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Legal Realism vs. Morality

Anthony D'Amato

• Northwestern University School of Law

“The Limits of Legal Realism.” The Yale Law Journal 87 (Jan. 1978): 468–513.

Legal realism is generally agreed to be that which officials do in fact. The author suggests that one shortcoming of legal realism is its neglect of the normative dimension of the law. For example, in Nazi Germany some persons procured the imprisonment or execution of others for offenses against the regime. After World War II, some informers were prosecuted for such crimes as murder, false imprisonment, and deprivation of another's liberty. The informers' defense was that their actions were legal. A problem is raised when a subsequent law given retroactive application destroys the lawfulness of a statute.

. . . If an entire new set of officials can be imagined in any given legal system, then all conduct is potentially questionable. Is buying a house in the United States slightly illegal to a legal realist aware of the remote possibility that a communist regime might take over the country and prosecute the home buyer as a bourgeois capitalist? Surely the Nazi regime must have seemed very stable in the 1930s. . . For legal realists, the legality of any conduct can be questioned on the basis of imaginable future sets of officials.

Consequently, the author contends, legal realism fails to resolve the “grudge informer” case. Legal realism is tied to the prediction of actions of people who are either in power or who may come into power in a given territory. The dilemma is: “law” has to operate in the present and not retroactively, but new officials may arise and negate the enactments of present officials. The answer, the author feels, must be found in moral, not legal philosophy. Public perception of what is right appears to be the ultimate limit on the authoritativeness of “official” action.

The formal validity of an “immoral” statute may not compel the public to recognize its status as “law,” or the status of enacting officials as authoritative. A prime example might be the reaction of many Southern statesmen to the legislative decree without constitutional amendment by the U.S. Supreme Court in Brown v. Topeka Board of Education (1954). The Court's school desegregation decision was not necessarily recognized as valid since the Supreme Court was not, theoretically and “legally,” regarded as a law-making body. The public's perception of what is right may sometimes limit the authoritativeness of “official” action. “Official” and “authority” conveys a normative dimension rather than naked power and suggests a necessary relation between law and morality.

The notion that popular acceptance of the legitimacy of officials' entitlement to make authoritative decisions is grounded on morality (and not on purely legal construct) might reverse the “might makes right” world view of both positivism and legal realism.