Legal Realism??
John
I am a first year law student and I am trying to get a grip on some of
the philosophical positions that are specific to areas of legal
thinking (I was a philosophy major in undergrad). Can someone offer
some insight on what "legal realism" means? This label was attributed
to the late professor llewellyn and I am not sure what kind of stance
it refers to. I would appreciate any feedback...
Thanks,
John
S. W. Patterson
John wrote:
> Can someone offer some insight on what "legal realism" means?
In legal philosophy, 'legal realism' refers to the position that laws
exist primarily as the result of court decisions and not as abstract
concepts. Attendant to this theory is the notion that the law is best
understood by observing the behavior of courts and the agents therein. You
sometimes hear this referred to as "critical legal studies."
Steve
S. W. Patterson
T.Asquith wrote:
> I've been debating for a while as to whether I should respond to your
> comments Mr. Patterson--but as you can tell by my response, I couldn't
> resist the temptation any longer. :-)
>
> I find it hard to accept that 'legal realism' is CLS, as you have alleged.
<snip a well written and informative discussion of the differences between
legal realism and CLS>
Thank you for your post here. Perhaps my love of brevity got the better of me
in my previous post. I did not mean to suggest that CLS was identical with
legal realism, merely to indicate that the two are sometimes seen as related. I
can see now that I should have been clearer about this.
Mea culpa. :-)
Steve
--
^v^
T.Asquith
<Ste...@compuserve.com> wrote:
>John wrote:
>> Can someone offer some insight on what "legal realism" means?
> In legal philosophy, 'legal realism' refers to the position that laws
>exist primarily as the result of court decisions and not as abstract
>concepts. Attendant to this theory is the notion that the law is best
>understood by observing the behavior of courts and the agents therein. You
>sometimes hear this referred to as "critical legal studies."
I've been debating for a while as to whether I should respond to your
comments Mr. Patterson--but as you can tell by my response, I couldn't
resist the temptation any longer. :-)
While I agree that 'legal realism' refers to the position that laws
exist as the result of court decisions (well, more accurately that
judges 'make' the law), I find it hard to accept that 'legal realism'
is CLS, as you have alleged.
Legal realism, as a movement, had its heyday from roughly the 1920s to
the mid-1940s. And it was fairly successful. It not only undermined
liberal legalism, but it endangered much of the formalist project
(which has been basically in a process of rebuilding from the 1940s to
the present). But...
Legal realism also outlived its usefulness (mainly because it didn't
go far enough and as noted in a recent essay by Elizabeth Mensch, many
of the legal realists stopped themselves from engaging in further
criticism because their message was so damaging). Interestingly, the
product of this sort of manoevering was that some new forms off
justification for the system were created (mainly to counter the
logistic threat created by the very presence of the totalitarian
regimes in Europe at the time).
Now, while it is true that CLS is related to legal realism--neither
Fish, Hutchinson, Simon nor Kennedy would deny this, I personally find
it a bit of an inaccuracy to confuse the limited perspective of the
realists with the more recent Crit project. Crits, as such, have been
known to attack statutes, the legal profession, the educational system
and parliamentary institutions as well as the obvious power that
resides in the position of the judiciary. The number of targets open
to CLS is much broader than when the realist perspective was active.
Moreover, while the realists merely held that the system was set up to
maintain the set order, the Crits have aimed their cannons at the
entire hierarchical leviathan. The Crit tools are more varied than
the realists (deconstruction for example was not around in the 1920s).
And, I might point out, the realist project has to a certain extent
been largely subsumed into mainstream legal theory (while the
Crits--bless their souls--have remained on the fringes).
Forgive my rambling tone--but when I get started...well...you see the
consequences...
Cheers,
Tom Asquith
University of Alberta
tasquith [at] gpu.srv.ualberta.ca
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