture in any given case. Legal doctrines are patchworks of contradictory premises covered by “ill-disguised inconsistency,” because, in all of them, “a variety of strands, only partly consistent with one another, exist side by side” (Llewellyn 1933, 45, 51; Llewellyn 1962a, 58).
The inevitable gap between doctrinal materials and judicial outcomes evokes two related concerns. First, what can explain past judicial behavior and predict its future course? Second, how can law constrain judgments made by unelected judges (and thus maintain its distinction from politics)? The second (legitimacy) challenge is particularly formidable given the insidious tendency of the doctrinalist discourse to obscure contestable value judgments made by judges (or other legal actors) and to entrench lawyers’ claim to an impenetrable professionalism, improperly shielded from critique by nonlawyers (Rodell 1940).
Legal realism answers this challenge by advancing the view of law as a going institution (or rather a set of institutions) distinguished by the difficult accommodation of the three constitutive yet irresolvable tensions mentioned above – the tensions between power and reason, science and craft, and tradition and progress.
Power and reason. The realist view of law finds room for both power and reason, although it recognizes the difficulties of their coexistence. The preoccupation with power is justified because, unlike other judgments, those prescribed by law’s carriers can recruit the state’s monopoly of power to back up their enforcement as well as institutional and discursive means that tend to downplay some dimensions of law’s power. These built-in features of law – notably the institutional division of labor between “interpretation specialists” and the actual executors of their judgments, together with our tendency to “thingify” legal constructs and accord them an aura of correctness and acceptability – render the danger of obscuring law’s coerciveness particularly troubling (Cohen 1935; Dewey 1924, 24). They justify the realists’ wariness of the trap created by the romantization of law.
But legal realism rejects as equally reductive the mirror image of law, which portrays it as sheer power, interest, or politics. Law is also a forum of reason, and reason imposes real – albeit elusive – constraints on the choices of legal decision-makers and thus on the subsequent implementation of state power. Law is never only about interest or power politics; it is also an exercise in reason giving. Law’s coercive power can only be justified if it is properly grounded in human values. Realists are thus impatient with attempts to equate normative reasoning with parochial interests or arbitrary power. They also find such exercises morally irresponsible because they undermine both the possibility of criticizing state power and the option of marshaling the law for morally required social change (Llewellyn 1940).
And yet, realists are also wary of the idea that reason can displace interest or that judges can set aside all influences except for the better argument. Because reasoning about law is reasoning about power and interest, the reasons given by law’s carriers should always be treated with suspicion. This caution explains the realist endorsement of value pluralism, as well as its conceptualization of law’s quest for justification as a perennial process that constantly invites criticism of law’s means, ends, and other (particularly distributive) consequences (Holmes 1920, 181; Llewellyn 1962b, 211–212).
Legal realists do not pretend they have solved the mystery of reason or demonstrated how reason can survive in law’s potentially coercive environment. Nevertheless, their recognition that power and reason are doomed to coexist in any credible account of the law is significant. Making this tension an inherent characteristic of law requires rejecting reductionist theories employing an overly romantic or too cynical conception of law. This approach also forces us to be aware of the complex interaction between reason and power. It thereby accentuates the responsibility incumbent on the reasoning of and about power, minimizing the corrupting potential of the self-interested pursuit of power, and the perpetuation of what could result as merely group preferences and interests.
Science and craft. Consider now the non-doctrinal reasons that legal realism invites into legal discourse, which are premised on both science and craft. Legal realism acknowledges the differences between lawyers as social engineers who combine empirical knowledge with normative insights, on the one hand, and lawyers as practical reasoners who employ contextual judgment as part of a process of dialogic adjudication, on the other. They nonetheless insist on preserving the difficulty of accommodating science and craft as yet another tension constitutive of law.
Legal realism emphasizes the importance of empirical inquiries, such as investigating the hidden regularities of legal doctrine in order to restore law’s predictability or studying the practical consequences of law in order to better guide its evolution and protect its legitimacy (Schlegel 1995, chs. 2 and 4). But the prototypical realists who guide this reconstruction reject any pretense that knowledge of these important social facts can be a substitute for political morality. They realize that value judgments are indispensable not only when evaluating empirical research but also when simply choosing the facts to be investigated. Moreover, they are always careful not to accept existing normative preferences uncritically. Legal realists insist that neither science nor an ethics that ignores scientific data offers a valid test of law’s merits. Legal analysis needs both empirical data and normative judgments (Cohen 1935, 849).
Because law affects people’s lives dramatically, social facts and human values must always inform the law’s evolution, but the realist view of law also highlights that legal reasoning is a distinct mode of argumentation, different from other forms of practical reasoning. Hence, realists pay attention to the distinctive institutional characteristics of law and study their potential virtues while remaining aware of their possible abuses. The procedural characteristics of the adversary process, as well as the professional norms that bind judicial opinions – notably, the requirement of a universalizable justification – provide a unique social setting for adjudication. These characteristics establish the accountability of law’s carriers to law’s subjects and encourage judges to develop “a many-perspectived view of the world,” or a “synoptic vision” that “can relieve us of the endless anarchy of one-eyed vision” (Cohen 1950, 242).
Moreover, because the judicial drama is always situated in a specific human context, lawyers have constant and unmediated access to human situations and to actual problems of contemporary life. This contextual feature of legal judgments facilitates lawyers’ unique ability to capture the subtleties of various types of cases and to adjust the legal treatment of them to the distinct characteristics of each type of case (Llewellyn 1930, 453, 457).
To be sure, realists do not perceive law’s resort to both craft and science in attempting to comply with the heavy burden of justifying its prescriptions as an empirical observation or a conceptual requirement. The law can still be law even if its carriers fail – as they often do – to properly investigate its social effects or sufficiently probe into its justice or if lawyers’ way of thinking in a certain time and place inhibits, rather than serves, justice. But these propositions do not threaten the realist view of law. The reason for this is that – given their rejection law’s romantization – the realists’ reference to craft and science should be understood merely as typical means with which law can face up to the challenge of justification, rather than a necessary feature of law.
Tradition and progress. The extended realist treatment of science and craft derives from the conviction that law is profoundly dynamic, which leads to the third constitutive tension identified. Law’s inherent dynamism implies that the legal positivist’s attempt to understand law by sheer reference to verifiable facts – such as the authoritative commands of a political superior or the rules identified by a rule of recognition – is hopeless.
To clarify, legal realists do not contest the felt predictability of the doctrine at a given time and place. Quite the contrary, they recognize that the social practice of law at a given time and place provides insiders to the pertinent legal community determinate answers to doctrinal quandaries. The understandings of such insiders surely converge on many legal questions: they tend to read the pertinent pedigreed sources similarly. But this legal determinacy, which explains why the realist view of law complies with the rule of law requirements of guidance and constraint, does not inhere in the doctrine as such and rests instead on the broader social practice of law. What accounts for law’s stability and predictability is not law’s pedigreed sources, but rather their prevalent understanding within that community – the implicit sense of obviousness insiders share as per “on-the-wall” interpretations of the doctrine (Dagan 2015, 1900–1902).
Under the realist view, law is “a going institution” that is intrinsically dynamic. At its best, it is portrayed as “a functioning harmonization of vision with tradition, of continuity with growth, of machinery with purpose, of measure with need,” mediating between “the seeming commands of the authorities and the felt demands of justice” (Llewellyn 1960, 37–38).
The realist “big picture.” Many contemporary legal theories continue the realist project by refining and elaborating one realist tenet, be it its challenge to pure doctrinalism or its account of one of the features that, according to legal realism, are constitutive of law. But the current debates between law as power and law as reason, law as science and law as craft, and law as tradition and law as progress are futile and harmful. From the perspective of this reconstruction of legal realism, all these unidimensional accounts of law are hopelessly deficient. Law can be properly understood only if we regain the realist appreciation of law’s most distinctive feature: the uneasy but inevitable accommodation of power and reason, science and craft, and tradition and progress.
This entry surveyed three recent attempts to reconstruct or revive American legal realism. The New Legal Realism is a law-centered species of empirical legal studies, which is focused on law on the ground and seeks to translate social science and synthesize its findings into law. NLR scholars are committed to constructive legal action and attuned to the changing faces of law in an increasingly globalized environment. Brian Leiter, by contrast, conceptualizes American legal realism as a naturalized jurisprudence, aimed at assisting lawyers to predict outcomes. His main substantive claim is that realists developed a robust naturalistic account, both concerning how judges decide and regarding the premise of law’s predictability for legal insiders. His main jurisprudential point is that legal realism necessarily relies on legal positivism, or more specifically that legal realists are tacitly hard positivists. Finally, the author of this entry argues that the real legacy of American legal realism is the realist view of law as a dynamic institution or, more precisely, a set of institutions, embodying three constitutive tensions: between power and reason, between science and craft, and between tradition and progress. What realists find most distinctive about law, in this view, is the uneasy but inevitable accommodation of these constitutive tensions.
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