Legal Realism as an Alternative to Natural Law Theory and Legal Positivism

1. Legal Realism as an Alternative to Natural Law Theory and Legal Positivism • American Legal Realism (Oliver Wendell Holmes, Jr., Jerome Frank, Karl Llewellyn, Benjamin Cardozo)

2. All Positive Laws        Legal Positivism Natural Law         All other Positive Law Unjust Positive Laws Positivist and Natural Law Definitions of Law

3. Legal Realism • There really are no legal rules. Appeals to rules are mere rationalizations of the decisions of judges made on extra-legal grounds. • The discipline of law consists simply in predicting what judges will do. Law is a branch of sociology: studying patterns of behavior.

4. American Legal Realism • The behavior of public officials (mainly judges) as they deal with matters before the legal system. • Law is a prediction about what judges will do in certain circumstances. • “Law in action” often more important than “Law in the books.”

5. Holmes and the Path of the Law • Two negative theses: • Positive thesis:

6. Two negative theses Law is not about morality. Think of law the way the bad man does. Logic is not the driving force in law.

7. Positive thesis: • Law can be improved by being made more rational, by explicitly linking legal rules and practices to desired social ends

8. Sociological Jurisprudence • Examines the law within its social context. • Law is a process of social ordering reflecting society’s dominant interests and values.

9. Different Sociological Approaches • Law inevitably does (and should?) follow dominant social values and interests.

10. Implications of Sociological Jurisprudence • Although moral values influence positive law, no way to say whether this is right or wrong.