Karl Llewellyn
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 “ruleresponsive” 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:
Lloyd’s Introduction to Jurisprdence 8th ed pp988-996
Jurisprdudence Legal Philosophy in a Nutshell
Companion to Philosophy of Law and Legal Theory, 2nd ed, Dennis Paterson (ed),
Chapter 15