Front Page Titles (by Subject) TEN: Later Forms of Juristic Realism - The Ideal Element in Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
TEN: Later Forms of Juristic Realism - Roscoe Pound, The Ideal Element in Law 
The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002).
About Liberty Fund:
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
Later Forms of Juristic Realism
In the United States economic determinism ran into psychological realism and skeptical realism and largely merged in the latter. But economic realism has tended to have more of a positive program than the other two.
Psychological realism is a development of economic realism in the light of Freudian and behaviorist psychology.1 Its adherents assume that psychology has completely overthrown the jurisprudence of the past. They hold that it is psychologically impossible to do what men believed they were doing by means of law. They hold that law (in the second sense) is not an agency of promoting control over internal nature holding down the prejudices and individual inclinations of judges and officials which might lead to arbitrary and unequal and unjust exercise of the force of politically organized society. It is only what judges and officials do, motivated by their prejudices and individual inclinations.2 Thus psychological realists have been coming to much the same doctrine as the economic determinists, but on a psychological not an economic basis. They insist on the non-rational element in judicial and administrative action as reality and the rational element as illusion. Where the last century stressed uniformity and predictability and certainty and ignored the fallings short of these ideals in practice, they stress the lack of uniformity and the uncertainties, and the influence of personal and subjective factors in particular cases. They assume that mechanical application of rules attaching a definite detailed legal consequence to a definite detailed state or situation of fact is the juristic ideal and that the quite different processes of choice of starting points for analogical reasoning and of application of standards are processes of applying rules and are governed by the same juristic ideal. They attribute to individual psychology the departures from the ideal of applying rules which are necessarily involved in judicial and juristic reasoning from analogy and application of standards.
Einsteinian relativist physics, with its challenge of what had been supposed to be the fixed order of the universe, and Freudian psychology, with its demonstration of the role of the wish in what had passed for reasoning,3 came as a powerful reinforcement to economic determinism in the spread of Marxian ideas after the Russian revolution. It would be quite in the spirit of psychological juristic realism to suggest that those who sought a new social order after the first World War wished to find in the legal order the camouflaged class tyranny and in the judicial process the hypocritical pretense which would justify their overthrow. It might be suggested that they wished to see a complete class domination for the future and so were able to see one more assuredly in the past. It might be suggested that they wished to see an administrative absolutism wielded by a class with which they considered themselves allied and so were the more readily persuaded that it is impossible to think objectively. One might even suggest that on their own doctrine they labor under a like impossibility.4
No small share in bringing about a reaction from nineteenth-century juristic thought must be charged to a type of law teaching which sought to reduce the whole body of legal precepts to rules in the narrower sense and the whole judicial process to mechanical application of rules analogous to rules of property. It is very doubtful whether this was ever carried so far or was so generally prevalent in American law teaching as the realists have been asserting or assuming. It did govern the writing of cyclopaedias of law and a type of text book for practitioners and this to some extent affected the work of courts with overcrowded dockets and no time to listen to competent oral argument. Also it found support in the writing of analytical jurists who assumed a statutory rule of property as the type of a law and that law was an aggregate of such laws.5 Judges and practicing lawyers, on the other hand, knew better.6
In its extreme form, psychological realism conceives of each item of the judicial process as shaped wholly and inexorably by the psychological determinants of the behavior of the individual judge. It thinks of the judicial process in terms of “the judge” and is largely taken up with consideration of the abstract psychology of the abstract judge as this is dogmatically assumed to dictate every item of concrete judicial behavior. In a less extreme form it conceives of determination by factors of individual psychology which are largely undiscoverable, and hence of judicial action as unpredictable “in a case of any novelty whatever.”7
So long as there have been judges and counselors the counselor at law who advises clients has known that he must bear in mind to some extent the idiosyncrasies of particular judges. But he has known also that in the case of appellate and reviewing tribunals such individual idiosyncrasies will be neutralized in the judicial consultation room. The cases which make him the most trouble are those involving the application of a standard and those where there are no near analogies and many remote analogies with no clear guide leading to one more than another. Looking only at the formulas announced tentatively in the development of a doctrine by judicial inclusion and exclusion, there may seem to be a high degree of unpredictability as to where lines would ultimately be drawn. But looking at the results in each case, not at the successive attempts to generalize from the particular result in the case in hand to a universal precept, as a rule it is by no means difficult to put the actual result in the order of reason and be as sure as one can be in any human practical activity how cases of that sort, even if they involve some degree of novelty, will be decided. If this were not true our complex economic order could not stand.
Even when thought of as merely a theory of the judicial process, psychological realism is too dogmatically narrow, ignoring the effect of a bench of judges upon judicial behavior, the checks upon judicial action and the constraint exercised by professional criticism and opinion, the toughness, as Maitland calls it, of a taught tradition,8 and the effect of received ideals of the social and legal order, and reaction each upon the other of received traditional ideals and subjective ideals. It is significant to note the relative narrowness and rigid adherence to reduction of reasonableness in the application of standards to fixed rules on the part of elective short-term state judges in their treatment of social legislation between 1880 and 1910 with the relative breadth of view of appointed judges on the same questions at the same time.9 Current realist doctrine would require us to expect the reverse.
Investigation of the psychology of courts and study of the psychological bases of the persistence and vitality of a taught tradition systematized in received treatises and studied both in the formative student period and, in the case of judges, continuously during long periods of practice before courts and later of sitting in them, is a more practical and profitable program for psychological realism than the elaborate study of the relation of particular individual judges to particular individual cases which has been suggested as the foundation of a science of law.10 A less rigorously behaviorist method, tempered by the consideration that we must take account also of the restraints upon non-rational individual behavior and that judges as a rule are not likely to do better than they are expected to do, may well yield useful results. There was a psychological efficacy in the nineteenth-century ideal of the judicial process.11
Frank has urged that what he calls the “basic legal myth” of the possibility of certainty, uniformity, and predictability in the legal order and in the judicial process is brought about by a need which the grown man feels for rediscovery of his father “through father substitutes.” He says: “The law—a body of rules apparently devised for infallibly determining what is right and what is wrong and for deciding who should be punished for misdeeds—inevitably becomes a partial substitute for the Father-as-Infallible-Judge. That is, the desire persists in grown men to recapture, through a rediscovery of a father, a childish, completely controllable universe, and that desire seeks satisfaction in a partial, unconscious anthropomorphizing of law, in ascribing to law some of the characteristic of the child’s Father-Judge.”12 This might be compared with Dr. Ranyard West’s proposition that the individual needs the law to keep his tendency to aggressive self-assertion to satisfy his desires in balance with his likewise deep-seated tendency toward adaptation to life in groups and associations and relations.13 The argument from this starting point may be less iconoclastic.
Social psychology has been refuting Marx’s proposition that law is only a means by which a dominant class enforces its self-interest upon a class which it is exploiting. It has made clear that the control of individual aggressiveness exercised by organized society is not merely something set up by a ruling class or group to check the activities of a restless group of have-nots or even of a relatively small criminal class. Although the criminal law commonly stands to the layman for the whole, it is not the most significant part of the law. The civil side which adjusts the everyday relations and orders the everyday conduct of normal men is in a highly developed society the most significant part. Llewellyn has shown convincingly the social need of law in that if conflicts of individual expectations are not adjusted societies are disrupted.14 But if there are not well conceived adjustments, if determinations of controversies are unequal, arbitrary, or prejudiced the unwillingness of men to be subjected to the arbitrary will of others leads to upheavals which impair the social order. No less, however, law is a recognition by social man of one of his chief needs as an individual, namely, to hold back his aggressive urge and adjust it to the exigencies of his social urge.
There is, we may assume, an urge in man, in all the diverse conditions of life, to gratify so far as may be, the different aspects of his nature. The term “instinct” has been overworked and made to cover so much that one hesitates to use it. But using it to mean certain fundamental tendencies of human behavior, appearing in childhood and manifest throughout life, there are two classes of these tendencies, one of which may be called the aggressive or self-assertive instinct, the other which may be called the social instinct. Man’s nature is not a harmonious one except as he learns to bring about a working balance through training and experience of life in society. The aggressive or self-assertive instinct leads him to think of his own desires and demands for himself alone and to seek to satisfy them at the expense of others and to overcome all resistance to them. Bringing up and education seek to teach control of this self-assertive instinct. But it is deep-seated and bringing up and education require a backing of force. The exercise of that force, however, itself requires control, since the aggressive instinct of those who wield it may govern its application. Thus we get a problem of balance of force and of control of force which is at the root of an internal contradiction in criminal law and criminal procedure, from which we have thus far found no escape and is in the background of most of the difficulties of government and the legal order. This is external to the man himself. Aggressive self-assertion even to the point of violence is potential in almost every one. It is exercised in different men in different ways and in different degrees, often spasmodically and contrary to their normal intention and mode of conduct and even in ways for which they find it difficult to account. It runs counter to the social instinct of the individual so that he usually repudiates it. But it exists potentially and is frequently manifested. Hence there must be force somewhere to keep it in control. It is a task of social control, and hence of the highly specialized form of social control which we call law, to control this individual tendency to aggressive individual self-assertion to satisfy individual desires and demands and expectations. This is brought out strikingly whenever the force of politically organized society is for a time suspended. When, for example, in case of revolution or police strike or sudden great catastrophe, conflagration, flood, or earthquake, the coercive agencies of politically organized society are for a time in abeyance, violence seems to break out spontaneously.
In the science of law this task of social control is expressed in one way in the theory of interests. An interest, in this theory, is defined as a desire or demand or expectation which human beings either individually or in groups or associations seek to satisfy, of which, therefore the adjustment of human relations and ordering of human conduct must take account. Such desires or demands or expectations to have or use things or to do things, become significant whenever a number of human beings come in contact. There is a conflict or overlapping of desires or demands or expectations. The aggressive self-assertion of individuals to satisfy them requires restraint, and the law must determine which of them are to be recognized and secured, and within what limits, and must order their satisfaction with a minimum of friction and waste. So much for the task of the law from the standpoint of the social order. But the restraint of aggressive self-assertion by social control with an ultimate recourse to force is not only a need of society, it is need of the individual himself.
On the other hand, all normal men desire and show an aptitude for some sort of life in groups and associations and relations, and the tendency toward this is as fundamental, as deep-seated, as that toward aggressive self-assertion. It might be called an instinct of realizing oneself through others as the aggressive instinct is one of realizing oneself against others. It is manifest in the power of the individual conscience, and it is partly through the social instinct and this manifestation of it and partly by social control external to the individual that society succeeds in harnessing the individual instinct of aggressive self-assertion.
I am not competent to say that either one of these instincts is more original and fundamental than the other nor whether there is any original or fundamental balance of them. But whether there is or is not such an original balance, or whichever of the two is original and fundamental, it seems to be true of human behavior that it goes on normally as if in general the social instinct prevails over the instinct of self-assertion. The universality of groups and associations and relations, existence of society and the history of civilization seem to show it. What McDougall calls the instinct of gregariousness and loyalty and veracity as tendencies connected with it,15 is one way of putting this. Aristotle saw it long ago when he said that man was a political animal, meaning that men naturally associated themselves in organized societies.16 Indeed, Aristotle pointed out that otherwise man was the fiercest of beasts.17 Without social control his aggressive self-assertion would prevail over his cooperative social tendency and civilization would come to an end. Society does in this sense master the individual, and this is what is meant when we say that one side of civilization is conquest of internal nature. It is this normal condition of development of the social instinct or tendency to keep in restraint the aggressive self-assertive instinct or tendency which marks civilization. This, I suppose, is what the Neo-Hegelians have in mind when they say that the task of the legal order is to maintain, further, and transmit civilization. It is what has made possible the conditions under which men have been able to gain continually increasing control over internal nature and harness it to the use of mankind and so to inherit the earth and maintain and increase that inheritance.
Nineteenth-century philosophers of law, seeking to base their whole theory on the idea of liberty, looked on agreement or contract and its analogues as the significant legal institutions. These institutions realized liberty as an idea. It was said that the drawing up of contracts, agreements, family settlements, and conveyances was legislative in character. The parties made law for themselves.18 In the present century, with the rise of social philosophies of law, instead of this, we hear of law as adjusting relations in order to maintain social interests, that is, the desires and demands and expectations asserted in title of social life in civilized society; of ordering conduct in order to maintain the general security, the security of social institutions, and the conservation of social resources. Instead of individual freedom we hear of the social interest in the individual life. Instead of the individual moral unit we hear of the social interest in the general morals. Instead of individual self-direction by the individual conscience, we hear more of social control. But I suspect this is as one-sided in one direction as the nineteenth-century mode of thought was in another. In a sense law maintains one set of moral values against another. It results from workable adjustment of human desires and demands and expectations whereby those proceeding upon one instinct are harmonized in action with those proceeding upon a conflicting instinct prevailing in the mind of the individual at another time. In this way law gives external support to the social instinct against antisocial aggressions resulting from the self-assertive instinct. In this respect the philosophical jurists of the last century were by no means wholly wrong when they thought of government and law as extensions of individual self-control.
Recently Dr. West has written instructively of the “inevitability of prejudice.”19 By prejudice he means “judgment influenced and distorted by emotion, especially by unconscious emotion,” and the question he puts is how far prejudiced emotional judgments of mankind can be corrected. He comes to the conclusion that when certain facts of human nature are fully recognized we may be able to “organize our fundamental human relations securely enough to withstand the disintegrating effect of human passion inadequately controlled.”20 Law brings the two instincts at the roots of human behavior into harmony. Why can one not believe that as in the history of civilization we have been able to achieve a considerable degree of control over non-rational aggressive self-assertion so we may be able to achieve a continually stronger control over prejudice and arbitrariness in the judicial process? Indeed if we compare the judicial process in action in sixteenth-century England with what goes on in English courts today we must admit that great progress has been made. Likewise comparison of the law in action in the era following independence with the law in action today makes it clear enough that the working out of a body of American law has enabled courts with the aid of a received authoritative technique to achieve a high degree of objective determination of controversies. Control of the instinct of aggressive self-assertion has not eliminated wholly occasional outbreaks of it in action. Control of the inevitable element of prejudice in arriving at judgments will not wholly eliminate it in action. But if it can be held, and I think we do succeed well in holding it under reasonable control, we are not bound to give up our belief in a judicial process guided by law in the second sense because in times and places it is not as effective as we could wish and perhaps cannot so far as we can foresee come up in practice to one hundred percent of what we postulate.
Combining psychological realism and the economic interpretation, might it be said that class interests bring about wishes and the wishes operate in the judicial and juristic and administrative and legislative processes? Might it be said that the Freudian wish takes the place of the ideal; that an ideal is a picture of things wished for? If the decisive thing is taken to be the wish, could it be said that a wish on the part of judges, brought up in the common law tradition and thoroughly trained in the principles and technique of that system, to conform the administration of justice to the received ideal may be effective in the judicial process as against unconscious wishes the tradition calls on them to repress? Is that ideal given shape and content by the self-interest of an economically dominant class, or is it something developed in the history of civilization which, as a taught tradition, is able to impose a check upon self-interest of every kind?
It was a distinct advance when Jhering’s demand for a jurisprudence of actualities led to looking at legal precepts and institutions and doctrines with reference to how they work or fail to work and why. In keeping to this attitude the realists have been carrying on one of the best achievements of jurisprudence in the present century, namely, looking at the legal order, the body of authoritative grounds of or guides to decision, and particular precepts, institutions and doctrines, functionally. Also there is an advance in their frank recognition of analogical or non-rational element in the judicial process which the legal science of the nineteenth century deliberately ignored. But many of the realists ignore and all minimize the logical and rational element and the traditional technique of application which make for stability and uniformity in spite of disturbing factors. There is not and cannot be the perfect uniformity and mechanical certainty of result which the last century postulated. But it was postulated as an ideal of what we sought to attain. An ideal of a process does not presuppose complete theoretical realization in practice. It guides us in seeking to attain the best that we can. The dogma of a complete body of rules, to be applied mechanically (more held where there were codes and under the Roman-law tradition than where the common law obtained) was quite out of line with reality. It is no less dogmatically unreal to shut one’s eyes to the extent to which the administration of justice does succeed in attaining certainty and uniformity and predictability through rule and form and the extent to which the economic order rests thereon. It is no less unreal to refuse to see the extent to which authoritative legal technique, with all its faults and in spite of mishandling in less than ideal hands, applied to authoritative legal materials, with all their defects, keeps down the alogical or unrational or holds it to tolerable limits in practice. In the field of the economic life (in the stricter sense) there is incomparably more significance on the one side than on the other. It is this significance which makes legal and economic development go hand in hand.
Skeptical realism21 carries further the rejection of law in any other sense than the aggregate of the items of judicial and official action. Law is what judges and administrative officials do and what judges and administrative officials do is law. In this extreme rejection of what jurists had thought of as law from the beginnings of a science of law, Einsteinian relativist physics and Neo-Kantian epistemology with its doctrine of irreducible antinomies and the ultimate role of the force of politically organized society cooperate with economic determinism and psychological determinism. Many things lie behind any particular item of human behavior and so of official behavior. But two things are excluded from the motivation of judicial behavior, namely, the body of authoritative guides to decision and the received authoritative technique of developing and applying them. That these in any way determine the actual course of judicial decision or administration is held to be a mere pious wish of jurist or lawyer or else superstition.
There is more or less complete skepticism as to the systematic character of official action as a quality of the legal order,22 as to the role of legal precepts in the judicial process,23 and as to the actuality or even possibility of any degree of objectivity in the administration of justice.24 Frank says: “The earlier case means only what the judge in the later case says it means. Any case is an authoritative precedent only for a judge who, as the result of his own reflection, decides that it is authoritative.”25 Again, he says: “The rules a judge announces when publishing his decision are, therefore, intelligible only if one can relive the judge’s experience while he was trying the case which, of course, cannot be done.”26 Likewise Yntema says: “Of the many things which have been said of the mystery of the judicial process, the most salient is that decision is reached in an emotive experience in which principles and logic play a secondary part. The function of juristic logic and the principles it employs seems to be like language, to describe the event which has already transpired.”27
It will have been noted that the foregoing extracts are in terms of decisions of a single judge sitting at first instance. But as the law is today, only the decisions of a bench of judges of ultimate reviewing jurisdiction can make the law. In the case of the average American bench of seven judges sitting on appeals in the highest state court it would be hard indeed to find a common denominator of emotive experience for each case. But if the result reached departs from the norm as shown by the general course of decision in common-law jurisdictions the courts in other states will point this out and refuse to follow it, and if the emotive experience of a judge of first instance leads him to a result departing from the norm either in choice of starting point for reasoning, in developing or interpreting the starting point or in applying the precept found, his judgment or decree will be reviewed by a bench of judges and very likely be upset.
That skeptical realism has had its chief development among American teachers of law is due to a condition peculiar to American law and to American law teaching. In the United States, forty-eight states have each their own legislation and, as to questions of private law, their own ultimate law-finding agency in their highest courts. The federal government has also its own system of courts and had until recently an ultimate law-finding authority for much of private law for those courts.28 Beneath all this there is a fundamental unity through the received English common law, received common-law technique, the common use of doctrinal treatises, and the persuasive authority of the decisions of other common-law courts. But while there is consistency and uniformity in each state, if we seek to think of American law as a unit there is great diversity in detail because of great diversity of local geographical, economic, and social conditions and of historical background, and even much diversity as to elements of the population coming from different parts of the old world. Thus in any state where a question arises for the first time there may be many competing views of equal authority from which to choose. When law was taught in local schools there was little confusion in the local law to attract attention. But as it has come to be taught more and more in schools with a student body drawn from the country at large, and teachers have sought to teach an American law as a whole, there has sometimes seemed a hopeless confusion in subjects in which the several states have diverged in their working out of details. Thus as a teacher sees it there is a want of certainty and predictability and uniformity which the lawyer does not find in the particular jurisdiction in which he practices. He knows which of diverging lines of persuasive authority are likely to be followed in his jurisdiction even if the teacher cannot find one which he can hold likely to prevail universally.
There are three possibilities in the discussions of law in terms of the judicial process which go by the name of realism. Realism might be simply a theory of how the judicial process and the administrative process actually take place. If so, like most juristic theories it contains a partial truth. It is a theory of the whole process in terms of the administrative element in the process, and to some, but less extent, of the more or less legislative element involved in “finding the law” by analogical reasoning. Or, second, it might be a theory of what ought to take place in the operation of the judicial process. It might consider that process from the Marxian standpoint of a class enforcing its self-interest. It might assume that a class rapidly rising into power ought to bring about an administration of justice avowedly in its sole interest, and that such is, on the whole, what we must come to in theory and what we ought to come to in practice. Or, third, it might join psychological determinism in a theory of what must be psychologically and what is psychologically impossible in the judicial process. In that event it needs much correction from a theory which will take account of the role of a taught tradition in legal history and experience of the effect of such a tradition upon the judicial process throughout the common-law world.
As has been suggested above, the situations which give aid and comfort to the skeptical realist are, first, cases of the application of standards, and, second, where choice becomes necessary between starting points for legal reasoning which have equal authority, and the question is from which to begin, there being no precept to determine this. If we start with the nineteenth-century postulate of analytical jurisprudence in the English-speaking world, of the French exposition of the civil code in the last century, and of the Pandectists, the postulate that there is a complete system of legal precepts, either expressly or potentially covering every case, and that finding a rule for a new case is nothing more than a logical drawing out of a precept logically contained in or presupposed by some expressed precept—if we apply this postulate to increasingly common situations where the law must be “found”—it may seem to refute any idea of a uniform, predictable course of judicial action. But even in this type of case judicial action is by no means so completely at large or so completely a matter of individual behavior tendencies of some particular judge as skeptical realism has assumed.29 The assumption ignores the decisive role of received technique and received ideals.
There is a better basis for the demand of men that there be certainty and predictability in the judicial process than persistence of the child’s desire to be led.30 As Saleilles puts it, “the demand of the social order, represented by the rigidity of legal principles as well as by the requirements of individual justice will ever be recognized.”31 In times of liberalization, following upon changes in the social and economic order, the balance between the general security and the individual life becomes disturbed. It is likely to incline for a time strongly toward the individual life, and so lead to a somewhat blundering or unsystematic individualizing judicial process until new practicable generalizations have been worked out. One who looks at the legal phenomena of a time and place only in terms of the phenomena themselves, may well be deceived into thinking them less possible of being put in the order of reason than they are.
A common assumption of the realists is that those who have been unwilling to go with them to the full length of their doctrine seek to rule out discretion from the legal order and from the judicial process. Frank’s argument32 assumes that one who in speaking of law in the sense of the body of authoritative precepts is speaking also and at the same time of law in the sense of the legal order and of law in the sense of the judicial process. A judge may exercise discretion only in case or under circumstance where a legal precept requires or permits it. It may be that the law in the second sense requires that discretion in the particular case be guided by principles as in the discretion of a court in granting or denying equitable remedies. But when such guidance is not prescribed legal precepts still require a judge truly to exercise discretion. If he acts arbitrarily his action may be reviewed for abuse of discretion. Thus when a judge is empowered to and does exercise a personal discretion, while his action is not wholly at large, yet, since there is an administrative element in the judicial process, he goes outside of law in the second sense of the term but not outside of his duty or authority under the legal order. Discretion is contrasted with law in the second of its three senses, as one of the instruments of law in the first sense, that is, the legal order. Because one points out this contrast, using the term “law” in the second sense, it does not follow that he is excluding or seeking to exclude discretion from the legal armory.
Because men have believed they could do great things in the way of social control they have been able to do great things. It is idle to say that law in the second sense is futile deception, is a myth, is a superstition, when we see how the work of the Roman jurisconsults from the first to the third century, codified by Justinian in the sixth century, developed in the universities of Continental Europe from the twelfth to the nineteenth century has served and serves today to adjust relations and order conduct in half of the world and was made almost overnight to serve as the basis of a modern regime of justice in Japan. Equally it is idle to make such assertions when we see how experience of determination of controversies in the King’s courts in medieval England developed into a reasoned tradition by teaching in the Inns of Court, and further developed by the courts in nineteenth-century England and America, could go round the world as basis of a system of law for the English-speaking peoples. It is idle to say that these two great bodies of rationally developed experience represent nothing more than human self-deception. It is idle to say that the arbitrary, personal, subjective element in magisterial behavior, which these traditions have for centuries shown us how to subdue, is the reality and this systematized and rationally developed experience only sham used to cover up unrational particular determinations resulting from individual prejudice and class self-interest. Experience of social control by the judicial process guided by law is as objectively valid as engineering experience.
More than once it has happened that judges appointed to turn the course of the law out of its channel have found themselves carried along by the current of the tradition. It has become fashionable to sneer at Story, who was renowned in his day as a great scholar and great lawyer, whose books are still standard not only in America after one hundred years but throughout the English-speaking world and even in Continental Europe. He is now held up as an example of reprehensible legal orthodoxy. No doubt he did cooperate with Kent and Marshall in putting our formative American law in the channel of Anglo-American legal development. But it should be remembered that he was appointed to the bench of the Supreme Court of the United States as a young radical, a follower of Thomas Jefferson,33 and only proved, what has repeatedly been demonstrated, that a good lawyer will keep law and politics in separate compartments; that he may be a radical politician and yet when he becomes a judge will keep to the received legal tradition.
Morris Cohen34 asks whether the fellow servant rule and the doctrine of assumption of risk would “have been invented if Lord Abinger and Chief Justice Shaw had been laborers?” Waiving a question as to his assumption that the rule and doctrine were inventions of these judges, for, as Mr. Justice Holmes pointed out and has been set forth in a prior lecture,35 they failed to invent exceptions to established doctrine instead of inventing new doctrine, one might retort by asking whether he means laborers untrained in law or laborers who had been thoroughly trained in the common law and common-law modes of juristic thought, and had after many years of practice in common-law courts been raised to the bench and been for years applying the common law to the decision of cases? At any rate class self-interest does not seem to have persisted and affected the judicial process in the case of two great judges in English judicial history—Lord Tenterden36 and Lord St. Leonards,37 each the son of a barber.
Theories of judicial decision may be worked out for decision at first instance or for decisions of courts of review (which make precedents) or for both, or may be directed to the law-finding or law-declaring function of appellate courts, or to the judicial process as a whole. Huntington Cairns has given an interesting discussion of four theories.38 Bacon, who as Chancellor, sat at first instance in the Court of Chancery and as one of the judges of first instance in the Court of Star Chamber at a time when equity had not yet been systematized and the law of misdemeanors administered in the Star Chamber was formative, is giving us an idealized version of the judicial process in those courts.39 He was concerned with the law-finding function of courts for which a body of authoritative guides to decision had still to be developed. Cairns makes an excellent summary of his theory: “Bacon took the view that in order to achieve justice in the cases not clearly provided for by statute or otherwise the judge has three courses open to him. He may proceed on the analogy of precedents, or by the use of examples, or by his own sound judgment and discretion.”40 Cardozo was writing of the process of finding the law in an ultimate court of review where it was necessary to fill gaps in law in the second sense—as Holmes put it to make law interstitially41 —and was pointing out the difficulty of determining how far a court can go, when filling a gap in the law, “without going beyond the walls of the interstice.”42 This, Cardozo considered he must learn for himself. “Logic, and history, and custom, and utility, and the accepted standard of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance or value of the social interests that will thereby be promoted or impaired.” How to weigh these elements of decision will “come with years of habitude in the practice of an art.”43 It will be a matter of intuition born of experience. With this Cairns contrasts what he terms my “severely analytical”44 theory of judicial decision. But Cardozo and I are not treating of the same thing. He is thinking of finding the applicable precept where because of a gap in the body of authoritative precepts one has to be made for cases like the one in hand. I was thinking of the steps in the judicial process as a whole, and put it thus: “Supposing the facts to have been ascertained, decision of a controversy according to law involves (1) selection of the legal material on which to ground the decision, or as we commonly say, finding the law; (2) development of the grounds of decision from the material selected, or interpretation in the stricter sense of that term; (3) application of the abstract grounds of decision to the facts of the case. The first may consist merely in laying hold of a prescribed text of code or statute, or of a definite prescribed traditional rule; in which case it remains only to determine the meaning of the legal precept, with reference to the facts in hand, and to apply it to those facts. It is the strength of the administration of justice today that in the general run of causes that have to do with our economic life this is all that is called for, or so nearly all, that the main course of judicial action may be predicted with substantial accuracy. But it happens frequently that the first process involves choice among competing texts or choice from among competing analogies so that the texts or rules must be interpreted—that is, must be developed tentatively with reference to the facts before the court—in order that intelligent selection may be made. Often such interpretation shows that no existing rule is adequate to a just decision and it becomes necessary to formulate the ground of decision for the given facts for the first time.”45 Cardozo was speaking of the proposition in the last sentence. Cairns thinks that I err at one extreme and Cardozo at the other. He is too elusive while I am too analytical. He prefers Dewey’s analysis.46 As Cairns applies Dewey’s analysis, “The vital point is that the judge does not first find the facts, then ascertain and develop the law, and then apply the result to the facts. He does even not know what the operative facts are until the apparently relevant facts have been tested in conjunction with the ideas that forecast the solution. He does not know what the law is until he has settled upon the solution which he believes he will accept. At that point the judge then ‘finds the law,’ and it may well be that the provisional solution will have to be abandoned if the ‘law’ as the judge ‘finds it’ will not permit the proposed solution. The judge will then seek a different solution and again ‘find the law.’ This process will continue until a solution is found which will withstand the test of the law, the facts, and any other materials the judge deems relevant.”47
But is this a statement of the judicial process or is it rather one of the administrative process? The administrative official has a policy to enforce. He looks upon his problem in the light of that policy and endeavors to effectuate the policy so far as the law will let him. No doubt he will form an idea of the appropriate determination, shape the facts to it, and seek to find how to work his predetermined solution into the legal limits of his authority. But cases do not come to a court in that way. In an appellate court the case comes before the judges on a record in which the facts have been found in the verdict of a jury or by the findings of a trial judge in a decree or upon trial without a jury. Where the case is in a court of first instance, if there is trial to a jury, the issues of fact are settled in advance by the pleadings and the trial judge must instruct the jury as to the legal result of finding each issue one way or the other. He may put special questions to the jury as to details of fact. If the case is in equity very likely the facts will be found by a master in chancery and his findings confirmed upon exceptions before the judge comes to consider and apply the law. But where the case is tried to the court without a jury in any event the issues of fact will be defined by the pleadings, or in the most recent American practice in pretrial proceedings, and the court will be required to make findings of fact and separate findings of the law applicable thereto. Thus even the judge at first instance either has the facts found for him by jury or master or referee, or finds them specially himself, and then proceeds to apply the law to them as he finds it. There was a time in some American states when inadequately staffed courts of review with crowded dockets badly in arrear left many cases to be decided by single judges in a hurry and the administrative method was too often employed. But it was reprobated and has never been the received method in the common-law world.
We must not ignore the power of ideas. The economic interpretation and psychological realism themselves are ideas. In jurisprudence we are dealing ultimately with what ought to be. We are seeking to attain and maintain the ideal relation among men. Ideas of what is affect ideas of what ought to be and vice versa. Ideas of what ought to be are apt to be idealizings of what we take it is. We should be careful not to take the ills we encounter for the significant thing and make our picture of what is from them rather than from what we succeed in doing to overcome them. We should make our picture of what ought to be from our achievements rather than from our failures. It is a strange kind of liberalism that would return to absolute rule because of an assumed futility of attempts at elimination of the features of arbitrary exercise of the powers of politically organized society which it had been the job of liberalism to oppose from the beginning.
Political absolutism assumes that the superman leader will be all-wise and hence will always know what the general good demands and how to use his unlimited powers to that end. It assumes that he will not only know how to use them toward the general good but will habitually and steadfastly so use them. In the same way administrative absolutism assumes that any given administrative agency will be made up of and directed by experts of infallible judgment. They, too, will always know in what the general good consists and may be relied upon to reach the results which it demands by intuitions or hunches, unhampered by precepts or technique discovered by experience and developed by reason in advance of determination. The juristic absolutism, so widespread today as a reinforcement of administrative absolutism assumes that in the nature of things it is psychologically impossible for the judicial process to operate objectively and impartially. Hence the apparatus of rules and principles and conceptions by which men have sought to constrain the process to operate uniformly and predictably and objectively is futile. Its supposed achievement of that purpose is a delusion. Our faith in it is superstition. Behind the supposed principles and rules and conceptions the true moving forces of decision are operating independently. It is not scientific to take account of more than the individual decision itself. What is done in the course of judicial decision is law because it is done not done because it is law. Attempt to hold down the individual judge to legally prescribed paths of action is futile. Legislator, administrative official and judge may as well be left free in theory to pursue their own paths to the general good each in his own way since in practice they will do so in any event. If we think in this fashion one way out does seem to be a postulated all-wise leader with no limit to his power. At any rate he can make some one conception of the general good the common objective of the many agencies of adjudication and administration.
More than one people in the present century came to this conclusion. Others have been drifting to it in the movement away from the nineteenth-century idea without any definitely worked-out idea to take its place. It is felt that the nineteenth-century idea left out something that cannot be dispensed with and that the law rigidly compels excluding it. But there is nothing intrinsic in law in any of its senses to tie it irrevocably to the nineteenth-century ideal. Much of the antagonism to law on the part of a group of political scientists comes from not distinguishing between law and laws and from assuming, as the analytical jurists of the last century gave them good reason to assume, that law is an aggregate of laws and that a law is a rule attaching definite detailed consequences to definite detailed states or situations of fact. Adjustment of relations and regulation of conduct in an orderly systematic fashion, in accordance with principles and authoritative guiding conceptions is rejected because it is not distinguished from a rigidly constrained process of adjustment and regulation governed in every detail by a definite prescribed rule. No difference is perceived between a standard of reasonableness and a rule of property. Hence to one of the leading political thinkers of today, who is also one of the leading analytical jurists of today, there is a self contradiction in the nineteenth-century American theory of a democracy which has voluntarily limited itself by a constitution as self-imposed law; which, to use the language of the seventeenth century, when the idea took form, has covenanted not to do certain things and to do certain other things only in certain ways. As the last century looked on liberty as something contradicted by adjustment and direction and regulation, so he looks on the power of a politically organized society as something contradicted by the common-law conception of the law of the land. To give those who exercise the force of the political organization power and yet limit their exercise of the power is a contradiction in terms. In a democracy a majority must speak for the whole. In a democracy the majority must necessarily be an absolute ruler. The absolute majority takes the place of the absolute personal ruler which political theory in Continental Europe postulated from the sixteenth century at least to the French Revolution.48
There is a good side to the work of the American skeptical realists. Although they had been anticipated by Jhering and Kantorowicz,49 they brought home vigorously to bench and bar in the United States the need of thinking about the judicial process and seeking to improve its exercise. Moreover, when it is recognized that there is an alogical, unrational, subjective element in judicial action, and the function of law in the second sense with respect to that element is recognized attempt by study of concrete instances of its operation to reach valid general conclusions as to the kind of cases in which it operates most frequently and where it operates most effectively or otherwise for the ends of the legal order, becomes indicated as an important item in the juristic program. When this subject is studied adequately and the role of the ideal element in law is well brought out, and that element is better organized and is subjected to an adequate critique, jurisprudence will have done much for law in the sense of the judicial process.
Much needs to be done also upon the program indicated by Llewellyn.50 The judicial and administrative processes are a legitimate and an important part of the field of jurisprudence if we unify the three meanings of “law” by the idea of social control, of which, taken together, they are today the paramount agency. Out of the work of the skeptical realists there may come a better basis for this side of the task of the science of law, even if we cannot admit that the judicial process is all that we mean by law or that a science of law may be built wholly on theories of that process as purely or even primarily independent of guidance by authoritative legal precepts developed and applied by an authoritative technique.51
Logical Positive Realism
This is a much more sober type.52 It investigates, from the standpoint of the logical theory of today, the modes of thought, and particularly the solving words and phrases used by lawyers and judges, and has urged a quest of a method of solving problems through a science of law with the same objectivity as physics or mathematical astronomy. Objective value judgments are to be reached, not by rigorous deduction from arbitrarily chosen postulates, but by scientific research in the sense and in the manner of the physical sciences, disclosing a basis for judgments in the facts of the legal order and of the judicial and administrative processes.
In the social sciences we must consider how men do act in their relations and contacts with others, how they ought to act in those relations and contacts in order to maintain, further, and transmit civilization, and how to insure so far as may be by social, economic, political, and legal institutions, or by ethical precepts, a correspondence of what takes place with what ought to be. Undoubtedly the gathering of statistics can show as much as to how justice is administered and how and how far legal precepts are observed and enforced. But some expect them also to show how justice must (e.g., through a psychological necessity) be administered and so expect to dispense with the question how it ought to be administered. This question of ought, turning ultimately on a theory of values, is the hardest one in jurisprudence. Those who seek an exact science, analogous to mathematics or physics or astronomy, have been inclined to essay exactness by excluding this hard problem from jurisprudence altogether. But such a jurisprudence has only an illusion of reality. The significant question is the one excluded.
Two points may be made as to conceiving of jurisprudence in terms of a physical science. For one thing, judging the conception by its results with respect to the end or purpose of law, it seems to lead back to the juristic pessimism of the historical school and the nineteenth-century positivists. Some at least of its advocates seem to regard the harnessing of internal nature, which along with the harnessing of external nature has been taken to be the basis of civilization, as an illusion so far as it is sought to be brought about or maintained deliberately and of set purpose. They are prone to hold that it must come about through economic or psychological laws, operating behind the scene and beyond the reach of conscious effort.
What is more important, however, there is a significant difference between the formulas of the engineer and the formulas of social control of which legal formulas are a specialized type. Legal formulas, or at least those found in the law reports and the commentaries on legislative texts, are formulations of experience no less than those of the engineer. The materials of legal experience are as objective and as valid for scientific treatment as those of engineering experience. The difference is that legal formulas are put to a test to which the engineer’s formulas are not subjected. Legal formulas seem to have hazy and indefinite limits and engineering formulas sharp definite limits because the former operate to restrain behavior while the latter are used to make action possible.53 It is true a type of new juristic realist would treat legal formulas as devices to permit of action.54 But this is a way of saying that in the endeavor toward a maximum of free individual self-assertion a competition of legal formulas and choice from among them might enable certain items of behavior to escape application of an inconvenient formula. The net result of legal formulas is restraint of behavior, while that of engineering formulas is to make action possible. Hence men are forever pushing to the extreme limits of legal formulas, while engineers steer a conservative middle course between the limits of their formulas. In each case the formula on its face is definite enough. In the legal formula this definiteness is put to a severe test by a steady current of behavior seeking to stretch the formula to the utmost. But no engineer, architect, or builder would think of building up to the theoretical limits of the strength of materials. If he did he would risk prosecution for manslaughter. As a matter of course he builds well within them, and so we are able to contrast the certainty of his results with the relative uncertainty of legal results in action. This is not due to a more exact science or more scientific method in the one case than in the other. In both cases experience has been formulated in rules which are valid enough at the core and indefinite or contingent enough in application at the limits. The difference lies in the nature of the tasks imposed upon the respective formulations of experience, whereby the contingent features in the application of the one are tried continually while those of the other are rarely developed.
One feature of the approach from the standpoint of the physical sciences is insistence on exact terminology. The analytical jurists and the Pandectists laid stress on this also. But the utility of precise terminology and exact meanings is more in connection with differentiating problems from pseudo-problems and with formulation of results than in providing solutions. None of the fundamental problems of jurisprudence is solved by terminology. There have been signs that rigid terminology has been used to create an appearance of solution of problems which have been left untouched at the core. It should be added however that the logical attack on the jurisprudence of conceptions carried on for a generation by Professor W. W. Cook, his relentless exposure of Scheinbegriffe, and his critique of specious universals and generalities have done a service to the law (in the sense of the body of authoritative precepts and technique of developing and applying them) and make for a more intelligent juristic thought and effective judicial process. Unhappily his program of investigation of the work of the state courts from a positivist economic standpoint had to be given up while its technique was still developing. But a notable beginning was made from which those who come to the study of research method in the future may learn much.55
Phenomenology56 derives the significance and connection of phenomena from the phenomena themselves. It holds that knowing is not a valuing or a critical act but is a mode of existence of actuality. Hence juristic phenomenology styles itself a theory of actuality as its American analogue calls itself realism. Goodness is held to be an ultimate and objective subsisting entity which is intuitively perceived. A right action is one which has on the whole the best actual consequences, the best consequences being those which contain the greatest quantity of ultimate goods which we intuitively perceive to be valuable. Experience recognizes values embodied in social facts in which the values are realized. Justice is the totality of jural values intuitively recognized through collective experience. But these values are extremely variable. Hence in their mode of thought justice has no meaning apart from the facts in which values are realized.
As Sauer has remarked, German juristic phenomenology has not thus far been able to achieve any notable results.57 It finds significance in the continually changing single phenomena of the judicial and administrative processes. Ends are reached, values are perceived, and so just results are reached intuitively.58 Some American realists seem to combine this with economic determinism and psychological realism.59
The Swedish Realists
A notable group headed by Axel Hägerström calls for special notice.60 He proceeds upon an ultra-realist analysis of the lawmaking, judicial, and administrative processes. From this standpoint, law (in the second sense) is an aggregate of independent imperatives establishing behavior patterns for those whom the lawmaking authority wishes to influence. The rules are imperative in form. But they are not commands. No one commands them. They are explained psychologically. They are taken to be binding and are habitually obeyed. Accordingly certain persons are delegated to wield supreme political power. Thus they are in position to put pressure upon men generally and thereby to direct their actions in certain respects.61 Legal rights and duties are imaginary. Obedience is assured by the belief of people that they have a duty to obey.62 There is an imaginary bond originally derived from primitive magic.63 The reality is force applied by officials and the psychological habit of obedience which makes actual application of force largely unnecessary.64 This is in line with the recent tendency toward a threat theory of the nature of law.
Constructive Juristic Realism
Thus far the achievement of juristic realism in all its forms has been to rouse American jurists and lawyers from what Kant called dogmatic slumber. In this it has carried on the work begun by Jhering. But it should be possible to formulate a constructive program of relativist realist jurisprudence.65
American juristic realists with the Anglo-American professional tradition behind them, think in terms of the judicial process. But in contrast to the analytical jurists who thought of that process in terms of development and application of authoritative precepts by an authoritative technique, they think of the administrative element in the judicial process as the type. Continental realists, with the modern Roman academic tradition behind them, think of a codified law, of the legislative process, of administrative enforcement, and of a judiciary with no or very little power of creative finding of law. What is common to both is insistence on the official, wielding the power of politically organized society, as of primary importance.
If their starting point is accepted it would still be quite possible to set up a constructive program. Five points may be suggested:—
(1) By study of the alogical, unrational, subjective element in the administrative and judicial processes useful general conclusions might be reached as to the kinds of cases in which it operates most frequently and when it operates most effectively or most unhappily for the end of the legal order. Sociological jurists have proposed this but it remains undone.
(2) By study of the administrative process in action in comparison with the judicial process it might be possible to reach useful conclusions as to the effectiveness or ineffectiveness of checks upon each process, as to how far checks upon the administrative process and the administrative element in the judicial process are practicable or advisable, and even to indicate the line of development which should be urged for canons of administrative determination.
(3) There might be recognition of the significance of the individual case, as contrasted with the unqualified universalism of the last century, without losing sight of the significance of generalizations and conceptions as instruments toward the ends of the legal order. At this point the realists have been anticipated by Stammler. But they will approach the subject in a different way through psychology.
(4) There might be a giving up of the idea of a necessary sequence from a single cause in a straight line to a single effect, and hence of the one sovereign legal remedy for every difficulty and one necessary solution of every problem, without giving up principles, conceptions and technique. There will be recognition of a plurality of elements in all situations and of the possibility of dealing with human relations in more than one way. There will be recognition that the test of a legal precept or doctrine or institution is how and how far it helps achieve the ends of the legal order. Here constructive juristic realism would build on Jhering. Hence in the long run I am confident there will be no abandonment of belief that the administration of justice may be improved by intelligent effort. I suspect also that study of single instances, wisely directed and in sufficient number, will show what study of the legal materials of all systems seems to reveal, namely, that the old straight-line thinking is a useful instrument in parts of the field of administration of justice where the economic order demands the maximum of attainable certainty.
(5) There might be recognition that there are many approaches to juristic truth and that each is significant with respect to particular problems of the legal order. Hence there might be an appraising of these approaches, not absolutely or with reference to some one assumed necessary psychological or philosophical basis of jurisprudence, but with reference to how far they aid lawmaker, or judge, or jurist toward the maintaining, furthering, and transmitting of civilization, and how they may aid the jurist toward organizing the materials and laying out the course of the legal order.
Some recent studies of juristic thinking, directed, one might say, to the juristic rather than to the judicial process, and economic-functional study of law and social change, promise a more real realism and augur well for the progress of the science of law.66
[1. ]Frank, Law and the Modern Mind (1933) particularly 1–203, 243–52; Robinson, Law and the Lawyers (1935) particularly 1–19, 46–121, 284–323; Arnold, The Symbols of Government (1935) particularly 1–104, 199–208; Frank, If Men Were Angels (1942).
[2. ]“This doing of something about disputes, this doing of it reasonably, is the business of the law. And the people who have the doing of it in charge, whether they are judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is to my mind the law itself.” Llewellyn, The Bramble Bush (1930) 3. Here he puts the task of the legal order and then seems to define law in the second sense as the way law in the first sense is carried on instead of as a body of guides to carrying it on. But it is fair to say that he later repudiated the passage as out of balance in its emphasis. On Using the Newer Jurisprudence (1940) 40 Columbia Law Review 581, 603, n. 17. But what he then said was what many were then saying.
[3. ]There is a good concise statement in Holt, The Freudian Wish and Its Place in Ethics (1915).
[4. ]See an interesting psychological interpretation of psychological realism in Good-hart, Some American Interpretations of Law, in Modern Theories of Law (1933) 1, 16–17.
[5. ]1 Bentham’s Works (Bowring ed. 1843) 141.
[6. ]See e.g., Dillon, Laws and Jurisprudence of England and America (1894) 17–18.
[7. ]Moore and Hope, An Institutional Approach to the Law of Commercial Banking (1938) 38 Yale Law Journal 703–4.
[8. ]Maitland, English Law and the Renaissance (1901) 25.
[9. ]Elliot and others, Preliminary Report on Efficiency in the Administration of Justice, made to the National Economic League (1914) 9; Haynes, The Selection and Tenure of Judges (1944) chap. 7.
[10. ]Moore and Hope, An Institutional Approach to the Law of Commercial Banking (1938) 38 Yale Law Journal 703, 704–9 (1938).
[11. ]See Schofield, Swift v. Tyson, Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Illinois Law Review 533, 536–37.
[12. ]Law and the Modern Mind (sixth printing 1949) 18–20, 41, 81, 91, 141, 156, 162, 167, 193, 199, 200, 219, 235, 246, 256, 292, 354.
[13. ]West, The Psychological Status of Present International Law, in 28 Grotius Society,Problems of Peace and War (1943) 135.
[14. ]Llewellyn, The Normative, the Legal and the Law Jobs: The Problem of Juristic Method (1940) 49 Yale Law Journal 1355, 1373–83.
[15. ]McDougall, Social Psychology (1936).
[16. ]Aristotle, Politics, i, 2, McKeon, Basic Works of Aristotle, 1129–30.
[18. ]Miller, Lectures on the Philosophy of Law (1884) 71.
[19. ]Ranyard West, The Inevitability of Prejudice (1952) 22 Ethics, 205.
[20. ]Ibid. 209.
[21. ]Llewellyn, The Bramble Bush (1930) 3, but see supra, note 2; id. A Realistic Jurisprudence—The Next Step (1930) 30 Columbia Law Review 431; id. Some Realism About Realism (1931) 44 Harvard Law Review 1222; Bingham, What Is Law? (1912) 11 Michigan Law Review 1, 109; Llewellyn, Präjudizienrecht und Rechtsprechung in Amerika (1933) § § 1–16; id. Legal Tradition and Social Science Methods in Swann and others, Essays in Research in the Social Sciences (1931); Frank, What Courts Do in Fact (1932) 26 Illinois Law Review 645; id. Are Judges Human (1931) 80 Univ. of Pa. Law Review 17, 233; id. Mr. Justice Holmes and Non-Euclidean Legal Thinking (1932) 17 Cornell Law Quarterly 568; id. If Men Were Angels (1942); Hutcheson, The Judge Intuitive (1928) 14 Cornell Law Quarterly 274; Yntema, Rational Basis of Legal Science (1931) 31 Columbia Law Review 925; Radin, Legal Realism (1931) 31 Columbia Law Review 829; Arnold, The Role of Substantive Law and Procedure in the Legal Process (1932) 45 Harvard Law Review 617; Goble, Law as a Science (1934) 9 Indiana Law Review 294; Marx, Juristischer Realismus in den Vereinigten Staaten von Amerika (1936) 10 Revue internationale de la theorie du droit, 28; F. Cohen, Transcendental Nonsense and the Functional Approach (1935) 35 Columbia Law Review 809; Auburtin, Amerikanische Rechtsauffassung und die neueren amerikanischen Theorien der Rechtssoziologie und des Rechtsrealismus, 3 Zeitschrift fur auslandisches offentliches Recht (1933) 529, 547–64.
[22. ]Llewellyn, The Bramble Bush, 3. But see supra note 2.
[23. ]Llewellyn, Some Realism About Realism (1931) 44 Harvard Law Review 1222, 1227.
[24. ]Frank, Law and the Modern Mind, pt. I, chap. 12 (1931); id. Are Judges Human (1931) 80 Univ. of Pa. Law Review 17, 23–31, 34–37, 233, 240–48; id. What Courts Do in Fact (1932) 26 Illinois Law Review 645; Llewellyn, A Realistic Jurisprudence—The Next Step (1930) 30 Columbia Law Review 431, 447–53.
[25. ]Frank, Law and the Modern Mind (1931) 149n. See Fuller, American Legal Realism (1934) 82 Univ. of Pa. Law Review 429, 433.
[26. ]Frank, Law and the Modern Mind (1931) 150.
[27. ]Yntema, The Hornbook Method and the Conflict of Laws (1928) 37 Yale Law Journal 468, 480.
[28. ]Erie Co. v. Tompkins, 304 U.S. 64 (1938).
[29. ]I have considered this point in The Ideal Element in American Judicial Decision (1931) 45 Harvard Law Review 1361; A Comparison of Ideals of Law (1933) 47 Harvard Law Review 1; Hierarchy of Sources and Forms in Different Systems of Law (1933) 7 Tulane Law Review 473.
[30. ]Frank, Law and the Modern Mind (1931) pt. I, chap. 2, pt. III, chap. 1.
[31. ]Saleilles, L’individualisation de la peine (2 ed. 1904) preface, p. vi, English translation, The Individualization of Punishment, p. xxvi.
[32. ]Frank, Law and the Modern Mind (1931) 140, 141; id. Are Judges Human (1931) 80 Univ. of Pa. Law Review 17, 19.
[33. ]1 W. W. Story, Life and Letters of Joseph Story (1851) 211, 212.
[34. ]Cohen and Cohen, Readings in Jurisprudence and Legal Philosophy, 673 (extract from Morris R. Cohen, Law and the Social Order, 1933).
[35. ]Lecture IX, notes 46–49.
[36. ]4 Campbell, Lives of the Chief Justices (3 ed. 1874) 309–11.
[37. ]2 Atlay, Victorian Chancellors (1908) 1–2.
[38. ]Cairns, Legal Philosophy from Plato to Hegel (1949) 236–39.
[39. ]3 Bacon, Works (ed. by Spedding, Ellis, and Heath, 1879) 145.
[40. ]Cairns, Legal Philosophy from Plato to Hegel (1949) 237.
[41. ]Holmes, J., in Southern Pacific Co. v. Jansen, 244 U.S. 205, 221 (1917).
[42. ]Cardozo, The Nature of the Judicial Process (1921) 113–14.
[43. ]Ibid., 114.
[44. ]Cairns, op. cit. 238.
[45. ]Pound, The Theory of Judicial Decision (1923) 36 Harvard Law Review 940, 945, 946.
[46. ]Dewey, Logic (1938) 101 ff. 120–22.
[47. ]Cairns, op. cit. 239.
[48. ]As to Kelsen and Laun and the Neo-Kantian left see Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 444, 452.
[49. ]Jhering, Scherz und Ernst in der Jurisprudenz (1884) pt. 3; Gnaeus Flavius (Kantorowicz) Die Kampf um die Rechtswissenschaft (1906). See also Pound, Mechanical Jurisprudence (1908) 8 Columbia Law Review 605.
[50. ]Llewellyn, Some Realism About Realism (1931) 44 Harvard Law Review 1222, 1247, 1250.
[51. ]In this connection note especially Llewellyn’s penetrating discussion of certainty in his book on American case law: Präjudizienrecht und Rechtsprechung in Amerika (1933) §§ 55–61.
[52. ]Cook, Scientific Method and the Law (1927) 13 American Bar Assn. Journal 303; id. The Possibilities of Social Studies as a Science, in Swann and others, Essays in Research in the Social Sciences (1931) 27; id. A Scientific Approach to the Study of Law, in Essays in Honor of W. W. Willoughby (1937) 201; id. The Logical and Legal Bases of the Conflict of Laws (1942); Dimock, Le Professeur W. W. Cook et le relativisme juridique (1932) Archives de philosophie du droit et de sociologie juridique 575, with bibliography of Professor Cook’s writings. Cf. Rueff, From the Physical to the Social Sciences (transl. by Green, 1929); Oliphant, Facts, Opinions, and Value Judgments (1932) 10 Texas Law Review 697, 701–5.
[53. ]Shewhart, Statistical Method from the Viewpoint of Quality Control (1939); id. Contribution of Statistics to the Science of Engineering, University of Pennsylvania Bicentennial Conference: Fluid Mechanics and Statistical Methods (1941) 97; Pound, The Relation of Statistical Quality Standards to Law and Legislation, ibid. 137.
[54. ]I have considered this in The Call for a Realist Jurisprudence (1931) 44 Harvard Law Review 667, 708–9. See Bohlen, Old Phrases and New Facts (1934) 83 Univ. of Pa. Law Review 305, 307, 311.
[55. ]Publications of the Institute of Law of Johns Hopkins University: Monographs in the Study of Judicial Administration in Ohio (1932); Bulletins of the Study of Judicial Administration in Ohio (1932); Monographs in the Study of the Judicial System in Maryland (1931–32); Bulletins of the Study of the Judicial System of Maryland (1931–32); Monographs of Survey of Litigation in New York (1931–32); Bulletins of Survey of Litigation in New York (1931–32); Yntema, Analysis of Ohio Municipal Court Acts (1933). Marshall, Unlocking the Treasuries of the Trial Courts (1933); id. Comparative Judicial Criminal Statistics: Six States (1932); id. Comparative Judicial Criminal Statistics: Ohio and Maryland (1932).
[56. ]Reinach, Die apriorischen Grundlagen des bürgerlichen Rechts (1922); Schapp, Die neue Wissenschaft vom Recht (1931–32); Kaufmann, Logik und Rechtswissenschaft (1922); id. Die Kriterien des Rechts (1924); id. Die philosophischen Grundprobleme der Lehre von der Strafrechtsschuld (1929); Schreier, Grundbegriffe und Grundformen des Rechts (1927); translated as Concepto y formas fundamentales del derecho by Garcia Maynes (1942); G. Husserl, Recht und Welt (1930); Treves, Sociologia y filosofia social (1941) chap. 3; Spiegelberg, Gesetz und Sittengesetz (1934). For applications see G. Husserl, Der Rechtsgegenstand (1933); id. Rechtskraft und Rechtsgeltung (1925); Engisch, Zur phänomenologischen Methode im Strafrecht (1937) 30 Archiv fur Rechts und Sozialphilosophie, 130.
[57. ]Sauer, Rechts und Staatsphilosophie (1936) 25.
[58. ]Cf. Hutcheson, The Judgment Intuitive—The Function of the “Hunch” in Judicial Decisions (1929) 14 Cornell Law Quarterly 274.
[59. ]Yntema, Jurisprudence on Parade (1941) 39 Michigan Law Review 1134.
[60. ]Hägerström, Inquiries into the Nature of Law and Morals, transl. by C. D. Broad, ed. by Karl Olivecrona (1953). See also Olivecrona, Law as Fact (1939). There is an excellent short statement in Yntema, Jurisprudence on Parade (1941) 39 Michigan Law Review 1134, 1171–74.
[61. ]Olivecrona, Law as Fact (1939) 53.
[62. ]Hägerström, Inquiries as to the Nature of Law and Morals, transl. by Broad (1953) iii, 5, pp. 127 ff.
[63. ]Hägerström, Der römische Obligationsbegriff im Lichte der allgemeinen römischen Rechtsanschauung (1927) 35 ff.
[64. ]Olivecrona, Law as Fact (1939) 142.
[65. ]See Pound, The Call for a Realist Jurisprudence (1931) 44 Harvard Law Review 697, 710–11.
[66. ]Friedmann, Legal Theory (1944); id. Law and Social Change in Contemporary Britain (1951); Levi, An Introduction to Legal Reasoning (1949).