Legal Realism

Legal realism is a naturalistic approach to law. Legal realists believe that the legal science should investigate law exclusively with the value-free methods of natural sciences, also called 'sciences of the real' in some Continental languages (e.g., 'Realwissenschaften', in German). Some legal realists (e.g., Leon Petrażycki or Max Weber) also hold that there should exist, too, a legal dogmatics, which is independent of legal science proper but, this notwithstanding, can be regarded as a science in its own right (and so, despite its being a non-real, or formal, science). However the focus of all legal realists is on legal science proper. Due to their value-free approach, legal realists are opposed to natural law traditions. Legal realists regard these traditions as historical and/or social phenomena to be explained by making use of a variety of psychological and sociological hypotheses. They are also opposed to any form of linguistic turn in jurisprudence. When applied to law, they regard the linguistic turn as a sort of 'emasculation' (Enrico Pattaro) of legal phenomena. This is so because legal realists conceive legal phenomena as psychical phenomena, and, notably, as a form of moral motivation of human behavior (to be investigated with the methods of psychology and/or neurosciences). All this implies that legal realists are opposed to most versions of contemporary legal positivism. A further difference from all sorts of legal positivism is that legal realists refuse to confine their investigations to state law and/or positive law. Moreover, legal realists have a conception of law that stretches far beyond legal pluralism—so popular in many versions of classical and contemporary sociology of law. This is one of the reasons why legal realism cannot be regarded as a sort of sociology of law (other reasons being: legal realists' psychologism and their refusal of the linguistic turn—a turn that affected, too, sociology of law). Apart from Max Weber (who, owing to a variety of reasons, is mostly conceptualized as sociologist rather than as a legal realist), there are two strands of legal realism in this sense: Scandinavian legal realism, founded by Axel Hägerström (1868-1939), and Polish-Russian legal realism, founded by Leon Petrażycki (1867-1931). Both realisms, owing to their similarities (and despite their founders' ignoring one another), are sometimes referred to as 'continental legal realism' (in the singular).

In English-speaking countries the phrase 'legal realism' has often a somewhat different and more restricted meaning. It is used to refer to a conception of adjudication rather than of law in general. However, some legal realists in this other sense, including the founder of this movement Oliver W. Holmes, reduced law to the activity of courts and other state officials, thus proposing a kind of naturalistic and value-free reduction of law (a conception, though, that all continental legal realists would reject, inter alia, as excessively narrow). It is to this other kind of legal realism—also called 'American legal realism'—that this entry is devoted.

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