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Modern analytical and empirical

American Legal Realism

Law is what courts actually do; judges are people, and their reasons are not only the rules.

1920s and 1930s, with roots in Holmes · United States. Spotted a mistake? Tell us.

Read this first. This is a first map of a large subject. Each school is a family of views, and its thinkers often disagree with one another, so every summary simplifies. We describe each school in terms its own followers would accept and give the strongest criticism beside it. Read the original works before you cite anyone, and check your own course's reading list. This is general information, not legal advice.

What is law?

Law is the prediction of what courts will do in fact. Rules matter less than the human, social and economic facts that shape decisions.

Law and morality

Not separate: judges make policy choices, openly or not, and scholars should study those choices with the help of the social sciences.

Where does its authority come from?

The behaviour of courts and officials.

How should judges decide?

Judges should recognise that they make choices and look at the real consequences of their decisions. Scholars should observe how courts behave.

The question it asks

How do judges really decide?

Main criticism

Hart and others said the prediction theory ignores the point of view of people who accept rules as reasons for action, and that realists overstate how unpredictable law is.

Legacy today

Empirical study of judges, the Uniform Commercial Code, law and the social sciences, and later movements such as law and economics and critical legal studies.

Key thinkers

Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank, Benjamin Cardozo, Felix Cohen.

Key works

  • Holmes, The Path of the Law (1897)
  • Llewellyn, The Bramble Bush (1930)
  • Frank, Law and the Modern Mind (1930)

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Read further

Stanford Encyclopedia of Philosophy: legal realism. For the exact arguments, go to the original works above.

TheLawToKnow Tools’s guide to schools of legal thought is an educational overview. It is not legal advice. Report a mistake.