legal realism

Legal realism argues that law is best understood by observing how judges decide cases, influenced by facts, policy, personality and social conditions, rather than by studying written rules alone. American realists include Oliver Wendell Holmes (law is a prediction of what courts will do), Karl Llewellyn (rule-scepticism) and Jerome Frank (fact-scepticism). Scandinavian realists such as Olivecrona and Ross approached law through psychology and the feeling of being bound.

Realism is a branch of the sociological approach. It is criticised for ignoring that judges do feel bound by rules and for treating law as mere prediction.

Example

Holmes’s remark that the life of the law has been experience, not logic, is the starting point of legal realism.

See also

sociological school · legal positivism · precedent · jurisprudence

Read more in the study notes

• Legal realism: American and Scandinavian (Jurisprudence)
• What is law? Definitions, the idea of law and legal realism (Legal Methods)
• Legal realism: American and Scandinavian (Legal Theory)
• Theories of the judicial role, judicial creativity and judicial policy (Judicial and Legislative Process)
• Jurisprudence: meaning, nature, scope, purpose and value (Jurisprudence)
• Roscoe Pound: social engineering and the theory of interests (Legal Theory)