'Legal Realism and Natural Law' by Dan Priel and Charles L. Barzun in Maksymilian Del Mar and Michael Lobban (eds)
Law, Theory and History: New Essays on a Neglected Topic (2015)
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The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more than a passing endorsement of natural law theory. The purpose of this essay is to try and explain this seemingly odd aspect of their work and in this way help in reassessing their work. We do so by explaining how they understood natural law and how they incorporated it in their work. Though they did not understand the term in precisely the same way, for both of them natural law was connected to the values of the community, which both of them thought were central to understanding law, for explaining how it could remain relatively certain, and ultimately, how it derived its authority.
Priel and Barzun argue
And yet, when one looks at the works of the people who called themselves ‘legal
realists’, matters look less clear cut. Hessel Yntema stated that ‘the classification of
American legal realism in the category of positivism along with Austin, Kelsen, etc., is
so superficial as to border on the perverse’. This does not yet show that the realists
saw themselves as natural lawyers—after all, they might have seen themselves as a new
kind of approach to law—but it already somewhat destabilizes the association between
realism and positivism. Even more surprisingly, when one turns to the works of the
two most famous legal realists one finds in them clear affirmations of a positive connection
between legal realism and natural law. As early as 1938 Karl Llewellyn wrote
that ‘it is difficult for me to conceive of the ultimate legal ideals of any of the writers
who have been called realists in terms which do not resemble amazingly the type and
even the content of the principles of a philosopher’s Natural Law’. Even more surprisingly,
Jerome Frank, usually considered among the most extreme realists, the one
realists whose views are sometimes thought to border on nihilism, stated: ‘I do not
understand how any decent man today can refuse to adopt, as a basis of modern civilization,
the fundamental principles of Natural Law.’ As these words do not fit the
image Frank as the ‘bad boy’ of legal realism, they are not often discussed. When they
are, they are explained away as reflecting the views of the ‘later’, mellower Frank (by
then a federal appellate judge), troubled by the horrors of World War II.
We will address this claim in more detail below, but already here we will note
some difficulties with it. In the same year Frank wrote the words just quoted, he published
Courts on Trial, which is hardly a complacent look at the legal system. On the
other hand, already in 1932 Frank forcefully denied that the realists are ‘“positivists”
who are exclusively devoted to whatever is now happening in the legal world’. The
realists, he said, were all ‘eager…to improve the judicial system, to make it more efficient,
more responsive to social needs, more “just”, if you like that word’.
One aim of this essay is therefore to make sense of these seemingly odd statements.
We will argue below that rather than suggesting a radical change in the views
of Llewellyn and Frank, they reflect ideas that can be found in even in their earliest,
and seemingly most critical, works. Before we proceed, however, we must add an important
caveat. While Llewellyn and Frank were in their day, and remain to this day,
among the best-known legal realists, we do not claim that they are necessarily representative
of all legal realists, let alone of some abstract construct called ‘legal realism’.
Both Llewellyn and Frank often warned against the ‘Schools’ approach to jurisprudence
for its tendency to lump together different thinkers who are in fact quite different.
Indeed, what we say below is not meant to deny that some self-described legal
realists expressed scepticism about natural law ideas. And as our argument unfolds, it
will become apparent that even Llewellyn and Frank understood the term somewhat
differently. One incidental aim of this essay is thus to serve as reminder that all attempts
to identify what legal realism is should be treated carefully. Such efforts are
often illuminating, but they must be understood as constructs of the views of numerous
individuals who on many things held quite different views. In this essay we therefore
limit our focus to an analysis of the views of two legal realists.
One stumbling block to any meaningful discussion of the question any possible
relationship between legal realism and natural law requires some clarification of the
possible senses in which Llewellyn and Frank thought of themselves as natural lawyers
and (if this is any different) opponents of positivism. In so doing, we must begin
by setting aside several possible interpretations of these terms as inadequate. To
begin, neither Frank nor Llewellyn believed that consistency with true morality was a
condition of legal validity (or, more colloquially, that an unjust law was not valid law).
From the vantage point of contemporary jurisprudence, this may seem odd, as the
divide between legal positivism and anti-positivism is often defined in terms of legal
validity. But from a historical perspective, the absence of a discussion on the matter of
legal validity is unremarkable. If one looks at the long history of natural law thinking,
one finds the conditions of legal validity rarely discussed. In fact, in English one is
hard-pressed to find any discussions that pit legal positivism against natural law before
1930s. Even today, some natural lawyers deny that ‘natural law theory’ is committed to
the view that an unjust law is not law. Since many prominent natural lawyers profess
a decided lack of interest in the question of legal validity and are willing to countenance
the possibility of unjust laws, the absence of a discussion of this question in
Llewellyn and Frank’s works does not undermine our suggestion that they endorsed
versions of natural law.
After setting aside such questions, is there any remaining interesting connection
between legal realism and natural law? Even if so, is the connection of more than antiquarian
interest today? Our answer is, Yes and yes. First, by appealing to natural
law Frank and Llewellyn both signalled their commitment to the reality of value and
the possibility of reasoning about it. Even if they could not come to accept everything
carried under the banner of natural law, they maintained a faith in some notion (however
vaguely specified) of moral reality. Second, Llewellyn and Frank believed that
one could not clearly distinguish between legal and other sorts of norms, whether
moral, social, or political. And third, Llewellyn and Frank saw their views about law
and jurisprudence as closely related to inquiries about politics, and especially American
politics. More specifically, their account of law was an account of American law,
which they presented as intimately tied to American democracy, both of which they
explicitly connected to natural law.
Not every legal positivist will disagree with all three points; the third one in particular
is these days accepted by many legal positivists. But taken together, these three
points represent a position clearly at odds with the views of many twentieth century
and contemporary legal positivists, including the most prominent Anglophone legal
positivist, H.L.A. Hart. Indeed, on all three counts Llewellyn and Frank can count
as allies Hart’s primary anti-positivist antagonists, Lon Fuller and Ronald Dworkin,
both of whom, at least on occasion, associated themselves with natural law.
'Legal Realism and Legal Doctrine' by Brian Leiter in (2015)
University of Pennsylvania Law Review (forthcoming)
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In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: "doctrine" after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm "this breach of contract is efficient" still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.
