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Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Justice Benjamin Cardozo, and Wesley Hohfeld). The chief inspiration for Scandinavian Legal Realism many consider to be the works of Axel Hagerstrom.
The most famous representatives of American Legal Realism were Karl Llewellyn, Jerome Frank, Robert Lee Hale, Felix Cohen, Thurman Arnold, Hessel Yntema, Max Radin, and Leon Green. The most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt. No single set of beliefs was shared by all legal realists, but many of the realists shared one or more of the following ideas:
- Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast.
- Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropological approaches to the study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of this tendency.
- Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.
Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics (scholars such as Richard Posner and Richard Epstein at the University of Chicago). In addition, legal realism eventually lead to the recognition of political science and studies of judicial behavior therein as a specialized discipline within the social sciences.
See also
External links
"Legal realism"