The Theory of Legal Realism - Essay Example

Question 2: Legal Realism By Introduction The theory of legal realism argues that law itself is not based on ‘logic’, but rather on ‘experience’.1 Although, the theory of realism has contributed to law as a science, it has been criticised as failing to acknowledge the value of ‘diagnostic’ and analytical techniques in law.2 A similar criticism was made by Constable who said that legal realism too quickly dismisses the predictive value of ‘legal speech’.3 This paper analyses the theory of realism and argues that this is not a fair criticism of legal realism. This paper is divided into two main parts. The first part of this paper discusses the theory of legal realism and the second part of this paper analyses criticisms of legal realism with a view to justifying the claim that the criticisms are not fair to the theory of legal realism. The Theory of Legal Realism The theory of legal realism argues that law is system of rules articulated by the judiciary who interpret legislation and the common law.4 Since the judiciary brings to the judgment seat his or her own subjective thinking, legislation is subject to the judiciary’s interpretation of law.5 Even so, legal realists acknowledge that some rules obtained in statutes are straightforward and predictive of how an individual might respond to such a rule and how the judiciary may rule. For example, a road traffic rule prescribing the speed limit at a fixed rate of speed will instruct anyone reading the statute as to the lawful speed limit. Similarly, a judge presiding over such a case will have no room for loosely interpreting the statute. However, there are some rules of law that require subjective reasoning and in such a case, the special facts and circumstances of the case are applied by the judiciary in the interpretation of those rules.6 Legal realism essentially presents the judiciary as ‘law makers’ as opposed to ‘law-appliers’.7 In this regard, judges enjoy creative license to interpret the law and to fill gaps in existing law through reasoning. Thus in interpreting law the judiciary may clarify or expand on existing law and in doing so is rewriting the law. At the same time, where no specific law exist, the judiciary is at liberty to make law responsive to the case.8 From this perspective, judges are not merely stating what the law is, but are instead, declaring the law.9 The emphasis on the judiciary’s power to make law is based on the legal realist’s perspective that law is flexible and responds to changes in society over time. Law in this regard, is one of several institutions ‘in society that is shaped by social forces and needs.’10 Since the law is made by and for human beings, it requires that the judiciary take account of ‘social and economic realities’ when making a decision. Moreover: Legal realists also believe that the law can never be applied with total uniformity. Given that judges are human beings with unique personalities, value systems and intellects, different judges will obviously bring different reasoning processes to the same case.11 Essentially, legal realists argue that law is not a fixed medium that can understood by reference to fixed rules and ideas. Law is always moving and as such is in a perpetual state of development and interpretation. A legal issue cannot be resolved by merely referencing rules and ideas. These rules and ideas are always open to interpretation in response to changing realities.12 Criticism of the Theory of Legal Realism H.L.A. Hart has been described as among the most critical of legal realism.13 Hart’s main criticism of legal realism rests on the separation of morality from law. Although both Hart and legal realists agree on the intersection of law and morality, there are significant differences in their perceptions of the ‘scope of law’s penumbral frontiers’.14 From Hart’s perspective there is far more certainty in law than legal realists are prepared to admit. While some rules of law contain a measure of fuzziness, the main rule is clearer. For example, a rule suggesting it is an offence to park a motor vehicle in a particular place, is clear enough to lead to a conclusion that motor vehicles do not include toy cars. Even so, judicial certainty in the interpretation of rules is obtained through a number of rules of law including due process, reasonable care and so on.15 However, Hart’s own concept of law in relation to the scope of law’s frontiers is not beyond reproach and fails to take account of the nature of precedents. Precedents in terms of the law-making process appears to be far more compatible with legal realism than with Hart’s concept of law. For example, there are more than enough instances of judges deciding the same points and facts differently using the same rule of law. Likewise, the development of precedents demonstrate that rules are modified to accommodate changes in society and economics.16 It therefore appears that criticism of legal realism by Hart is not altogether fair in that Hart’s own concept of law is not as consistent with the law making process as legal realism is. Moreover, Hunter suggest that Hart’s concept of law is more compatible with legal realism than Hart wants to acknowledge. Both philosophies of law differ in terms of scope, but are vastly similar in principle.17 Dagan goes further to defend legal realism and in doing so describes it as a ‘rich account of law’ and representing: …law as a set of institutions accommodating three sets of constitutive tensions: power and reason, science and craft, and tradition and progress.18 Specifically, Dagan argues that criticism of legal realism fails to recognize the practical explanation that legal realism provides for explaining the complexity of contemporary law. Legal realism in this regard is not so much about what law ought to be, but rather, about what law is. In order to gain insight into what law is, one must necessarily look at how it plays out in reality. When one looks at adjudication, it is clear that judicial reasoning is consistent with the legal realists’ account of law. Judicial reasoning encompasses, ‘law making, law-applying, law-interpreting, and law-developing.’19 A case can therefore be made that legal rules contemplated by legislators are deliberately formulated so as to allow judges to take account of the economic and social realities existing at the time of adjudication. For example, Stack argues that the law making process begins with legislators articulating a rule which is left for courts to interpret and define so that the methods and guidance for compliance is formulated and understood.20 In other words, legislators do not usually enact unambiguous rules and thus legal certainty is only achieved once the judiciary interprets the law. In doing so, just as legal realists suggests, the judiciary looks to public policy and the extent to which it was contemplated by legislators in the rule-making or law-making process. Thus what might appear to be ambiguity in a rule, is nothing more than a direction to the judiciary to take account of the special facts and circumstances of the case and the economic and social realities existing at the time the case is interpreted. This would necessarily include public policy considerations in that the effect of law on the public interest or how the interpretation of the rule makes or alters law in support of or to the detriment of the public interest.21 As Singer argues, legal realism offers a profound understanding of the nexus ‘between law and society.’22In this regard, legal realism attempts to provide insight into how law interacts with and intervenes in the ‘real world.’23 Thus legal realism unites the science of law with society. By taking this approach, legal realists were attempting to identify ways in which justice on a social justice can be achieved more accurately through the law making and law interpreting and applying processes.24 Moreover, legal realism is an attempt to demonstrate that rules are not decisive in terms of how cases are ultimately decided. Rather, rules are ‘merely tentative classifications of decisions reached, for the most part, on other grounds.’25Thus from the legal realists’ perspective, one cannot look to a specific case and identify a rule of law that can be applied to every case. Statutory rules will be indicative of interpretations that are subject to different outcomes depending on the facts and circumstances of the case. This predictive value of judgment is therefore confined to the facts of the case, rather than the statutory rule itself.26 In other words, for the most part, a statutory rule does not definitively define law unless and until it is interpreted and applied by a court of law. Judges are not uniform in the reasoning that they bring to the judgment seat and as such, one can expect that rules can have different meaning depending not only on the judge’s reasoning and the facts and circumstances of the case. Much will depend on how the judge decides to interpret the rule in the context of the facts and circumstances of the case. Since judges are human beings, one can expect that how each judge reasons will be different from how other judge’s reason. The system of precedents however, establishes some weaknesses in the legal realism philosophy. While judges are human with their own experiences and reasoning tenets, they are invariably bound by the precedents system. The system of precedents, also known as stare decisis is the ‘rule of English common law that requires judges to stand by their previous decisions’.27 Thus the system of precedents functions to place historical law developments into a perpetual state of law.28 Even so, it is necessary to give legal realists credit for recognizing that in reality judges do not remain stuck in the past based on the system of precedents. Although initially devised to provide for greater predictability and certainty in law, the doctrine of precedents was never an absolutely binding system. Judges were always at liberty to use their reasoning skills to overrule or overturn precedents provided it was determined that the rule implicit in a previous decision was ‘absurd’ or ‘unjust’.29 Thus the judiciary exercises a wide range of discretion in terms of how it wishes to proceed on the basis of precedents. In doing so, it is clear that the judiciary is able to look at the facts and circumstances of a case and just as the legal realists suggest, the judiciary is at liberty to consider the social and economic realities of the case. In doing so, any judge might come to the conclusion that a rule established by precedent is wholly unjust or absurd giving the contemporary realities. In considering criticism of legal realism which was initially a response to legal formalism, Posner argues that legal realism is more compatible with the reality of law than formalism is. In this regard, Posner argues that legal formalism: …can mean narrow, conservative, hypocritical, resistant to change, cauistic, descriptively inaccurate (that is, “unrealistic” in the ordinary-language sense of the word), ivory-towered, fallacious, callow, authoritarian – but also rigorous, modest, reasoned, faithful, self-denying, restrained.30 In the meantime, legal realism can also be described in negative terms such as ‘cynical, reductionist, manipulative, hostile to law, political, left-wing, epistemologically naïve’ and so on.31 However, there is no denying that legal realism is also ‘progressive, humane, candid, mature, clear-eyed’.32 Specifically, legal realism is best captured by Holmes contention that: …the law was not a set of pre-existing concepts of fixed scope but a tool of government which would and should be reshaped as the desires of the community or (more realistically) of its politically dominant groups changed.33 The predictive value of law is therefore not so much what a rule dictates, but what the judiciary will do when presented with a specific set of circumstances and facts within a relevant time frame.34 Thus criticism of legal realism is unfair to the extent that while it might not always be true that judges make law, it is true to a certain extent that law is best understood through experiencing law as opposed to relying primarily on legal texts. No theory of law is perfect and each have their flaws. However, attempts to discredit legal realism on the basis of its approach to understanding law are unfair as law is complex and can benefit from various approaches to understanding and interpretation. Legal realism is a valid option when one looks at the common law process. As Posner observed, legal realism can ‘mean anything from left-wing ideology to pragmatic, intelligent, and epistemologically mature engagement with the legal system.’35 Put in more simplistic terms, legal realism can refer to the ‘use of policy analysis in legal reasoning’ and ‘there is nothing illegitimate about this; it has always been an important part of law’ and it is significant for ‘solving many legal problems’.36 Therefore, it might always be possible to identify flaws in any theory of law, but it is also likewise possible to identify valid arguments and insights. Legal realism is no different from any other theory of law in that it provides a unique and interesting method for analysing what law is or ought to be. What validates legal realism is that it takes a more realistic view of the law and looks to the human and social influences that cannot be discarded. Conclusion Criticism of legal realism on the grounds that it discounts legal texts is unfair. As this paper revealed, legal realism does not necessarily dismiss legal texts. Rather, in embracing law as an accumulation of experiences, legal realism prefers that law is understood by an examination of law as an institution among many others in the societal ordering. By taking this approach, legal realism engages an examination of the human and social contours of law and in doing so departs from a purely clinical and mechanical understanding of law and what law is or ought to be. While it is true that law is not solely made by the judiciary, it is true that the judiciary, at least from the perspective of the common law, makes law. Even in terms of statutory interpretation it is not a far stretch to suggest that the judiciary makes law. Judges interpret and apply rules arising out of legislative provisions. In doing so, judges can modify and expand on rules to such an extent that the original statutory rule changes significantly. Therefore, when one dismisses the idea that judges do not make law out of legislative rules, one is also denying the fact that judges can alter the law and change it’s meaning to such an extent that a whole new way of applying the rule arises. Moreover, judges can interpret rules arising out of statutes to such an extent to specify its meaning and application. While this might not result in a new rule, it will invariably result in a whole new way of applying and enforcing the rule. It can therefore be concluded that criticism of legal realism on the grounds that it relies too narrowly on law as experience is unfair. Legal realism does not dismiss other sources of law, but merely emphasises what source of law carries more predictability. As revealed in this paper, the role of the judiciary in the interpretation and application of rules and the law making abilities in the common law, all point to the fact that the judiciary more than any other legal text appears to have the final word on what is law. Thus the theory of legal realism is a valid philosophy of law and might be more realistic than formalism or just as valid as any other theory or philosophy of law in helping to identify just what law is or ought to be. Bibliography Textbooks Dagan, H. Reconstructing American Legal Realism & Rethinking Private Law Theory, (Oxford, UK: Oxford University Press, 2012). Miller, R. Cengage Advantage Books: Modern Principles of Business Laws, (Mason, OH: South-Western Cengage Learning: 2012). Journal Articles Constable, ‘On the (legal) Study Methods of Our Time: Vico Redux.’ (2008) 83(3) Chicago-Kent Law Review, 1304-1332. Coplan, K.S. ‘Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy.’ (2011) 86 Tulane Law Review 181-218. Dagan, H. ‘Defending Legal Realism: A Response to Four Critics.’ (2014) 1(2) Critical Analysis of Law, 254-267. D’Amato, A. ‘Legal Realism Explains Nothing.’ (2009) 1(1) Jurisprudence Review, 1-20. Damren, S.C. ‘Stare Decisis: The Maker of Customs.’ (2000) 35 New England Law Review,1-21. Gilmore, G. ‘Legal Realism: Its Cause and Cure.’ (June 1961)70(7) The Yale Law Journal, 1037-1048. Green, M.S. ‘Legal Realism as Theory of Law.’ (2005) 46 William and Mary Law Review,1917-2000. Kennedy, W. B. ‘A Review of Legal Realism.’ (1940) 9 Fordham Law Review, 362-374. Noland, J.D. ‘Stare Decisis and the Overruling of Constitutional Decisions in the Warren Years.’ (1969) 4(1) Valparaiso University Law Review, 101-135. Posner, R.A. ‘Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution.’ (1986) 36 Case Western Reserve Law Review,179-217. Posner, R. ‘Jurisprudential Responses to Legal Realism.’ (1988) 73 Cornell Law Review, 320-330. Quevedo, S.M. ‘Formalist and Instrumentalist Legal Reasoning and Legal Theory,’ (January 1985) 73 California Law Review, 119-157. Singer, J.W. ‘Legal Realism Now,’ (1988) 76 California Law Review,465-544. Stack, K.M. ‘Interpreting Regulations,’ (December 2012) 111 Michigan Law Review, 355-421. Taylor, Jr., E. H. ‘H.L.A. Hart’s Concept of Law in the Perspective of American Legal Realism,’ (Nov. 1971) 35 Modern Law Review, 606-620. Read More