Jurisprudence

Realism in Theory and Practice

Karl Llewellyn

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351510394
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Jurisprudence: Realism in Theory and Practice compiles many of Llewellyn's most important writings. For his time, the thirties through the fifties, Llewellyn offered fresh approaches to the study of law and society. Although these writings might not seem innovative today, because they have become widely applied in the contemporary world, they remain a testament to his. The ideas he advanced many decades ago have now become commonplace among contemporary jurisprudence scholars as well as social scientists studying law and legal issues.Legal realism, the ground of Llewellyn's theory, attempts to contextualize the practice of law. Its proponents argue that a host of extra-legal factors--social, cultural, historical, and psychological, to name a few--are at least as important in determining legal outcomes as are the rules and principles by which the legal system operates. Oliver Wendell Holmes, Jr., book, The Common Law, is regarded as the founder of legal realism. Holmes stated that in order to truly understand the workings of law, one must go beyond technical (or logical) elements entailing rules and procedures. The life of the law is not only that which is embodied in statutes and court decisions guided by procedural law. Law is just as much about experience: about flesh-and-blood human beings doings things together and making decisions.Llewellyn's version of legal realism was heavily influenced by Pound and Holmes. The distinction between ""law in books"" and ""law in action"" is an acknowledgement of the gap that exists between law as embodied in criminal, civil, and administrative code books, and law. A fully formed legal realism insists on studying the behavior of legal practitioners, including their practices, habits, and techniques of action as well as decision-making about others. This classic studyis a foremosthistorical work on legal theory, and is essential for understanding the roots of this influential perspective.

REALISM

{1}


A REALISTIC JURISPRUDENCE—THE NEXT STEP ^{a *}

THE PROBLEM OF DEFINING LAW; FOCUS vERSUS CONFINES

The difficulty in framing any concept of “law” is that there are so many things to be included, and the things to be included are so unbelievably different from each other. Perhaps it is possible to get them all under one verbal roof. But I do not see what you have accomplished if you do. For a concept, as I understand it, is built for a purpose. It is a thinking tool. It is to make your data more manageable in doing something, in getting somewhere with them. And I have not yet met the job, or heard of it, to which all the data that associate themselves with this loosest of suggestive symbols, “law,” are relevant at once. We do and have too many disparate things and thinkings to which we like to attach that name. For instance, legislators pass “a law,” by which we mean that they officially put a new form of words on the statute books. That calls up associations with regard to attorneys and judges, and to suits being brought “under the statute.” But it also calls up associations with regard to those sets of practices and expectations and people which we call political parties and machines and lobbies. The former we should want, in some way, to include under the head “law,” I suspect. If we did not, we ought to stop defining and think a little further. The latter—the parties and lobbies—we might have more doubt about, even if we did stop and think. Again, it seems fairly clear that there has been something we could not well dissociate from our symbol “law” in places and times when there was no legislature and even no state—indeed when there was no organization we can call “political” that was distinct from any other organization. You cannot study the simpler forms of society nor “the law” of such forms without looking into the mechanisms of organized control at such times and places; but today you will be likely to distinguish such types of control as non-legal. Of course, you would not disregard them, if you wanted to know anything about “law” that was worth knowing. But you would regard them as background, or foreground, or underground, to your center of interest. They would be something that you would compare and contrast with “law,” I suspect, in the present order of society. And yet I also suspect you would have your hands full if you set about to draw the line between “the two.” Or again, there are gentlemen who spend a good deal of time discussing “the ends of law,” or “what law ought to be.” Are they talking about “law”? Certainly their postulates and conclusions, in gross and in detail, have no need to look like anything any judge ever did; and at times some of those gentlemen seem to avail themselves of that freedom; but it would be a case-hardened person who denied that what they are dealing with is closely connected with this same loose suggestive symbol. What interests me is that when a judge is working in a “well-settled field” he is likely to pay no attention to what such gentlemen say, and to call it irrelevant speculation; whereas when he is working in an “unsettled field” he seems to pay a lot of attention to their ideas, or to ideas of much the same order. This I take to mean that for some purposes they are talking something very close to “law,” under any definition; and for other purposes, they are talking something whose connection with “law” as just used is fairly remote. And this problem of the word calling up wide-scattered and disparate references, according to the circumstance, seems to me vital.

So that I am not going to attempt a definition of law. Not anybody’s definition; much less my own. A definition both excludes and includes. It marks out a field. It makes some matters fall inside the field; it makes some fall outside. And the exclusion is almost always rather arbitrary. I have no desire to exclude anything from matters legal. In one aspect law is as broad as life, and for some purposes one will have to follow life pretty far to get the bearings of the legal matters one is examining. I say again, therefore, that I shall not attempt a definition. I shall not describe a periphery, a stopping place, a barrier. I shall instead devote my attention to the focus of matters legal. I shall try to discuss a point of reference; a point of reference to which I believe all matters legal can most usefully be referred, if they are to be seen with intelligence and with appreciation of their bearings. A focus, a core, a center—with the bearings and boundaries outward unlimited. Pardon my saying it so often; but I find it very hard to make people understand that I am not talking about putting or pushing anything out of the field or concept of law. People are so much used to definitions—although definitions have not always been of so much use to people. I am, therefore, going to talk about substituting a somewhat unfamiliar, but more exciting and more useful focus for the focus that most thinking about law in the past has had.

Two references to the course that thought has taken will help to set the perspective: one, to the tenets of the nineteenth-century schools of jurisprudence; one, to the development of the concepts of rights and of interests.

For the nineteenth-century schools I am content to accept one of Pound’s summaries.¹ It fits with what reading in the field I have done; it is based upon vastly more reading in the field than I shall ever do. With regard to the analytical jurists, Pound stresses their interest in a body of established precepts whereby a definite legal result is supposed to be fitted to a definite set of facts; he stresses the centering of their definition upon the “aggregate of authoritative legal precepts applied by tribunals as such in a given time and place,” and their presupposition of a state which makes those precepts and tribunals authoritative. The historical jurists, on the other hand, he finds making little distinction between law and other forms of social control; with them customary precepts, irrespective of whether they originate in the organs of politically organized societies, come in for heavy attention; central in their picture of law are the traditional techniques of decision and the traditional or customary notions of rightness. (All this, it may be added, without any too close analysis as to what is meant by “custom.”) For the philosophical jurists, finally, Pound finds that “philosophical, political and ethical ideas as to the end of law and as to what legal precepts should be in view thereof” occupy the center of the stage.

I have no wish to put the tenets of these schools to the test, nor to pursue them further. Their value here is limited, but great within its limits: taken together, they hammer home the complexity of law. Each school was reaching for a single definition of all that was significant about law. Each school wound up with a definition which stressed some phases and either overlooked or greatly understressed others. Each had a definition with which, for its purposes, and especially in the hands of its creative thinkers, it made striking headway. But too close attention to any one of the definitions—in its exclusion aspects—for too long, would have meant ultimate barrenness. And I gather that one lesson Pound has drawn from his study of these and other schools has been to insist rather on what goes into the idea of law than on what is to be kept out of it.

PRECEPTS AS THE HEART AND CORE OF MOST THINKING ABOUT LAW

Moreover, you will have noted running through his summary of their views the word “precepts.” This is traditional. When men talk or think about law, they talk and think about rules. “Precepts” as used by Pound, for instance, I take to be roughly synonymous with rules and principles, the principles being wider in scope and proportionately vaguer in connotation, with a tendency toward idealization of some portion of the status quo at any given time. And I think you will find as you read Pound that the precepts are central to his thinking about law. Along with rules and principles—along with precepts proper, may I say?—he stresses for instance “standards” as a part of the subject matter of law. These standards seem to be those vague but useful pictures with which one approaches a wide and varied field of conduct to measure the rights of a particular situation: a conception of what a reasonable man would do in the circumstances, or of what good faith requires, and similar pictures. They differ from rules, though not from principles, partly in their vagueness; they differ from both in being not propositions in themselves, but normative approaches to working out the application of some one term in a major proposition. The principle, let us say, would read: a man must answer for what good faith requires. But a standard (like a concept; like any class-term, loose or sharp) functions chiefly or exclusively as part of a precept. Consequently, it belongs in much the same world. It, too, centers on precepts. But Pound mentions more as law than precepts and standards. Along with the standards he stresses also ideals as to “the end” of law. These I take to be in substance standards on a peculiarly vague and majestic scale; standards, perhaps, to be applied to rules rather than to individual transactions.² Finally, he stresses—and we meet here a very different order of phenomena—”the traditional techniques of developing and applying” precepts. Only a man gifted with insight would have added to the verbal formulae and verbalized (though vague) conceptual pictures thus far catalogued, such an element of practices, of habits and techniques of action, of behavior. But only a man partially caught in the traditional precept-thinking of an age that is passing would have focussed that behavior on, have given it a major reference to, have belittled its importance by dealing with it as a phase of, those merely verbal formulae: precepts.^a I have no wish to argue the point. It will appeal, or it will not, and argument will be of little service. But not only this particular bit of phrasing (which might be accidental), but the use made in Pound’s writings of the idea, brings out vigorously the limitations of rules, of precepts, of words, when made the focus, the center of reference, in thinking about law.³

REMEDIES, RIGHTS AND INTERESTS: A DEVELOPING INSIGHT

Indeed, those limitations appear throughout the current analysis of law in terms of interests, rights, and remedies. The growth of that analysis requires a short digression, but one that I believe worth making. It has to do with the subject matter of the rules and precepts of which men regarded the legal system as made up. Both with us and in the Roman system that subject matter has in the course of time undergone striking changes.

In the earlier stages the rules were thought of almost exclusively as rules of remedies.⁴ Remedies were few and specific. There were a few certain ways to lug a man into court and a few certain things that you or the court could do with him when you got him there. We are concerned here not with why that was (why “can” a court of law give no injunctive relief today?) but only with that it was. The question for the man of that day took this shape: on what facts could one man make use of any specific one of the specific ways of making the court bother another man? And the rules of law were rules about that. They clustered around each remedy. In those terms people thought.⁵ They thought about what they could see and do. Their crude minds dealt only with what they could observe. What they observed, they described.

To later writers this seemed primitive. The later thinkers find a different kind of order in the field of law. Remedies seem to them to have a purpose, to be protections of something else. They could imagine these somethings and give them a name: rights, substantive rights. Thus the important, the substantial rules of law become rules defining rights. Remedies are relegated to the periphery of attention. They are “adjective law” merely—devices more or less imperfect for giving effect to the important things, the substantive rights which make up the substance of the law. The relation of rights to rules is fairly clear: the two are aspects of the same thing. When a rule runs in favor of a person, he has a right, as measured by the rule. Or, if he has a right, that can be phrased by setting out a rule ascribing to him and persons in like situation with him the benefits connoted by the rights. Rights are thus precise counterparts of rules, when the rights are ascribed generally to all persons in a class in given circumstances; and this is the typical postmortemizer’s line of discourse. Or rights, when ascribed to particular individuals in specific circumstances, are deductions which presuppose the rule; the major premise is the general rule on rights; the minor is the proposition hooking up this individual and these circumstances with that general rule. Rights and rules are therefore for present purposes pretty much interchangeable; the right is a shorthand symbol for the rule.⁶

Substantive rights and rules are spoken of as prevailing between people, laymen: one has, e.g., a right to the performance of a contract. It is a heresy when Coke or Holmes speaks of a man having liberty under the law to perform his contract or to pay damages, at his option. It would likewise be a heresy to argue that the vital real evidence of this supposed “right” lies in an action for damages, and that the right could rather more accurately be phrased somewhat as follows: if the other party does not perform as agreed, you can sue, and if you have a fair lawyer, and nothing goes wrong with your witnesses or the jury, and you give up four or five days of time and some ten to thirty percent of the proceeds, and wait two to twenty months, you will probably get a judgment for a sum considerably less than what the performance would have been worth—which, if the other party is solvent and has not secreted his assets, you can in further due course collect with six percent interest for delay. To argue thus would be to confuse the remedy (which you can see) with the substantive right (which you cannot see, but which you know is there—somewhere; people tell you so). The substantive right i...

Table of contents

• Cover Page
• Half title
• Title Page
• Copyright Page
• Contents
• Introduction to the Transaction Edition
• Preface
• Realism
• Institution, Rule, and Craft
• Controlling Behavior: How and Why?
• Men
• Index