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Subject Area: Political Theory

Legal Realism & A Science of Law - Leonard P. Liggio, Literature of Liberty, Spring 1982, vol. 5, No. 1 [1982]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Legal Realism & A Science of Law

David E. Ingersoll

  • University of Delaware at Newark

“American Legal Realism and Sociological Jurisprudence: The Methodological Roots of a Science of Law.” Journal of the History of the Behavioral Sciences 17 (October 1981): 490–503.

Despite the existence of a growing body of literature on the American legal realism of the 1920s and 1930s, there remain many difficulties in defining and evaluating that movement's effort to demythologize the study of law. The designation “legal realism” has meant many things in existing scholarship, primarily because legal realists formed no school and recognized but a few common prophets.

At its inception, the realist movement participated in the much wider intellectual ferment of the period. The “revolt against formalism” which began just before the turn of the century involved numerous attempts to reformulate the methodology and subject matter of philosophy, government, economics, history, and the law.

John W.Bingham's 1912 article “What is the Law?” signaled the birth of the legal realist movement. In this paper, Bingham advanced four general arguments which were to become central to the realist persuasion: (1) the study of law is within the purview of the general science of government; (2) objectivity is the desirable trait in attempting the study of legal institutions. The outside observer of the legal process can be objective in the best sense of scientific methodology; (3) judges make law rather than discover it; (4) rules and principles are but mental tools used to classify and communicate economically the accumulated knowledge of the law, much as generalizations are used in the natural sciences.

The legal realists generally thought of the law as in flux and as “good” only in so far as it suited the society it purported to serve. In this, they did not differ substantially from the school of sociological jurisprudence as set forth by Roscoe Pound in 1906. However, one plank of the realists' platform did clearly separate them from the supporters of sociological jurisprudence: the realists' call for a temporary divorce of Is and Ought.

While Roscoe Pound and his followers sought a purely descriptive sociology of law in the pragmatic tradition, Pound was always quick to point out that any investigation into legal actuality could not be conducted without regard to the goals of law—or without the selection and organization of facts with some end in mind. “What ought to be,” he wrote, “has no place in physical science. It has first place in the social sciences.”

The realists specifically rejected the “confused” Poundian position on Is and Ought and appealed to the positivist position to justify their temporary separation of fact and value. The empirical investigations of the realists were to be just the first stage in a process of producing better standards for judicial decision making. What they did insist upon was that any theory of justice or conception of proper judicial function be relevant to the necessities and everyday practices of law. Values such as utility and necessity were indeed important, but any evaluation process must be based upon factual information obtainable only through a truly value-free empirical investigation of the legal process.

In the final analysis, the realist movement's claim to true realism lay in its ability to formulate generalizations through the use of modified scientific methods. Those proved more accurately descriptive of judicial behavior than were the ones to be found in traditional analyses. In attempting to achieve this end, the movement concentrated on the observation of official activity and on the social effects of that activity. The ultimate objective of such an endeavor was to build up a set of generalizations descriptive of the legal process—a crude science of law.