American Legal Realism: Key Tenets and Thinkers

American Legal Realism: Llewellyn and Frank

American Legal Realism (ALR), championed by figures like Karl Llewellyn and Jerome Frank (the more radical proponent), represents a proactive defense of the law, emphasizing its operation in the hands of legal practitioners.

ALR is not a homogeneous school but rather a heterogeneous movement. Its proponents did not aim to create a finished, abstract theory of what is right, but rather to influence the practical application of law in America. This movement is fundamentally based on pragmatism and characterized by a deep distrust of abstract reason.

Pragmatism and the Instrumental View of Law

Pragmatism, the philosophical foundation of ALR, holds that:

1. The truth of a statement depends on the usefulness of its consequences, provided they serve certain ends.
2. The meaning of general propositions must be analyzed by considering their practical consequences.

This current is oriented toward the maximization of interests or purposes at play. Realists believe the law is not fundamentally normative but something far more vast and complex. It consists of many elements, including institutions, scientific techniques, language, and, most importantly, judicial conduct.

This perspective leads to an instrumental view of law: the purpose of legal science is not merely theoretical knowledge, but practical function—it is an applied science or technology. The lawyer, through this understanding, can transform social reality. Consequently, the judge assumes a central role in the transformation of law.

The Central Role of the Judge

In Legal Realism, the judge plays a central role, blurring the separation between the creation and application of law.

• The judge should not hide their role in justifying judicial decisions but should make their reasoning explicit.
• The defining concept of law is efficiency (effectiveness), not validity.

However, relying solely on effectiveness poses challenges due to the inherent indeterminacy of legal rules.

A) Karl Llewellyn: Skepticism of Rules

Llewellyn was skeptical of legal rules, arguing that they are often vague and open to multiple interpretations. He emphasized that the focus should not be on the standards written on paper (the "paper rules"), but on the actual rules—generalizations drawn from the empirical analysis of judges' conduct.

Llewellyn sought to identify the objective factors motivating judicial behavior (economic, cultural, social, and so on) to allow for objective forecasting of legal outcomes.

B) Jerome Frank: Skepticism of Facts

Frank was skeptical not only of the rules but also of the facts. For Frank, the finding of facts itself is a subjective activity, dependent on factors such as the judge's ideology and personal biases (dislikes). He argued that the law applied is heavily influenced by these subjective elements.

Frank suggested that the ideal of perfect legal certainty is neither achievable nor desirable, linking this desire for certainty to psychological factors, such as the complex desire for the "father's omnipotence" (a reference to his psychoanalytic approach to legal thought, suggesting a societal regression to childhood dependence on authority).