Legal Realism

The second strand of realist thought subscribes to the relativistic view that law is nothing more than what a particular court says it is on a given day, and that the outcome to a legal dispute will vary according to the political, cultural, and religious persuasion of the presiding judge. Some realists, such as JEROME N. FRANK, another prominent thinker in U.S. jurisprudence during the 1920s and 1930s, insisted that a judge's psychological and personality characteristics also sway the judicial decision-making process. Justice BENJAMIN N. CARDOZO of the Supreme Court went so far as to characterize judges as legislators in robes.

The notion that judges legislate from the bench was a revolutionary idea that flew in the face of orthodox legal thought in the eighteenth and nineteenth centuries. In The Federalist, no. 78, ALEXANDER HAMILTON enunciated the orthodox position when he said the judiciary is the "least dangerous branch" because it has "neither force nor will, but merely judgment." The legislature, Hamilton said, has the power to prescribe the rights and duties by which the country is to be regulated, and the executive has the obligation to enforce these laws through the power of the sword. The role of the judiciary, Hamilton wrote, is simply to interpret and apply the laws passed by the other two branches.

Hamilton's view resonated in the opinions of Chief Justice JOHN MARSHALL, who wrote that "courts are the mere instruments of the law, and can will nothing" (Osborn v. Bank of United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). Judicial power, Marshall said, should never be exercised for the purpose of implementing the will of the judge. Instead, courts must exercise their power solely to implement the will of legislators, who, as the elected representatives of the American people, embody the "will of the law."

Hamilton and Marshall both believed that law is an autonomous body of knowledge independent and distinguishable from the personal preferences of the judge applying it, and that it is possible to interpret this body of knowledge in an objective fashion. Adherents to this theory of law are known as formalists. In the nineteenth century, formalists asserted that state and federal law constitute a rational system of rules and principles that judges can apply in a mechanical fashion to reach a clear, certain, and uncontroversial resolution to a legal dispute.

Realists, such as Justice Cardozo, questioned the formalists' assumption that law could be autonomous and objective, or produce demonstrably certain outcomes. In The Nature of the Judicial Process, a groundbreaking book first published in 1921, Cardozo argued that law is a malleable instrument that allows judges to mold amorphous words like reasonable care, unreasonable restraint of trade, and due process to justify any outcome they desire.

For example, courts are commonly asked to invalidate contracts on the ground that one party exercised duress and UNDUE INFLUENCE in coercing another party to enter an agreement. Cardozo noted that terms such as duress and undue influence are subject to interpretation. He argued that judges who are inclined to shape the law in favor of society's weaker members will construe them broadly, invalidating many contracts that stem from predatory behavior. On the other hand, judges who are inclined to shape the law in favor of society's stronger members will construe such words narrowly, allowing particular individuals to benefit from their guile and acumen.

Even when language is clear, Cardozo explained, the law often presents courts with competing and contradictory principles to apply and interpret. For example, in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), the New York Court of Appeals was presented with the question of whether a man could inherit under a will that named him as a beneficiary, even though he had murdered the testator, his grandfather. The lodestar of testamentary interpretation, Cardozo observed, is that courts must interpret a will according to the explicit intentions of the testator. In this case, juxtaposed with this seemingly unequivocal rule was the ancient MAXIM of EQUITY, "No man shall profit from his own wrong." Depending on the outcome the court of appeals desired to reach in Riggs, Cardozo concluded, the panel of three judges could have relied on either legal axiom in support of its decision. In fact, the court was divided on the issue, with two judges voting to disinherit the murderous grandson, and the other voting to enforce the will.