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)

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

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.

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.”

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

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.

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

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

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

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