The Debate over Legal Realism

Jeffrey Thayne

Do judges and courts simply find out what the law says about a situation, or could we say that, in all practicality, courts actually make the law, since they are ultimately where the rubber meets the road?

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 realists claim that the central issue 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. Following are two responses to legal realism.

Edward Levi

Edward Levi said that it is pretense “that the law is a system of known rules applied by a judge.” There will always be ambiguity in law, Levi said, because “of the logical relationship between any general proposition and a more particular one.” There is an inexhaustible number of particular circumstances that can be described by a general statement, and any particular circumstance can be described by more than one general statement. Analogously, this makes it “impossible for any general rule, however clear, to yield only one correct decision.” Thus, Levi disagreed with followers of mechanical jurisprudence or legal formalism, for many of the reasons that legal realists provided. However, he also disagreed with legal realists that judges are the makers of law, rather than the legislature.

Ambiguity in law is thus inescapable, but this is not a bad thing at all, said Levi. It is ambiguity that makes law stable and more acceptable to those ruled by it. For example, Levi said, “a degree of ambiguity makes agreement and acceptance easier. Differences of view, at least within certain areas, can be reconciled under ambiguous words.”

Another reason ambiguity in law is useful, according to Levi, is that it allows “law to remain stable while adapting to changing circumstances. If law had no ambiguity, any change in circumstances would necessitate a change in the law. A constantly changing law cannot qualify as a regime under the rule of law. Thus, a certain degree of ambiguity allows law to remain stable for a longer period of time, and disagreement resulting from ambiguity can be decided in courts as the need arises.

According to Levi, the decisions of the judge are not arbitrary, nor unrelated to legislative enactment, as the legal realists claimed. According to Letwin, Levi claimed that flexibility in law is “possible without destroying law” when judges reason by analogy. Letwin continues,

A precedent is binding on a subsequent case because the court finds the cases to be similar. But as no two cases are ever identical, what constitutes a precedent and how a rule applies to this case are not known until the court has pronounced. This is what makes the Realists sound plausible when they say that the judge cannot “find” the law.

According to Levi, however, it does not follow that the judge’s decision is arbitrary or to be explained only by some irrational cause, as the Realists suppose. The judge arrives at his decision by reasoning; his decision has reasons, not causes. And the system of law dictates that only certain kinds of reasons are appropriate.

It is therefore just as misleading to think that the judge “makes” the law as that he “finds” it.

In this way, Levi responds to legal realists who claim that the judges are the makers of law. He said that judges are required to provide legal rationale for their decisions, the most useful rationale being analogy to similar cases. It seems as though Levi was attempting to forge a middle ground between mechanical jurisprudence and legal realism.

Kelsen

Kelsen presented what he called the “Pure Theory of Law.” He believed that his theory was free from ideological influences. Ideology, he said, is wanting or wishing the world were a certain way. A theory of law, he said, cannot describe law as we wish it to be, but only as it is. “The Pure Theory,” he said, “desires to present the law as it is, not as it ought to be; it seeks to know the real and possible, not the ‘ideal,’ the ‘right’ law. In this sense, the Pure Theory is a radically realistic theory of law, that is, a theory of legal positivism.”

Kelsen’s goal was to produce a scientific study of law. He believed that this requires law to be seen objectively, without reference to values or ideology. Just as one cannot make moral evaluations about the law of gravity or the existence of life on Mars, Kelsen wanted to remove the possibility of making moral evaluations of the existing legal order. Moral evaluations get in the way of describing law the way it is, because we inevitably describe it in the context of the way we want it to be.

According to Letwin, Kelsen sterilized law of its moral quality by claiming that “justice is merely an irrational ideal. … When justice is used in the ordinary sense, it signifies nothing but a rationalization of personal preferences pretending to a spurious universality.” In other words, Kelsen denied the existence of universal standards by which we can measure law. Letwin continues: “A norm can be ‘just’ or ‘unjust’ only for those who do or do not desire what the norm prescribes, although whoever pronounces a social institution to be just or unjust may be unaware that he or she is expressing a merely private interest.”

Kelsen, however, preserved the prescriptive character of law. Although we cannot say what law ought to be, law can tell us what we ought to do. This is because Kelsen describes law as prescriptive norms. Letwin explains, “A norm states what ‘ought’ to be done, but to describe the law as a system of norms is to say not what it ought to be, but only what it is.”

According to Kelsen, “A valid law should be obeyed … because it has been issued by someone who is authorized by a higher norm to make such a law.” To avoid infinite regress of norms, Kelsen presuppose a hypothetical norm that was never enacted (the first mover, in a sense). This presupposition is that of a “law-making authority whose norms are, by and large, observed, so that social life broadly conforms to the legal order based on the hypothetical norms.”

In the end, Kelsen attempted to create a scientific study of law, one that did not require moral evaluations of the present legal system, but simply described the way it actually functioned.