American realism: Gray, Holmes, Frank and Llewellyn

American realism is described not as a school of jurisprudence but as a pedagogy of thought. Open with that sentence; it is the first mark, and it disposes of the temptation to write about realism as though it had a creed.

The realists are concerned with the study of law as it works and functions — which means investigating the social factors that make a law on the one hand, and the social results on the other. They emphasise what the courts may do, rather than abstract logical deductions from general rules, and they attend to the inarticulate ideological premises underlying a legal system.

The relationship of jurisprudence to law depends not on what law is treated as being, but on how law is created.

• Statutes, together with precedents, equity and custom, are sources of law. The law itself is what the persons acting as judicial organs of the State lay down as rules of conduct.
• In determining rights and duties the judges settle what facts exist, and also lay down the rules by which they deduce legal consequences from those facts.
• The judge, in interpreting statute, custom or equity, creates law rather than discovering it. Law expressed in statutes or customs gets meaning or precision only after the judge expresses his opinion. Judge-made law is the final and authoritative form of law.
• It follows that judicial pronouncements are the true subject matter of jurisprudence for evaluation.

Gray's contribution is that judicial decisions have been responsible for giving not only content but direction to political, social and economic thought; and that the courts have the first and the final say as to what the law is.

Gray is also the name to cite in the comparison of legislation with precedent: case law is not only superior to statutory law, but all law is judge-made law, because the shape in which a statute is imposed on the community as a guide for conduct is the statute as interpreted by the courts — the courts put life into the dead words of the statute.

The traditional concept of law is a collection of rules from which deductions can be made. Against that:

• The life of the law has not been logic; it has been experience.
• The law embodies the story of a nation's development through many centuries, and cannot be dealt with as if it contained only the axioms and corollaries of mathematics.
• Law must be strictly distinguished from morals.

Holmes's definition of law and of the scope of jurisprudence led to the later construction of American realism, which focused attention on the empirical factors underlying a legal system.

Holmes appears a second time in this paper, in the argument about possession, where he answers Savigny; see the study on possession.

Frank's contribution is the division of scepticism into two.

| | What it doubts | |---|---| | Rule scepticism | The lawyer should be able to predict the decisions in most suits not yet commenced, but the legal rules enunciated in courts' opinions — the paper rules — too often prove unreliable as guides to prediction. | | Fact scepticism | Fact sceptics also engage in rule scepticism, but tear behind the paper rules. They are primarily interested in trial courts, and even they cannot predict future decisions. |

Why the conventional description is false. The account of courts rendering decisions by applying legal rules does not describe judicial law-making correctly or fairly, especially where the testimony of witnesses is recorded at trial: witnesses may be mistaken about what they saw or heard, and their recollection may be at variance with reality.

Prejudice. Trial judges and jurors, also being human, may have prejudices unconscious and unknown even to themselves, for or against particular judges, lawyers or witnesses — prejudices that may be racial, religious, economic, political or gender-biased.

The consequence for legal education. Instead of precedent, the emphasis should be on training in fact-finding, the evaluation of prejudices and the psychology of witnesses, both for trial judges and for prospective jurors. Frank laid emphasis on understanding the working of the lower courts, because points of law emerge from the fact situation at the lowest level of the hierarchy; the textbook approach is misleading, because the working of the court system is uncertain and misty.

Llewellyn recognised the functional approach to law and set out the positions common to the American realists. Reproduce them as a numbered list:

1. The conception of law is in a constant state of flux.
2. Law is a means to social ends and not an end in itself, so any part of it must be constantly examined for its purpose and its effect, and judged in the light of both and of their relation to each other.
3. Society is in flux, and typically faster than the law, so the probability is always that any portion of law needs re-examination to determine how far it fits the society it purports to serve.
4. For the purpose of these enquiries the jurist should look at what courts, officials and citizens do, without reference to what they ought to do — a temporary divorce of is and ought for the purposes of study.
5. Juristic enquiry must regard with suspicion the assumption that legal rules as formally enunciated or inscribed in books represent what courts and people are actually doing.
6. It must regard with equal suspicion the assumption that formally enunciated rules actually do produce the decisions that purport to be based on them.
7. There must be recognition of the necessity of grouping cases in narrower categories, with the criterion applied indicated explicitly.
8. Jurists must insist on the evaluation of any part of law in terms of its effects.
9. Jurists must insist on sustained and programmatic attack on the problems of law along these lines.

• The set-piece — State the basic tenets of the realist school. Open with the pedagogy-not-a-school point, take Gray, Holmes, Frank and Llewellyn in that order, and close with Llewellyn's nine points as the school's own summary of itself.
• The comparison with Austin. Both are positivist in temper, but Austin locates law in the sovereign's command and Gray locates it in the judge's pronouncement. Note that the realists therefore make precedent central to a definition of law from which Austin had excluded it altogether.
• The trap. The temporary divorce of is and ought is for the purposes of study. It is not a claim that law has nothing to do with values — Llewellyn's second and eighth points require the jurist to judge law by its effects.