Jurisprudential Responses to Legal Realism

Abstract

The intellectual movement we call legal realism is today, I think, most often thought of as having an exclusively negative or critical character. But while this movement historically has had a strongly negative component, it has also had a positive or constructive side as well. It is that aspect of legal realism on which I would like to concentrate in my remarks this morning. But before I get to the positive or constructive side of realism let me just briefly remind you about the other side of realism, the iconoclastic side of the movement, as Karl Llewellyn characterized it many years ago. In the late twenties and early thirties the realists attacked a certain conception of legal science which they associated primarily with the great Harvard treatise writers of the late nineteenth and early twentieth centuries, Beale and Langdell being the particular objects of their intellectual ire. The realists claimed that the Langdellian project, the project of working out in detail in each branch of law a comprehensive and rigorously structured doctrinal science, was impossible to achieve. The law in each of its particular branches is too filled with conflict, with incompletenesses of one sort or another, it leaves too much open, too much to be decided in the particular case, for it ever to be exhaustively controlling in the way that Langdell and his followers assumed it was or hoped it might be made to be.