Karl Llewellyn – Legal Realists – The Common Law Tradition

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Like the other two legal realists that we have been looking at (Oliver Wendell Holmes and Jerome Frank), Llewellyn focused on actual disputes in identifying what the law is.

Actual disputes call for something to be done about them so that there may be peace. It is the task of the law to do something about disputes. The persons who perform this function are officials of the law such as judges, clerks, jailors or lawyers. So, “law” is what the officials of law do about disputes.

In his famous book The Common Law Tradition Llewellyn sets out to show that there is no need to think that judges are completely unpredictable and decide cases on a whim (or on what they had for breakfast).  His book aims to show that there is actually quite a lot of predictability in the decisions of the courts.  He focused on the decisions of the US appellate courts.

He examines what he calls  “a cluster of factors” which have a major steadying influence in producing stability  in the work of judges.  This cluster of factors includes:

  • Law-conditioned officials
  • Known doctrinal techniques
  • The limiting of issues
  • The adversarial arguments of counsel
  • The role that the judge is supposed to play in the judicial system
  • The general ‘period style’ employed by the courts

As to the last one, the ‘period style’, Llewellyn wrote that in the common law (UK, US and similar), the practice of the courts has fluctuated (swung back and forth) between two styles: the Grand Style and the Formal Style.

The Grand Style is based on an appeal to reason and common sense. There is no strict following of precedent. Policy is used by judges to achieve a sensible result.

Compare with…

The Formal Style, on the other hand, means that the rules of law decide the cases; policy is for the legislature, not the courts and therefore this approach is authoritarian, formal and logical.

The Grand Style was, according to Llewellyn, more popular at the time he was writing, which he said gave the impression of unpredictability. But he says that is not correct. This misconception is caused by a lack of understanding about the ways in which courts use precedent and the tremendous leeways which are created by the system of precedent.

Something interesting in his writing is his mention of something called “situation sense” which he says that judges in the Grand Style use when making decisions.  What did he mean by that? Perhaps he meant that “insight and wisdom is developed whereby the judges will achieve a kind of reasonable criterion…and arrive at a wide measure of agreement as to what are the appropriate legal solutions which are worthy of approval by the community” – Lloyd’s Jurisprudence at 994.

I think Llewellyn was saying that judges, by virtue of their position, achieve a certain amount of uniformity in their behavior and thinking. See this extract from his book:

The place to begin is with the fact that the men of our appellate bench are human beings … And one of the more obvious and obstinate facts about human beings is that they operate in and respond to traditions … Tradition grips them, shapes them, limits them, guides them … To a man of sociology or psychology … this needs no argument. (1960, p. 53)

I think he is saying that the very position of judge narrows the types of people that can take up the position. Then when they practice as judges, they come to accept certain values and ways of thinking which are to some extent uniformly accepted. He emphasisedthe role  of judges. He and others (like Cohen) said that judges are a special breed of human being.

The bottom line, however, seems to be that his theory is all about common sense, that there is no single right answer to a case, but that there is quite a high degree of predictability and uniformity in the decisions of the appellate courts due to a number of factors, including the judicial office. He said that judges will usually

Conclusion about legal realism, in general:

This is an extract from Companion to Philosophy of Law and Legal Theory p249:

“What judges really do, according to the realists, is decide cases according to how the facts of the cases strike them, and not because legal rules require particular results; judges are largely “fact-responsive” rather than “rule-responsive” in reaching decisions.

How a judge responds to the facts of a particular case is determined by various psychological and sociological factors, both conscious and unconscious. The final decision, then, is the product not so much of “law” (which generally permits more than one outcome to be justified) but of these various psychosocial factors, ranging from the political ideology to the institutional role to the personality of the judge. Thus, the legacy of realism in both the practice and teaching of law consists of phenomena like these: lawyers now recognize that judges are influenced by more than legal rules; judges and lawyers openly consider the policy or political implications of legal rules and decisions; law texts now routinely consider the economic, political, and historical context of judicial decisions. In this sense, it is often said that “we are all realists now.”

This summarises what we have been learning about the legal realist movement. It changed the way that lawyers and judges see the law and the judicial process to such an extent that it now part of the  accepted, mainstream way of understanding the law. It ultimately won and legal formalism lost, if you like, because the ideas of the legal realists are widely accepted.

Sources:

  1. Lloyd’s Introduction to Jurisprdence 8th ed pp988-996
  2. Jurisprdudence Legal Philosophy in a Nutshell
  3. Companion to Philosophy of Law and Legal Theory, 2nd ed, Dennis Paterson (ed), Chapter 15

 

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