SOCIAL THEORY OF LAW

WEEK SEVEN

Legal realism (LR):

n A US-based movement associated with the activist Supreme Court of Franklin Roosevelt, in which judges were routinely seen as completing, reversing or making legislation.

n The legal realist conception of law is as universally binding but also experimental – i.e. legislators can – and do – enact the wrong measures into the legislation, and judges are needed to find that out by noticing how the law works in particular cases: e.g. does it deter, increase or have no effect on crime? One needs to look at the consequences over time.

n Perhaps the most striking example of LR at work was forced ‘busing’ to achieve racial integration in US schools in the 1960s. The policy was based on research done by the sociologist James Coleman who argued that the best way to bridge the differences between rich & poor, black & white is simply by having the kids from the different groups interact with each other regularly, esp. in the school day.

n Also, often seen as the precursor of the Critical Legal Studies (CLS) because of realism’s critique of formalism, i.e. the legal system manages to survive despite contradictory judicial rulings and cross-cutting legislation. In other words, logical coherence doesn’t seem to matter in the law.

· Thus, legal realism is often seen as ‘descriptive’, recommending that legal evaluation stick to the details of the case at hand (i.e. inductive, stimulus-based approach) rather than the deductive force of the formalists – Karl Llewelyn’s revolt against C.C. Langdell in the teaching of law in the US

· A good example of the legal realist ‘sticking to the details of the case’ would be had the Supreme Court ruled in favour of recounting the votes in Florida in the disputed 2000 US presidential election. Since the facts of the case strongly suggested miscounting. However, the Court instead ruled on more legal formalist grounds, out of concern for the precedent set in future cases.

n Legal realism is stereotyped in jurisprudence as the ‘predictive theory’ (Hart on Oliver Wendell Holmes). But in that case, what does the realist claim to predict about the legal system?

· Hart says that realists want to predict the court’s decision, but realists have been also concerned that the court’s prescribed decision has the desired effect.

· Both aims seem to have been operative in realist thought – concern not only with checking for the biases of the judge but also the biases of society

· In any case, the prediction model is misleading because there is always more than one precedent relevant to a decision – as long as there are multiple contradictory precedents for a ruling, indeterminacy rules and the judges are not to blame for bias or ignoring the law

n Legal realism introduced the teaching of social science into legal education

· Jerome Frank suggested the teaching of psychology, including psychoanalysis, in order to see how lawyers sway juries and judges, and hence to check potential bias.

· Harold Lasswell called for comprehensive ‘policy science’ training that would resolve indeterminacy in the law by getting lawyers to think in terms of implications of decision for the dignity of the individual

· The decline of LR today can be seen in the tendency for universalist and normative conceptions of the law to prefer a revival of natural law theory over LR: e.g. Dworkin

Critical Legal Studies (CLS)

· Distinguishing Legal Realists from CLS

· Legal Realists gained their strength from US law schools, esp. Yale, with strong constitutional law tradition (i.e. lawyers who uphold the objective reality of the law); however, CLS gained strength from laws schools like Harvard with strong corporate law tradition (i.e. lawyers keen to find room for client to manoeuvre in the law)

· Legal realism peaked in the 1930s, the era of New Deal and judicial activism; CLS peaked in the 1980s, the era of disillusionment in the welfare state and the revival of laissez-faire.

· Realists originally tended to think that indeterminacy in the law practically matters only in hard cases when precedents are nonexistent or radically contradictory.

· However, they eventually held that, as time goes on, the background social conditions for adjudication deviate from legislative intent. Thus, even relatively straightforward laws can become difficult to apply.

· CLS thus arose from dissatisfaction with natural law-sounding attempts to resolve legal indeterminacy, e.g. Dworkin’s appeal to ‘principles’ supposedly shared by judges and the people by virtue of an implicit social contract (which includes abiding by whatever decision happens to be made).

n Early CLS work built on legal realist studies of the judicial construction of the public/private law distinction to include a more generalized critique of the efficacy of ‘rights’ in liberal society: i.e. lip service is paid to the idea that people are guaranteed in their contracts, while ignoring underlying power relations.

n Then CLS radicalises legal realism: It extends the idea that legal language is indeterminate in its application to the idea that the very relationship between law and society is indeterminate

· Legal language is targeted by CLS for its mystified view of constancy against a changing world. The idea of law as something that can be imposed uniformly over a jurisdiction is a myth based on too close an analogy between the laws enacted by people and a physical law like gravitational attraction.

· Thus, CLS grants legal realism that judicial decisions are determined (in intent and outcome) by interests, but also these interests change over time, and may well be artifacts of the adversarial nature of the courtroom

· Indeed, the very idea of fixed ‘interests’ may be a construction of the courtroom, a product of the adversarial nature of the proceedings

· Sociologically speaking, CLS is related to labelling theories of deviance and the social construction of reality

· Consequently, the constructed nature of interests also undermines the reformist impulses of legal realists, who typically believed that somehow changing the law and enforcing it ‘consistently’ will improve society

· CLS may be explained as the ideology of the failed welfare state: critiques of the welfare state similarly focus on equity and efficiency as locally variable and hence difficult to show that rational planning brought about whatever positive took place (may just be local factors that luckily conspired to result in something positive or unfortunately led to something negative)

· Nevertheless, CLS remains a progressive legal movement because hope is offered that there is enough uncertainty in legal proceedings that deft manoeuvres in the court room can tip the balance of power in one’s favour

· Roberto Unger, the Harvard law professor who is the chief CLS guru, argues for uphold ‘destabilisation rights’, i.e. for lawyers to make positive use of the inherent uncertainty of the courtroom to promote clients’ interests.

· Ultimately at stake between LR and CLS is the locus for effective social change: Can it occur top-down (LR) or must it always be bottom-up (CLS): i.e. in sociological terms, macro or micro?