Wendell Holmes and Jerome Frank: The Legal Realism Theory





Wendell Holmes and Jerome Frank: The Legal Realism Theory


Legal realism as a law concept was first introduced into the American system by Wendell Holmes and later defended by realists like Jerome. The theory argues that the law is made up of ‘prophecies of what the court aims to do in fact.’ In essence, legal realism is a school of thought that reviews the American judicial system in its orthodox perceptions. The jurisprudence that characterizes law is argued to be an autonomous plan of principles and rules that the court can utilize logically in an objective manner to conclude on a political and judicial decision. The school came to be in the year 1881 when the pioneer made an attack on the traditional application of the law. Despite Holmes and Frank differentiating in the way they review the mainstream law, they both apply legal realism doctrines. Skepticism is imperative in the maintenance of law, but is inapplicable in the determination of ruling given the law is uncertain and informal.

Oliver Wendell Holmes: ‘The Bad Man Theory’

Holmes is the pioneer of legal realism as he is responsible for putting into place the constructive and healthy application of skepticism in law. According to the philosopher, law is not similar to mathematics in its application of logic. According to his realism, law is based on a combination of logic and experience meaning the true meaning within a statue cannot be expounded through the application of formal deductive logic alone. A judge is supposed to make a conclusion of a trial using his or her personal understanding of what is correct. To highlight on the applicability of the approach in reality, Holmes hypothesized the case of a bad man. In the hypothesis, Holmes argues that the bad man predicts the actual nature of law with more success than lawmakers do (Dimock 67). Because of his care for material resources, the perpetrators knowledge enables him to predict both inside and outside the law.

Jerome Frank: ‘The Father’s Symbol Theory’

Jerome supports legal realism in his perception that law is not variable, formal, or certain. According to the philosopher, the conclusion made by a judge is based on personal experiences with family, friends, religion, education, and vocations. In this, Jerome hypothesizes legal realism with the Father’s Symbol. The hypothesis shows how a person in his or her childhood places trust in the wisdom and power of the father. However, in adulthood, the person places trust on the stability of human institutions. Because of this, law is more than a set of abstract rules making technical legal evaluations insufficient in the comprehension of how law functions (Dimock 68).

Objections against the Theory of Law

The Antecedence of the Judge before the Law

One of the premises that legal realists employ is the perception that a judge bases his o her conclusion in accordance with life experiences. By putting emphasis on what officials do in their proceedings, realists are led by the notion that there is no law in existence until the officials perform (Dimock 74). A prediction that argues a person will act in a certain way negating human dynamicity is similar to those made by meteorologists. Despite the weather forecaster stating the occurrence of hailstorms, he or she has no power on the actual occurrence. However, constructive critique is that the prediction of weather can be applicable in dressing. Essentially, the prediction of official behavior is applicable in law but is not the sole determinant of its nature of applicability. Law in reality is present whether a judge makes a ruling or not.

Null Validation of what is referred to as Legally Relevant

Argued by Holmes is that a judge bases his conclusion on his personal sense of what is correct (Dimock 69). Given that legal realism approaches law through assumptions of official behavior, the theory necessitates the integration of attorney evaluation to determine the basis of their actions. Attorneys contemplate facts to derive legal relevance. Despite realism not defining relevance fully, the value represents a short description of how lawyers generalize information from factual situations. In education, lawyers train in how to determine the outlooks of a judge by her they approach events during trial. In essence, a lawyer has a ‘feel’ of how the courts behave. When a client inquiries on what is the law, a lawyer has the ability to expound on the question with more insight when compared to a judge. This is because the attorney has a broader understanding of the court including official behavior. Judges only cite rules, meaning their understandings of legal relevance are less accurate.

Legal Realism cannot Account for Different Predictions that use Similar Facts

Consider two lawyers working within the same jurisdiction. Moreover, the attorneys are from the same school of law. What are the consequences if the two lawyers respond divergently to the same set of facts? Under the concepts of legal realism, divergence is because of personal experiences, intelligence gaps and the amount of time committed to the case by each of the lawyers. If one lawyer is more confident of his understanding, he may advise a client with the incorrect information given that comprehension is based on a sense of correctness and not facts. On the other hand, the less confident lawyer may opt not to give advice to the client despite his or her perception being accurate. The precedent argument in the divergence is the complexity in conceptualizing law based on human (official) conduct. Human predictions are highly susceptible to personal biases. Given that legal realism regards law as predictions of judicial behavior, divergence in assumptions implies a single legal statute has more than one meaning.

Over Application of Human Factors in Law

One major flaw in the approach made by realists is their ignorance of the portion of law that is derived outside the walls of courthouses. It is inaccurate to believe that law is designed and modified only through the application of court decisions. The realist school of law in this exaggerates the role played by human personnel in the passing of judicial decisions (Dimock 71). It is imperative to understand that judges do contribute to the enactment of laws, but their main responsibility is to interpret the legal doctrines (Dimock 73). The officials integrate a number of non-human variables to interpret accurately the legal guidelines when about to make a judicial ruling. Over application of human factors in the realist school of law means that regulations are not in effect outside courthouses. Moreover, it means that judicial settings are confined locally in accordance with individual senses of the officials present. Essentially, there is no set standard in judicial settings in divergent states.

Applicability of the Objections to Rejecting Legal Realism

The arguments made to reject concepts in legal realism are both advantageous and disadvantageous. In meaning, some of the arguments are applicable to completion, while others cannot be applied. Applicability is determined by the relationship between halls of science and time. In the modern society, science in law is necessitated to include secondary variables in economics, anthropology, natural sciences, and sociology as opposed to traditional science. The divergence between the two periods in science is what determines the applicability of the objections. For instance, the objection in the null validation of what is considered legally relevant is not applicable in negating legal realisms. Critiques of the theory argue that attorneys have a greater understanding of law given their integration of external factors. However, judges have the sole responsibility of interpreting law and applying it with respect to the trial situation.

The antecedent of the judge to the law is, however, the most applicable argument in the rejection of the realism theory in the modern idealism environment. Recent trends in the liberal and democratic societies depict increasing public interest in the litigations of judicial activism. Irrespective of political regime or judicial system, judges have to base their decisions within the constraints of their constitution. In meaning, judges cannot negate to consider the set legislative enactments and statutes in their interpretations. By putting emphasis on what officials do in their proceedings, realists are led by the notion that there is no law in existence until the officials perform. This approach makes it more probable for judges to act outside their jurisdiction or under implement the true meaning of a legislative statute.

The liberal jurisprudence does not subscribe to the philosophies of the legal realists. Liberal executives do not focus on the functional features of the law. Contrastingly, it relates the facets to the realities of social life. This is supported by the objection that there is over application of human factors in law. Liberals to refuse that judge-made law represents the only legal enactments present in the society. Liberal executives also include socioeconomic legislations. Moreover, liberal executives consider alien social factors that are different from their lifestyles to understand the basis of actions. For instance, in the persecution of immigrant non-citizens, ideal courts consider the state and rules of the individual and that of his or her native republic prior to judgment.


Legal realism as a law concept is a school of thought meant to analyze the American judicial system in its orthodox perceptions. Introduced by Wendell Holmes and later defended by realists like Jerome, the critique is imperative in the maintenance of law, but it is inapplicable in the determination of ruling given the law is uncertain and informal. Inapplicability is encouraged by the fact that there is the overstating of the role played by human factors in the derivation and application of law. Legal enactments include non-human factors that equally exist outside the walls of judicial courts such as socioeconomic legislations and alien factors. Moreover, human factors are highly susceptible to personal biases meaning an attorney or judge is likely to act outside the limits of their jurisdiction. Public interests in the present democracies supervise the exercise of power employed by judges meaning actuation of legal realism is inapplicable today. The concept argues on the antecedence of the judge before the law, an approach that is not tolerable given the requirement of the judiciary to function within its legislative limits.



Work Cited

Dimock, Susan. Classic Readings and Cases in Philosophy of Law. New York: Pearson Longman, 2007. Print.


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