Legal Realism and Skepticism

As we look into the topic of legal realism and skepticism we realize that there are basically three basic concepts to understand in this subject. These three tenets are as follows; law is whatever a judge decides it is, law and morality are independent of each other, and rights are conferred. This is in opposition to the theories of natural law and legal positivism. During this chapter we will examine three separate works from three different authors. The first article is “Legal Realism” by Jerome Frank, the second is “The Path of the Law” by O. W. Holmes Jr.

and the third selection is “Ships and Shoes and Sealing Wax” by K. N. Llewellyn. Although these three men are all part of the movement of legal realism, they have differences in their arguments and examples. The differences in their articles help to cover all the bases of legal realism. Jerome Frank was a Chicago lawyer during the time period of the political realism movement. He was appointed to the US Court of Appeals for the Second Circuit by the president, Franklin D. Roosevelt, in February 1941. In the article “Legal Realism” by Jerome Frank a dispute between two taxi companies is examined and discussed.

The main concern of this article is what law means to the average man when he is consulting with an attorney. Through the examination of this case you see that the interpretation of the law depends on which court the case is being tried in. In this case Blue & Gray Taxi vs. Williams Purple Taxi, there is a dispute between two cab companies about who has the right to certain territories due to an agreement between the Blue & Gray taxi company and the A & B railroad company. The rail company had signed an agreement stating that no taxi company would be allowed to pick up or drop off passengers on their premises.

When the Williams Purple Taxi company started infringing on their territory, the Jones family, owners of the Blue & Gray Taxi Company, sought counsel from a local lawyer. This attorney advised the Jones family that their agreement with the A & B rail company was invalid due to the Kentucky state monopoly laws. After learning that they would likely lose the case due to the Kentucky monopoly laws, the Joneses decided that they wanted to take their case to the Federal Courts. The lawyer representing the Joneses informed them that since their company

was based in Kentucky, the United States courts would rule against them due to the Kentucky laws. After this setback, the attorney who represented the Joneses gave them the idea to move their company to Tennessee, where the monopoly laws were less strict and they were more likely to get a court to rule in their favor. With this advice he also gave them a warning, if the federal courts realized that they had moved solely to trick the system they would not use the Tennessee laws to rule in their case. Instead they would revert back to the Kentucky laws and the Joneses would likely lose.

With this advice, the family decided to move their holdings to Tennessee and try to make a case to take to the US Supreme Court. Despite all of the risks, the Jones family decided that it was time to take their case to the Federal Courts and try their luck with the US Supreme Court Justices. After this trial, six of the nine justices agreed with the side of the Joneses and the law was fixed. Had this gone the other way around, the law would still have been fixed and there would have been no other courts that the Joneses could appeal their case to. Frank uses this specific case to show the difference between probable law and actual law.

Probable law is a “guess to a specific future decision” while actual law is “specific to a past decision, as to that situation. ” This is basically saying that the law is up to the interpretation by the judge ruling on the case, unless this specific issue has been ruled on before. Even still, if this has been ruled on before and it is said to be “actual law”, Frank says that “The answers are in fact prophecies or predictions of judicial action. It is from this point of view that the practice of law has been aptly termed an art of prediction. ” Oliver Wendell Holmes Jr.

was a US Supreme Court Justice for thirty years. He is said to be one of the most influential leaders of the legal realism movement. He was appointed to the Supreme Court by Theodore Roosevelt and is one of the most cited justices in the history of the Supreme Court. He fought during the Civil War and did not retire from the Supreme Court until the age of ninety. The second article discussed in this chapter is called “The Path of the Law”. In this article O. W. Holmes discusses the law from a utilitarian standpoint. He urges us to look to the law as a means to an end rather than rights of people.

He also discusses how the wrongful mixing of morality and lawfulness leads to nothing but confusion in our court system. Holmes offers some controversial critiques of our law system throughout his article. He says that we should focus on the effects of the law rather than its moral correctness. To explain his belief he uses his “bad man theory”(Holmes 2008), the bad man only looks at the law as the material consequences of his actions and we should look at it this way as well. The bad man has no thought about the moral implications of his law breaking.

He says that morality and law should be separated; he wants the future of our law to be designed by the man of statistics and master of economics rather than philosophers of ethics and religious leaders. Throughout his article homes makes many points to support his point of view, but he also contradicts himself and makes a few outrageous claims. Holmes contradicts himself by acknowledging that “the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race”(Holmes 2008), and then saying that the two matters should be completely separated.

Just because these two subjects could possibly be confused it does not mean that they should be completely separated. Lawmakers should make the legal rights of man as closely conforming to his moral rights as possible. Holmes lays a foundation that will be satisfactory for someone who is seeking more precision in the law based on social sciences, but he neglects the fact that the “bad man” will not only refrain from committing illegal acts due to the punishment of the state, but also due to the moral punishment by the community and his own conscience.

Llewellyn looks at the law through a logical standpoint using actual law as his basis. He, along with Holmes, is one of the most cited legal scholars from the twentieth century. In his article “Ships and Shoes and Sealing Wax”, Llewellyn talks about the study of law being the ultimate question of what the courts will do and how they will handle each situation. He also says that law applies not only to what the situation is, but what the situation ought to be. He uses hypothetical case discussions to show what a judge should do in certain situations.

Llewellyn says that there are three different types of people who are concerned with the law. These three people are the observer, the lawyer, and the judge. The observer can see the past decisions and study what happened but they cannot accurately predict what will be done in the future. The lawyer, also called the advocate, must convince the court but he cannot force a decision deductively. If a lawyer tries to force a decision deductively he is telling the court that since the law X says to do Y in case Z, and the court must uphold law X, then the court must do Y.

He also cannot force a decision inductively. If a lawyer tries to force a decision deductively he must consider several attributes of the case. He must make sure that the past case fits the current situation exactly, sometimes the lawyer has to leave out certain details to make this so. He must also take the attitude of the current judge compared to the judges of the past. If the lawyer fails to check any of these details the current judge may not agree with your reasoning and in turn will not admit the similarities.

Since logic is either inductive or deductive, a lawyer cannot practice law based solely on logic. The lawyer must also understand how his logic will compare to the current political and moral climate. The third person who is concerned with the study of the law is the Judge. The judge is taxed with the responsibility of what data to consider in each case, how to integrate this evidence into the case, and he also must decide on the legal significance of the data. The decisions of the judge can be greatly affected by how the advocate presents the data pertaining to each case.

It is easy to side with these three men after they provide such convincing examples. The legal positivists basically say that there is no justification for a legal system and that the legal system of the United States is illegitimate. They say that since our system is unjust and illegitimate that the subjects have no obligation to follow the laws set in place. I disagree with this and side with the legal realists. The law is up for interpretation by each individual court and judge. Legal realism arose around the same time as legal positivism as an opposition.

The legal realists also disagree with natural law. I believe that there are definitely flaws in our legal system but it is the best one that anyone has come up with. Without laws to govern the actions of the US citizens our country would not be able to run smoothly. Although I basically agree with these three men I think that the argument Holmes makes about separating morality and law is not completely valid. There should be a line between moral law and the laws of our legal system but these two should still be closely related.

Our laws are designed to protect the rights of our citizens and these legal rights should be closely related with our moral rights. Another problem that I find with Holmes’ article is his use of the “bad man” theory. We should not base our legal system on the way criminals look at crimes. That would just create a country criminals rather than people who look down upon crime. I also agree with Llewellyn’s opinion that law is not the general rules of the law, but rather what the enforcers of the law make it out to be. The only interpretation that matters is theirs. That may not be ideal but that is definitely the way things are.

Legal realism arose to combat the ideas of the legal positivism movement in the late nineteenth century. These three men are the most powerful leaders of the legal realism movement and they provide nearly indisputable evidence to back their opinions on this matter. Through these three articles it becomes clear what each of the authors thinks about the legal system of the United States. The opinions of these men show that the facts of each specific case are more important than the general legal rules and each case should be individually examined in order to determine a just outcome.

The outcome of each case is to be decided by the judge presiding over the hearings. Frank, Jerome. Legal Realism and Skepticism. Legal Realism. Edited by Worth Hawes. Belmont, Ca: Thomson Wadsworth, 2008. Holmes, O. W. Legal Realism. The Path of the Law. Edited by Worth Hawes. Belmont, Ca: Thomson Wadsworth, 2008. LLewwllyn, K. N. Legal Realism and Skepticism. Ships and Shoes and Sealing Wax. Edited by Worth Hawes. Belmont, Ca: Thomson Wadsworth, 2008. Wikipedia, “Legal Realism. ” Last modified January 30 2012. Accessed February 13, 2012. http://en. wikipedia. org/wiki/Legal_realism.