A movement in legal theory known as legal realism emerged in the latter half of the 19th century and peaked in the early 20th century with progressivism. It argued against formalist laissez-faire legal theories and in favor of a jurisprudence that is more deliberately sensitive to empirical research and social reality. Since then, other interpretations of the realists have been offered, and they have had a significant impact on American law.

The following bibliography aims to give a summary of works by and on legal realists, with a focus on the aspects of realism most pertinent to a Law and Political Economy approach to the law. The text that follows provides a succinct overview of the background, defining arguments, and lasting effects of realism.

From Formalism to Realism

The goal of legal realism was to make the law more in line with the real stakes. They looked at the character of court rulings, the social effects of laws, and the conventional legal theories of the Gilded Age and the nineteenth century. It was a movement in legal philosophy that included many different perspectives and methods of interpreting the law. One of the few things about the history of realism that all academics, from its detractors to its supporters, appear to agree on is its multiplicity. Subsequently, we shall dissect realist philosophy into its two primary streams and concentrate on the one that best serves our objectives.

It will be beneficial to examine realism as a whole first, though. This will entail looking at its roots in the development of American legal philosophy, namely in the intellectual movement against legal "formalism," or what is sometimes referred to as "Classical Legal Thought." Realists were extremely unhappy with legal formalism because they saw it as the dominant legal theory of the day.

The Politics of Realism: Realism and Laissez Faire

So far this has mainly been a story with very abstract characters: two opposed theories of law. A little more historical texture is called for, in the form of both actual cases and the social circumstances in which they were announced. We can speculate that the appeal of Classical Legal Thought may have depended on the certainty and stability it promised during the relatively turbulent decades of the late nineteenth century, which saw widespread labor organization, immigration, urbanization, and continuing industrialization. Of course, this "stability" came at the expense of particular interests who sought to assert themselves at this time, labor unions chief among them.

The substantive ideological assumptions of classical jurists were arrayed against these sorts of market actors. "Liberty," for the formalist, meant freedom from interference by the state. For the formalist, "liberty" meant not having the government meddle with one's affairs.

As declared in Allgeyer v. Louisiana in 1897, the Constitution guaranteed a fundamental right to freedom of contract; this right would serve as the foundation for the Court's infamous anti-regulatory decision in Lochner v. New York in 1905. It was unconstitutional to interfere with the right to freedom of contract by regulating the job relationship.

Two Strands of Legal Realism

Thus, the belief that formalist explanations of the law were insufficient was the foundation for all legal realists. The goal of realism as a whole is to subvert the notion that the legal system should function as an independent entity that makes judgments by looking inward, to the realm of legal conceptions, rather than outward, to the society it is supposed to regulate. In the words of realist pioneer Oliver Wendell Holmes, "The life of the law has not been logic: it has been experience." The difference between "law in books" and "law in action" was first made by Roscoe Pound, who also maintained that one could not genuinely comprehend the law without consulting the latter.

Both the author and the reader of the opinion or argument are prone to forgetting the social forces that shape the law and the social ideals by which the law is to be judged when the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds. Because of this, even the most intellectual judges in America are able to handle actual legal matters involving procedural law and corporate responsibility without having any understanding of the broader ethical, social, or economic implications.

Cohen argues that the law already "involves" a wide range of "economic, social, and ethical issues," therefore it shouldn't only be driven by the desire to alter social conditions. Cohen and other realists frequently maintained that it was best to handle these problems openly, honestly, and without legalistic mystification. At best, it was careless to bracket them; at worst, it was a tactic used by judges to hide their ideological prejudices.

Critical Realism and its Characteristic Moves
This was not how Robert Lee Hale, a legal realist, saw things. The burgeoning institutional economics movement, which opposed the conventional static, individualistic economic models and instead highlighted the importance of cultural and social institutions in the economy, provided inspiration for realists like Hale, who was a trained economist. It was clear to institutionalists like John Commons that the government was "interfering" in the economy already.

It established the economic principles that even the most laissez-faire capitalism would have to go by, including the laws governing contracts, property, torts, trusts and estates, bankruptcy, and other matters.

We Are All Realists Now; or, Who's a Realist Now?

It may be argued that legal realism's effect has become so ingrained in the legal system that it is now challenging to identify it. According to Joseph Singer, realist impact may be seen in almost every facet of contemporary legal theory, chief among them being the way it fundamentally changed the structure of strong legal arguments.

Nowadays, all modern attorneys argue using the language of line drawing, balancing opposing interests, and policy consequences—instead of appealing to the intrinsic essence of abstract concepts. In this sense, realists are almost universally those who claim that the purposes of law should be determined from considerations outside of a narrowly defined legal sphere or who apply social science to the law.

The legacy of realism is debatable at the same time. Several writers explore various assertions made by the realism cloak in the readings that follow. In favor of more restricted doctrinal work, Mark Suchman and Elizabeth Mertz examine two of the most prominent modern tendencies in empirical legal studies, which focus an emphasis on qualitative and quantitative research regarding legal results and the social effects of the law.

According to Victoria Nourse and Gregory Shaffer, law and economics are actually a type of "new formalism " against which numerous new anti-formalisms have evolved, rather than being essentially realist. Thus, it is possible to view scholars of law and economics as advancing the overall ground already plowed by realism without necessarily engaging in particularly "realist" work.

Modern critical scholars, including and especially those who focus on the ways in which race, gender, and economic equality are reflected in and entrenched by the law, might therefore be said to be the truest inheritors of realism's critical strain. Hale's analysis of property and bargaining power can and has been used to show how legal rules distribute power disproportionately to white people and to men.

One's power to act to, say, leave an abusive partner, is substantially constrained by the legal rules and practices that structure gender relations: family law, employment law, the criminal law of domestic and sexual violence, available social welfare supports, and so on.

Written By: Akanksha