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Legal Realism and the Separation of Religion from Judicial Reasoning
May, Isaac Barnes
May, Isaac Barnes
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Abstract
Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order.
The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity.
“Man, we would say, must no longer search for God in law, for law is not the place to seek religious satisfaction . . . We would urge that as men have learned to separate religion and science, leaving the latter to its own devices, they must learn not to let religion interfere with law; so far as the administration of justice is concerned, there must be a twilight of the gods.”
Jerome Frank, Law and the Modern Mind (1930).