American Legal Realism:

Law as Judicial Pronouncement

Professor Susan Dimock
York University 2007
Copyright Susan Dimock 2007
Not to be used without written permission of the copyright holder.
Oliver Wendell Holmes, The Path of Law 1897
Jerome Frank, Law and the Modern Mind 1930
Theory of legal reasoning or adjudication.
Opposed to the Conventional View of Adjudication.
Conventional View:

Judges only apply the law which others make.

Judges are passive, bound by law that pre-exists their judgments.
Changes to law made by judges are corrections rather than alterations.
Only legislatures can make new law.
Adjudication is mechanical, logical, deductive reasoning.
Judges are to impartially apply the law which others make.
Realist View:

Adjudication is not logical or deductive.

Judges are not impartial.
There is no law that pre-exists the judgment of judges.
Judges make and change law.
Statutes and other sources of law are not law until courts say they are law.
What a statute requires cannot be specified until courts interpret and apply it.
Holmes

Law is whatever the courts will use the public might to enforce.
Law is a profession concerned with the use of public force by courts.
Sources of law (statutes, precedents, legal rights and duties) are all just prophecies about
what courts will do.
Study of law = study of systematized predictions of what courts will do. Through such
study we might be able to make generalizations; make the rules laid down by courts more

precise; and systematize court decisions into a coherent whole. (Frank does not even we
can do this.)
Law is the system of predictions even a bad man wants to know.
What is the law? Story of the Jones and the Williams family taxis companies.
Law is prediction or actual decision of a court.
Judging and Judicial Reasoning
Recall conventional view of judicial reasoning as deductive.
Rule or principle of law.
Facts of the case.
Conclusion / decision.
Realists deny.
Judges work back from conclusion to premises (precedents, rules, principles, statutes)
that support it.
Example: A drunk driver hits and injures another person. Is it assault with intent to kill
or reckless driving? Answer is determined by judges view of appropriate sentence.
What leads the judge to draw the original conclusion? Frank

Idiosyncratic biases, personal affections or animosities, prejudices.

Personal biases affecting the judges assessment of the facts of the case:
sympathies or antipathies to witnesses, lawyers, the parties. Will affect the
judges judgments of credibility, and what is literally heard or remembered by the
judge.

The testimony of witnesses is itself biased by personal characteristics and

idiosyncrasies. Witness testimony relies on fallible inferences from what was
actually seen or heard.

Fact skepticism.

Are judges then free to decide a case any way they want?

Law consists of the particular decisions of courts.

But there are sources of law (rules courts adopt for the settling of cases;
precedents; statutes)

But these do not determine a correct outcome to a case.

Rule skepticism.
Precedents

Precedents are illusory: too vague and general to determine future cases.
The facts of every case are too unique to determine the applications of the rules.
There are precedents that can support any conclusion.
Judges should arbitrate (equity) rather than issue judgments (legalistic).
Separation of Law and Morals

1) The bad man cares about one but not the other.
2) The limits of our legal rights and duties are not coextensive with our moral rights
and duties.
3) Morally bad statutes can be, have been, and are, enforced.
4) Normative words (rights, duty, malice, intent, negligence, etc.) have different
meanings in legal and moral contexts.
In law: duty just means liability to unwanted consequences; does not matter whether tax
or fine.
Duty to keep contract = prediction that you will pay damages if you dont.
Duty not to commit tort = liable to pay compensation.
Right to grant a lease = right to make the lease or pay damages.
Moral deals with the actual internal state of an individuals mind: what s/he intends. Law
deals with external signs and actions. Ex: meeting of minds vs. signs.
Why Legal Realism is Resisted
Descriptively at odds with what judges say they do.

Judges deny that they make law. They say they are applying existing law, even to
new cases, and judicial decisions are written to support this view.

It undermines a comfortable fiction: that the world is completely predictable.

Legislative changes to law are prospective, so fit with desire for desire for
predictability.

But judicial changes are retroactive and cannot be made fully predictable.

It undermines the theory that judicial reasoning is deductive from general principles.

Basis of certainty, agreement, neutrality or impartiality.

It undermines the separation of lawmaking and adjudication, making judges political

actors.

Law is determined by the practice of judges, who make controversial judgments

about the relative importance of competing interests or aims, about what is the
best public policy. They often make judgments based on compromises,
exceptions, considerations of social advantage. Since judges must make
controversial judgments about the public interest in deciding cases, they have a
duty to do so well.

Worries from (1) democracy and (2) justice.