Legal Realism

With the ascension of Justice Oliver Wendell Holmes, Jr. to the Supreme Court, a new concept of law was born.  Prior to this time, law was thought of in an abstract sense.  Disciplines such as philosophy and sociology were used to analyze it.  Holmes, and later Llewellyn, argued that such a view of law is unrealistic at best and the work of starry-eyed dreamers at worst.  Hece was born from these two men a more realistic and practical view, Legal Realism.

Holmes beleived that the criminal did not overly analyze the law.  He did not sit down and wonder if the law reflected a moral strength or was simply the outgrowth of the ruler's dictum.  For him, such a question was irrelevant.  He was concerned only with two things: will I get caught when I break the law, and what will my punishment be?  Holmes argued that such a view should be employed by theorists and jurists as well.  Each judge should ask, when presented with a case, "Has this person broken the law, and what punishment is appropriate for the crime?"  

Taking this view, then, implies that law is applied and interpreted by justices, thus making case law or precedent as they go.  Holmes' most famous quote on law reflects this implication: "The life of the law has not been logic; it has been experience."  

Legal Realism has shaped every succeeding school, most notably Process Theory.

Definitions and Works of Legal Realists

Legal Realism

Holmes, Oliver Wendell, Jr. Biographical Information
  The Common Law
Llewellyn, Karl Biographical Information
  Jurisprudence (source for the book)

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This page last updated 1 May 2002 by John Stradling

Copyright John Stradling 2002. All rights reserved.