Legal Realism: Practice Makes Imperfect
Oliver Wendell Holmes Jr. and Law's Moral Skeptics
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [...] Three generations of imbeciles are enough.
— Justice Oliver Wendell Holmes, Buck v. Bell, 274 U.S. 200 (1927)
Last time, we looked at the emergence of legal positivism in the West, and the influence of thinkers like David Hume and Jeremy Bentham. We looked at how the attempt to reform the law by detaching it from morality and making the state the sole source of the law, ended up paving the way for the modern total state: the law is what the sovereign, the legislature, the state says it is. The effect was probably inevitable. Power has been centralized like never before in history and even so-called democratic countries have lurched inexorably towards greater authoritarianism. With the state as sole authority to make law unquestioned, there has been an explosion of laws, statutes and regulations that few ever read and fewer understand, clogging the arteries of the modern state. As Tacitus wrote:
The more corrupt the state, the more numerous the laws.
But if the law is what the state says it is, isn’t the real power in the hands of the judge’s who interpret the legislation and regulations that the legislatures churn out?
Welcome to the doctrine of Legal Realism which emerged in the early 20th century and also welcome to its most eloquent proponent, United States jurist and associate Supreme Court Justice, Oliver Wendell Holmes Jr.
Holmes pragmatism is illustrated in his famous quote above. This is from the 1927 US Supreme Court decision in Buck v. Bell, which upheld Virginia’s sterilization law. In his majority decision, Holmes quipped: “three generations of imbeciles is enough”. We in 2024 may well appreciate the negative consequences of a society filled and indeed lead by imbeciles.
But Holmes impact on our lives goes far beyond eugenics, which seems to come in and out of favour, depending on who is in power and who is at any point in time the target of a cull. Yesterday, it was the rural inbred, today, apparently it is rich boomer whites with families. In Canada, the federal bureaucrats reassure us that although 50,000 or so Canadians have been euthanized since 2020 under Canada’s very generous medical assistance in dying legislation, or MAIDS — don’t worry, those prescribed this ultimate remedy are mostly old rich whites anyway, so no harm done.
For my video on legal realism, click here
Oliver Wendell Holmes Jr., born on March 8, 1841, was an American jurist who served as an associate justice of the U.S. Supreme Court from 1902 to 1932. He retired from the high court when he was 90 years old. Holmes is one of the most widely cited Supreme Court justices and among the most influential American judges in history.
Holmes opposed the view of law as a broad, abstract concept and attacked the proposition that all legal provisions could be rationally defended according to some conceptually deductive process. He saw law as indeterminate. He didn’t believe you could find the law by your reason and appeal to something rational out there in the universe. He was a moral sceptic as far as the law is concerned, who didn’t think there were objective standards that can determine right and wrong. This stands in stark contrast to theories of natural law that I covered in previous videos and articles. The truth was definitely not out there for Holmes. Since laws were indeterminate, judges had to rely on their personal and political preferences to make decisions.1
Legal Realism has a close kindship with legal positivism. Both agree that law is constituted by social facts, that judges have and exercise significant powers to make law and that a law is morally fallible and so is to be approached in a realistic spirit in the everyday sense of that term, without what they saw as romanticism or mystification.2
There are two main schools of Legal Realism. The American and the Scandinavian. In this article, I am only dealing with the American kind, which differed from legal positivism in rejecting an assumption most people have to this day, both trained lawyers lawyers and lay persons alike, that laws, in the form of legislation, regulations, and legal codes, determine the outcome of legal disputes. Legal Realists reject the idea these written laws create normative standards to which the facts of the case can be applied to predict an outcome. Law is a social construct and is in reality only what the judges think or want it to be. The law isn’t what you read in that statute, but exists only in its application, in action, in court, where judges are agents of social policy, and are not bound by pre-existing legal rules and concepts.
Legal Realism is the philosophy of pragmatism which captures, perfectly, the peculiar American attitude to life after World War I, when a new breed of American envisaged the search for truth as a continuous experiment to find out what actually worked, the hell with high principles, with a reverence for practical achievement above all else, what William James called, derisively, the pursuit of that “Bitch Goddess Success”.3
Legal realist thinking remains prevalent in modern society today —- inspired by the social sciences. Realists are modernists and progressives, one notch up from the legal positivists. Legal Realists were probably the first to express their fascination with law as having as its primary reason for being a progressive social function and purpose. The Cicero’s and Natural law thinkers were just high minded fools, hopelessly naive and impractical. Law is not about the good, rights and justice. Law is no different from any technology; it is a way to get things done.
If the judges don’t like the words of a statute they just ignore them. When the English judiciary decided they didn’t like the 1961 Suicide Act, which made it a crime to accompany a terminally ill person to an oversees euthanasia clinic, they just refused to implement it.4
This is why Legal Realism is sometimes described as judges reasoning backwards. First, a judge looks at the case in front of him, the parties and the social facts underlying the dispute, and consciously or unconsciously decides who is going to win or how he is going to rule. The judge then reasons backwards to find and interpret and twist whatever written laws supposedly control things to get the outcome he wants. The reasons are then delivered, this time from forward to back, giving the impression the decision arises rationally and logically based on the interpretation of laws and precedent or past decisions of other judges — but really the fix was in all along. That’s not a bad description of how courts seem to work, especially in the progressive, activist, woke courts of the West today. The modern factory law school, gripped by the effluent of the sociology departments, does not even pretend to produce high-minded thinkers. Its job is to produce technicians, functionaries, bureaucrats. No one questions that the higher function of the lawyer or judge is solely and exclusively to be agents of progress towards greater equality, equity and inclusion.
If the case involves a tobacco company, a member of a politically hated group, or a Plaintiff from a recognized victim community, you can generally predict the outcome, even though it may be harder to predict exactly how the court will get there. That is often the surprise, namely, how the result is justified. This is exactly the language Holmes used in his famous paper, “The Path of the Law” published in the Harvard Law review in 1897. He wrote that the object of the study of law is prediction; prediction of the incidence of the public force in the form of reward or punishment through the instrumentality of the courts. The best way to do that is to look at the law as a “bad man” who cares only about the material consequences of his actions. For this reason, jurists like H.L.A. Hart have called the Legal Realists “Rule Skeptics”.
A recent example of this would be Trump being struck off the ballot in Colorado by a court made up of Democratic party judges who somehow come to the conclusion that section 3 of the 14th amendment applies to a presidential candidate — even though the provision, by any fair reading, clearly does not apply to the presidency, and that Trump was guilty of insurrection, even though he has never even been charged, let alone convicted, of insurrection.
Another example would be in Canada, where the Chief Justice of the British Columbia Supreme Court declared publicly that every judge in British Columbia was vaxed, even though he was under no legal obligation to make such personal disclosure in the form of a public pronouncement, and then proceeded to dismiss every case challenging state action during the lockdown.
I would say all these results, and many others like it, were predictable. Those who labour under a purely positivist, classical liberal, understanding of the law, still expect rules to be applied by the courts in a normative way, as if they really controlled what judges do, and are continually surprised when they lose. They fail to appreciate the political aspect of judging in the West today.
But is that the basis for determining as Holmes does that these decisions are law? Isn’t this the exact opposite of law? Do the bad decisions of activist courts really refute natural law theory? Does a politically motivated decision refute that there is a true law or an ideal outcome applicable to the case, which if discovered would be consistent with the divinely created natural order understood through reason, and the application of common sense, with reference to the ancient traditions of a people or nation?
Holmes warned against viewing law from the perspective of the “good man” who was controlled by “vaguer sanctions of conscience” and seems to have built his world view of law on his own world of appellate court advocacy and judging, which was fact oriented and context specific. He also ignores law in action outside a court setting, laws that people obey without question all the time because they think they are reasonable.
Courts on the other hand are constantly forced to formulate policies that balance conflicting interests of different classes and ideologies. But does the application of law in an anarcho-terrorist state where the same laws have different consequences depending on whether you are politically favoured or not, have anything to do with what the law really is?
Legal Realists or some of them convolute two entirely different things. It isn’t surprising that a kind of legal realism emerged in the US, which inherited the common law tradition of judge made laws from England, combined with the litigious nature of American society. Unlike the civil law system in continental Europe, based on Roman law, where judges are little more that clerks managing the Civil Code, and the advocate or lawyer is the real star, in the common law system, it is the judge who holds centre stage, on a high pedestal, and is the fountain of law. It was inevitable in a country with a Supreme Court charged with making and striking down laws, that the idea that the law is really just what the judges decide would emerge.
One of the more enthusiastuc exponents of Legal Realism was Karl Llewellyn. His classic, the Common Law Tradition: Deciding Appeals, would appeal to anyone who also enjoys reading Carlyle, in that Llewellyn, like Carlyle, has a unique, majestic and sometimes difficult writing style.5 Llewellyn was preoccupied with law as a technology. He believed that law should reflect the ‘reality’ of society. He referred to legal rules and merely “pretty playthings”. Like Holmes, he rejected the ‘blind imitation of the past’ that served to limit the ‘possibilities of our imagination’. As an admirer of the common law tradition, he sought to emulate the Aristotelian practical-wisdom-decision-making model. He saw law as an ‘organized activity’ undertaken by greater and lesser actors for different legal and social purposes.6
In the Common Law Tradition, Llewellyn identifies two distinctive styles of deciding cases, according to the role performed by the relevant legal actor. One pillar he called the “grand style” of adjudication, in which judges are inculcated with the content of the law and immersed in the culture to the extent that modes of argumentation are internalized. The effect is to have lawyers subconsciously act in a similar way to each other when deciding similar cases. He writes:
There is a further cluster of conditioning and steadying factors in the work of the appellate courts … which has been curiously disregarded. It is in the general and pervasive manner over the country at large, at any given time, of going about the job, the general outlook, the ways of professional knowhow, the kind of thing the men of law are sensitive to and strive for, the tone and flavor of the working and of the results…. ; it corresponds to what we have long known as period-style in architecture or the graphic arts or furniture or music or drama. Its slowish movement but striking presence remind me also of shifting “types” of economy (“agricultural”, “industrial,” e.g.) and of the cycles or spirals many sociologists and historians discover in the history of political aggregations or of whole cultures.
Thus, for instance, the outlook and manner of Mansfield, or of Marshall, Kent, Cowen, Parker, Tilghman, Gibson, are in no wise peculiar to these giants; both are shared unmistakably by most of the lesser men of the period. The type-thinking of the time is to view precedents as welcome and very persuasive, but it is to test a precedent almost always against three types of reason before it is accepted. The reputation of the opinion-writing judge counts heavily (and it is right reason to listen carefully to the wise). Secondly, “principle” is consulted to check up on precedent, and at this period and in this way of work “principle” means no mere verbal tool for bringing large-scale order into the rules, it means a broad generalization which must yield patent sense as well as order, if it is to be “principle”. Finally, “policy”, in terms of prospective consequences of the rule under consideration, comes in for explicit examination by reason in a further test of both the rule in question and its application. The tone and mark consist in an as-of-courseness in the constant questing for better and best law to guide the future, but the better and best law is to be built on and out of what the past can offer; the quest consists in a constant re-examination and reworking of a heritage, that the heritage may yield not only solidity but comfort for the new day and for the morrow. …. This is the Grand Style of the Common Law. …7
The other pillar concerns the “crafts”, or minor institutions that are characterized by their specialist nature and treatment of legal rules as formal and prescriptive. As Shaw writes, “together they make up part of a distinct cultural system for assigning meaning to events that take place in the daily lives of individuals.”8
But anyone who has practiced law knows that advising clients is about two different things. First, you give a client your opinion on what the law is or should be interpreted by a just court. But then you have to tell the client the risks of proceeding to trial and all the various ways a court might rule against them and why. Often these risks have nothing to do with justice, but quite the opposite. You will outline the biases and prejudices that could stand against them. This can be confusing to some clients who assume that if they are in the right, they must win. That is not at all certain and the clients need to know that there are bad judges and fickle juries out there.
Losing to a bad or biased judge, or dim witted jury, is a risk that has nothing to do with the law, in the abstract but no less real, and that is the point. There is a distinction between what the law is or should be and what may be decided by a judge or jury for completely irrelevant reasons. Legal Realism confounds the true law, a very real thing we can find with clear thinking and our rational minds, and the assessment of risk, and the possibility of a bad decision. Roe v Wade is only one example of bad law that took literally decades to reverse and could be reversed again. That doesn’t mean there isn’t an absolute and correct result on the issue of abortion, based on principle, that the broken clock of the judiciary gets right every decade or two.
As Brian Leiter writes:
[Legal Realism] is not a claim about the concept of law but, rather, a claim about how it is useful to think about law for attorneys who must advise clients what to do… [F]rom the practical perspective of the franchisee, what one wants to know about the law is what, in fact, the courts will do when confronted with the franchisee’s grievance. That is all the law that matters to the client. And that is all, I take it, the Realists wanted to emphasize.9
What we can see then in legal realism, and despite the eloquence and common sense of a Llewellyn, is a very backward step, a final rejection of any moral restraints on the law, and towards the modernist activist courts and legislatures of today. Legal Realism opened the way to thinking of law in purely functional, political terms. It very clearly paved the way for critical legal studies, another manifestation of the better know critical race theory and the view that the law, like everything else that matters, is just about power and politics. Rules, rights and objective truths are merely tools and do not exist independently, and can be tossed aside when they interfere with the political objective. The legal realists didn’t go that far. They were more about psychology and social policy and were certainly not Marxists. Llewellyn was clearly a lover of tradition and heritage. But in dismissing the restraint of morality and the idea of a natural law, they had thrown the door wide open for the modernist Woke, progressive crowd and their pillaging cohorts.
In Holmes’ Paths of the Law, we see very clearly the modernist agenda, dislike, even disdain, for tradition and custom, for the teaching of ancient jurists and legal philosophers, and an attraction to what would later be called technocracy, scientism and progress toward a perfect materialist understanding as to the laws function and purpose. He writes:
For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past….10
Holmes imagined a law striped of all the language of morality, which he saw as clutter. If he predicted anything, he predicted a world stripped of the moral context of action, everything, from addiction to murder, being capable of being explained scientifically. His solutions are very 19th century, like the noose, but one can see how we got to the therapeutic state through the doorway he opened:
… but the inquiries which have been started look toward an answer of my question based on science for the first time. If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion.11
… I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.12
Holmes seems to have believed that by dismissing all of what he regarded as sentimentality about tradition, and disentangling law from morals, and sticking to some kind of scientific inquiry into how law really worked, we would somehow discover and, I quote directly from the last line of Path of the law, a “hint of the universal law”. This is an interesting choice of words as it suggests a belief in a kind of natural law at work, but one that was entirely mechanistic. Viewed from the perspective of 2024, Holmes’ “step towards that ideal” must be viewed as a great leap backwards from the “good, the virtuous and the just”, which is what the natural law he rejects was really seeking. Holmes in fact unbeknownst to him was ushering in a new modernist dark age, a legal war against our very humanity, in which the soft corrupt science of sociology would rise triumphant, systemic evils would replace real inquiry, and progressive agendas would be uncoupled from any moral or legal restraint.
J.J.A. Shaw, Jurisprudence, 3rd ed. (Pearson, 2019), p. 87
L. Green, “The Essentials of Legal Positivism” in The Cambridge Companion to Legal Positivism (Cambridge, 2021) p. 46
D. Lloyd, The Idea of Law (Penguin, 1985) p. 214
Jurisprudence, supra at 85
Llewellyn, K.N., “The Common Law Tradition: Deciding Appeals (Quid Pro Books, New Orleans, 2016). The original was published in 1960.
Jurisprudence, supra at 88
Llewellyn, supra at 23-24
ibid.
Jurisprudence, supra at 47
O.W. Holmes, “The Path of the Law” 10 Harvard Law Review 457 (1897) pp. 11-12
“The Path of the Law”, supra at 13
“The Path of the Law”, supra at 16