American Realism versus Scandinavian Realism

Think of a cricket match. One spectator says: forget the rule book; if you want to know whether a batsman is out, watch the umpire, because his finger decides. Another says: the very words 'out', 'run' and 'wicket' are not things in the world at all; they are ideas that make twenty-two people behave in a certain way. The first is an American realist, interested in the umpire's actual decisions. The second is a Scandinavian realist, interested in how normative words work on the mind. Both are realists, because both look behind formal rules to facts; but they look at different facts. The general account is in Note 15.

Figure: American realism looks to the judge's actual decision; Scandinavian realism treats right, duty and binding force as psychological facts rather than real entities

1. American Realism

The forerunners were Oliver Wendell Holmes and John Chipman Gray. Holmes's The Common Law (1881) opened with the reminder that the life of the law has been experience rather than logic, and The Path of the Law (1897) told lawyers to look at law as a bad man does, who cares only about what the courts will actually do to him. Gray, in The Nature and Sources of the Law (1909), held that the law consists of the rules the courts lay down; statutes, precedents and customs are only sources of law until a court applies them.

The movement proper flourished in the 1920s and 1930s. Karl Llewellyn, in The Bramble Bush (1930), said that what officials do about disputes is the law itself, a remark he later qualified. His article 'Some Realism about Realism' (1931) denied that the realists were a school and listed the points they shared: law is in flux and is made by judges; law is a means to social ends and must be judged by its effects; society changes faster than law; is and ought should be separated for the purpose of study; the traditional rules and concepts, the paper rules, are distrusted as descriptions of what courts actually do; and cases should be grouped into narrower, more realistic categories. With the anthropologist Hoebel he wrote The Cheyenne Way (1941) and developed the law-jobs theory: every group's law must perform certain tasks, above all disposing of trouble cases, channelling conduct and expectations in advance, and allocating authority to decide.

Jerome Frank, in Law and the Modern Mind (1930), argued that the demand for legal certainty is a basic legal myth, a childlike longing for the security of a father figure, which the law cannot and should not satisfy. Judge Hutcheson's 1929 article described the judge deciding by a hunch and then finding reasons to support it. Not all American realists were sceptical in the same way, however. Frank later drew the distinction, developed in Courts on Trial (1949), between rule-sceptics, who doubt that appellate rules determine decisions, and fact-sceptics, who doubt that trial courts can find the facts reliably, given fallible witnesses, juries and judges. Frank counted himself a fact-sceptic; his main concern was the trial court, where most cases are really decided.

2. Scandinavian Realism

Axel Hägerström (1868 to 1939), professor at Uppsala, founded the school with a philosophical attack on metaphysics; his legal essays appeared in English as Inquiries into the Nature of Law and Morals (1953). A right or a duty, he argued, corresponds to nothing observable in the world, and the belief in mysterious binding forces descends from ancient ideas of magic, still visible in the ritual words of Roman law. Vilhelm Lundstedt pushed this further. In Legal Thinking Revised he rejected 'justice' as an empty guide and proposed social welfare as the method by which legislation should be judged.

Karl Olivecrona, in Law as Fact (1939), described legal rules as independent imperatives. They are expressed in the form of commands, yet no identifiable person commands them: the legislators of the past are dead and those of today did not make most of the law. Rules work because people have been conditioned to respond to them, backed by the regular use of force. A right, for Olivecrona, is not a power in the world; the word acts as a signal that guides behaviour and arouses feelings of strength and confidence in the holder.

Alf Ross, a Dane, in On Law and Justice, defined valid law as the set of norms that judges actually apply because they feel bound by them. A statement that a rule is valid law is therefore a prediction that courts will use it, based on the judges' normative ideology. Ross thus combined behaviour (what judges do, which permits prediction) with psychology (the ideology they feel bound by), and does not fit a neat 'courtroom against mind' split; he is the Scandinavian closest to the Americans. In the essay 'Tû-Tû' (1957) he compared words such as 'ownership' to the taboo word of an imagined tribe: meaningless in themselves, yet functional, because they link a set of conditioning facts (such as purchase or inheritance) to a set of legal consequences (such as the right to recover the thing).

3. The Two Compared

The two share anti-formalism, a view of law as a matter of fact rather than of transcendent ought, and a suspicion of grand abstractions. Like the positivists, they study law as it is; unlike them, they locate it in behaviour or psychology rather than in valid rules. An American realist would say the Scandinavians stay in the philosopher's study and never enter a courtroom; a Scandinavian would reply that the Americans still talk of 'rights' and 'law' without asking what these words refer to.

4. Hart's Critique

In The Concept of Law, chapter 7, Hart answered rule-scepticism with the game of 'scorer's discretion'. A scorer's decision is final, but the game is still governed by the scoring rule; if scorers ignored it, the game would become a different game. Courts are the same: their decisions are final but not infallible, and there is a settled core of meaning in most rules, with uncertainty only at the penumbra. Hart added that a judge applying a rule cannot be predicting her own decision; she uses the rule as a standard, which is the internal point of view that predictive theories miss. In 'Scandinavian Realism' (1959) he made a parallel point against Ross: a feeling of being bound is not the same as accepting a rule as a reason for action. Later, in a 1977 lecture, Hart called American realism 'the Nightmare', contrasting it with the 'Noble Dream' of a judge who always finds the law.

5. Indian Illustrations

Indian courts do not describe themselves as realist. The cases below are illustrations of judicial law-making and of its limits.

6. Frequently Asked Questions

Q. What is the difference between American and Scandinavian realism?
A. American realism is court-centred: law is what courts actually do and can be predicted. Scandinavian realism is philosophical: rights, duties and binding force are not real entities but ideas with psychological effects.

Q. Were all American realists rule-sceptics?
A. No. Frank distinguished rule-sceptics, who doubt appellate rules, from fact-sceptics, who doubt fact-finding in trial courts, and placed himself among the fact-sceptics.

Q. What did Olivecrona mean by independent imperatives?
A. That legal rules have the form of commands but no commander: no living person issues them. They work because people are psychologically conditioned to respond to them, with the organised use of force in the background.

Q. How did Hart answer the realists?
A. Through the scorer's discretion: finality does not mean infallibility, and rules have a core of settled meaning. A judge using a rule is not predicting her own decision but applying a standard from the internal point of view.

See also: Note 15 (realist school), Note 59 (positivism versus realism), Note 60 (natural law versus realism), Note 24 (precedent), Note 47 (certainty and discretion).