The Contemporary Significance of Legal Realism

Scholars commonly talk about “schools” of thought. A rule of thumb I use when teaching jurisprudence is that a mode of thought deserves the “school” label when it is capable of reproducing itself over time. Thus, if we can speak meaningfully of “second wave” feminist theory or “third generation” law and economics then feminist legal theory and law and economics are schools of thought. By this criterion legal realism was never a school of thought because although its influence is undoubted it also famously did not reproduce itself. There was never a second generation of legal realism.

The failure of legal realism to reproduce itself means we are at several removes, not only from the legal realists themselves, but from their circumstances and ideas. Defining a “realistic” perspective on law in the present is more likely to involve analogues of those ideas rather than the ideas themselves. Defining a realistic perspective on constitutional law is doubly difficult because the realists did not have much to say about it, especially at a theoretical level. Achieving a detached or scholarly perspective on constitutional law in the turbulent circumstances that prevailed in the 1930s and 1940s would have been hard no matter what one’s point of view.

I have been thinking about this ever since I published American Constitutionalism: From Theory to Politics, a book on constitutional theory that some reviewers thought was “realist” although I never made any reference to the legal realists. In addition, I criticized the “attitudinal model” of judicial decisionmaking in political science, a school of thought often viewed as a descendant of legal realism. On further reflection, I can see a mode of thought in the book that could be a contemporary analogue of some legal realist ideas. Partly because of my criticism of the attitudinal model, however, I have never been drawn to a view about the impact of realism in constitutional law that emphasizes the subjectivity of judicial decisions.

So here is another view about the contemporary significance of legal realism for constitutional law, one not drawn from the critique of judicial decisionmaking. First, legal realism maintains that the death of what is often called “classical legal thought” is real and that this mode of understanding American law cannot be revived. There are many interconnected points here, but some of the most important are that going forward, legislation rather than common law will be the chief source of law in the U.S., that forms of law grounded in democratic public authority will have the greatest legitimacy, and that the end of classical legal thought cannot be counteracted through an effort of theoretical will. Second, that the greatest insight into the development of constitutional law is likely to be obtained through a study of its grounding in a democratic form of government. As Judith Shklar once emphasized, the relation between law and politics becomes central, rather than the relation between law and morality. Third, that a focus on democracy inevitably involves an accurate empirical understanding of the way American politics and government works, meaning that political science becomes a central element in the study of the constitutional system. Fourth, following Karl Llewellyn, that a good way to grasp constitutional development is through focusing on change at the institutional level.

On my account, it remains the case that realism proposes a new understanding of the relation between law and politics. Invoking this relation in legal theory is often understood in terms of the debate over critical legal studies, which is unfortunate. From my point of view, the crits were overly fixated on the law side of the boundary and tended to leave politics, much less the views of politics available from political theory and political science, unexplored territory. Making law and politics, rather than law and morality, the central focus should have led to a deeper appreciation that there are many different forms of democratic politics. The crits tended to talk about politics as if it made no difference that the U.S. was a democratic state (but of course those were fighting words in the 1960s and 1970s). For legal theorists, the key move to understanding the usefulness of legal realism in the present is to deliberately avoid these crit-inspired debates in favor of the view of politics encouraged by political science – that there are many forms of politics, some quite favorable to the rule of law and constitutionalism, others less so.

So the view of legal realism encouraged by critical legal studies was a false trail, especially for constitutional law. It remains true, however, that political science is usually the very last social science to be invoked by any legal scholar in search of argumentative support. Perhaps the “real” legal realists, with their generally favorable attitude toward social science, would have been more sympathetic.

I don’t want to conclude on a negative note. Looking at constitutional law through the lens of legal realism means asking what sort of politics is implied by a commitment to constitutionalism and working out the logic of a politics that is supposed to constrain a democratic state. That’s what I tried to do, especially in the first chapter of American Constitutionalism and that’s what Larry Kramer is best understood as doing in the first chapters of his book on popular constitutionalism. I’ll have more to say on that in a future post.