In the early 20th century, a new strain of legal thought called American Realism
took hold. It sprang up in response to the rigid and theoretical legal theories
that had dominated the scene. This fresh perspective aimed to examine law in a
more practical and sociological light, focusing on how legal decisions actually
affected society. Oliver Wendell Holmes Jr., and Karl Llewellyn, notable figures
who spearheaded this movement in the United States, had an especially profound
impact, alongside Roscoe Pound.
Notable figure Oliver Wendell Holmes introduced American Realism, a concept in
jurisprudence. He is often referred to as the "Spiritual Father of American
Realism Movement". In his influential work, "The Path of the Law", Holmes
presented the pioneering approach to realism in the year 1987.
American Realism in law combines the principles of analytical positivism with
sociological perspectives and studies the law "as it is" and not "as it ought to
be". This approach to studying law examines it in its current state, rather than
how it should be. The focus is on understanding the practical application of the
law, rather than its ideal form. American Realists seek to interpret the law by
taking into account sociological factors and comprehending its true effects in
American Realism stands out for its refusal to accept the notion that law exists
as a collection of theoretical principles disconnected from the world, we live
in. Instead, it asserts that legal regulations ought to be comprehended within
their social and economic framework. As an illustration, when delving into
contract law, realists would take into account the prevailing economic
circumstances and the power dynamics at play between involved parties, rather
than solely relying on textual analysis.
American Realism also placed great emphasis on the significance of empirical
investigation in comprehending legal phenomena. Noteworthy intellectuals such as
Roscoe Pound ardently championed the cause of sociological jurisprudence, urging
legal scholars to delve into the practical functioning of laws. Scrutinizing the
enforcement of criminal laws and their ramifications on diverse social strata
can offer invaluable insights into the tangible effects of legal principles in
our everyday lives.
The movement understood that judges have the power to make choices and influence
the law. Oliver Wendell Holmes Jr., a well-known realist, thought that law
should be seen as predicting what courts will decide. This understanding of the
real part of court decisions was a change from thinking that judges only find
and apply laws already there.
We should not ignore how American Realism affected legal learning. It was very
important in helping to improve a cross-disciplinary way of teaching and
studying law. Law experts began using ideas from fields like sociology,
psychology and economics in their studies. By accepting many views at once, they
learned more deeply how the law works in society. They thought about things that
weren't just part of legal rules but went way beyond them too.
Essentially, American Realism in the law field focused on making legal study
strongly based on reality. It gave importance to social issues and economic
matters along with practical experience. This change had a big effect on how law
was thought about during the first decades of 1900 and it still affects modern
legal study today.
To put it concisely, American Realism in the field of law aimed to establish
legal analysis firmly in the realm of reality, giving priority to social,
economic, and empirical elements. This movement had a substantial impact on
legal thinking during the initial decades of the 20th century and still exerts
its influence on present-day legal research.
Example of American Realism
Justice Oliver Wendell Holmes Jr. is commonly acknowledged as a notable figure
in American Legal Realism, which emphasizes the practical and sociological
aspects that influence legal decisions. His judicial opinions consistently
embraced this perspective. During the Lochner v. New York (1905) case, Holmes's
dissenting opinion serves as a captivating exemplification of his unwavering
commitment to American Legal Realism.
In the instance of Lochner, the US Supreme Court pondered over a law in New York
which aimed to govern the hours that bakers were permitted to work. This
particular law stipulated that bakers were forbidden from toiling away for more
than 60 hours each week or 10 hours each day. The majority of the Court, in a
verdict that adhered to a more stringent legal standpoint, proclaimed the law
invalid and without any force by stating that it transgressed upon the privilege
to engage in contractual agreements, a freedom enshrined within the Due Process
Clause of the Fourteenth Amendment.
Justice Holmes, in his thought-provoking dissenting opinion, took a practical
approach by challenging the majority's logic and emphasizing the significant
context of society and the economy relevant to the case. He put forth the
argument that the Constitution does not support a particular economic doctrine
and supported the idea of having room for maneuverability in addressing social
and economic issues through legislation. It is worth mentioning that Holmes
wrote these memorable words: "The Constitution does not establish an economic
theory; instead, it represents a specific political philosophy. The application
of the Fourteenth Amendment does not encompass Mr. Herbert Spencer's Social
Recently, we upheld the Massachusetts vaccination law. Requiring
individuals to be vaccinated during times of peace is evidently permitted by the
Constitution of the United States. However, forcing someone to labour for 60
hours per week within the confines of their own abode is an unacceptable
encroachment upon their freedom."
Holmes's disagreement in Lochner embodies a timeless illustration of American
Legal Realism due to its rejection of a rigid, rights-centred methodology in
favour of contemplating the wider societal and economic ramifications of the
law. Holmes advocated for judicial prudence and acknowledgement of the
legislature's power to tackle social concerns, demonstrating a realistic
standpoint that aimed to base legal judgments on the pragmatic circumstances of
that era. This opposing viewpoint has had a lasting influence on legal
philosophy and is frequently referenced as a pivotal milestone in the evolution
of American Legal Realism.
Characteristics of American Realism:
- Adapting to societal changes, American Realism views the law as fluid and evolving.
- Through their decisions, realists believe that judges have the power to shape and create the law.
- According to Realism, the law's primary purpose is to regulate and address social relationships.
- Realists support comprehensive examination of the reasons behind legal decisions and rules.
- Evaluating the effectiveness of legal rules heavily relies on their impact on society, which is a crucial factor.
- Various viewpoints are encouraged to be considered and evaluated by judges when it comes to legal issues, thanks to realism.
- Societal changes occur quickly, necessitating a constant review of legal principles.
- Emerging social issues require continuous examination of laws to effectively address and modify them.
- Realists acknowledge that the law is uncertain, and predictability depends on specific case details.
- A practical and logical basis for decisions is preferred over formal and conceptual approaches to the law.
- Rather than emotional considerations, decisions should be based on logical grounds.
- Influencing legal decisions and human behaviour, American Realism takes into account the psychological factors.
- The use of complex legal language is opposed by Realism due to the uncertainty that legal terms contribute to the law.
- Realists in legal decisions not only scrutinize the outcomes but also the justifications provided by judges.
- Realism is a key aspect of understanding the motivations behind legal decisions.
- Rather than abstract or theoretical considerations, realists prioritize the practical application of legal principles.
- Empirical research and sociological studies in American Realism are used to understand the practical functioning of laws.
- Considering the specific facts and circumstances, each legal case should be analysed on its individual merits.
- In favour of a more contextual approach, legal formalism is rejected due to its reliance on rigid rules without considering societal context.
- Case-specific details can cause variations in legal outcomes, even within similar legal frameworks.