Posted by Jeffrey Thayne
Legal realists present a very interesting and compelling claim: what qualifies as law is not what legislators enact, but what judges enforce. John Chipman Gray was the first to systematize this idea into a coherent theory of law. According to Letwin, Gray believed that “any law that the courts fail to adopt is not law. … the true lawgiver, Gray concludes, is not he who utters the words of a law, but as Bishop Hoadly said, ‘Whoever hath an absolute authority to interpret any written or spoken laws.'”
Jerome Frank took Gray’s moderate philosophy further. He argued, according to Letwin, that “rules are merely words, and ‘words can get into action only through decisions; it is for the courts in deciding any case to say what the rules mean.” Frank continued,
For any particular lay person, the law, with respect to any particular set of facts, is a decision of a court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. Prior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person and to those facts. Such opinion is not actually law but only a guess as to what a court will decide.
Because the decisions of the judge are more important than the enactments of the legislature, legal realism placed a heavy emphasis on adjudication. The central message of legal realism is compelling (although, I think, in error). Consider: it doesn’t really matter what a legislature says if a judge never enforces it. Although one could say that the judge should base his decisions on the enactments of the legislature, the realist claim that their concern is not what the law should be, but what it is. And although the judge should enforce legislation, the proper study of a legal theorist is what the law actually is, not what it should be. Thus, according to legal realists, a proper theory of law should describe how judges make their decisions.
The study of how judges make legal decisions may have little to do with legislation. A judges decision may be entirely arbitrary, may have more to do with which party was more wealthy or attractive, which argument was more persuasive to him, or even what he had for lunch. In some cases, it is not entirely unpredictable, but at the same time it is never completely predictable.
Notes:
All quotations taken from Shirley Robin Letwin, On the History of the Idea of Law, (Cambridge: Camrbidge University Press, 2005).