UI 305  Judicial Reasoning

American Legal Realism

American Legal Realism presents an alternative to Natural Law Theory and Legal Positivism.

Best known advocates of this school of thought are Oliver Wendell Holmes, Jr., Jerome Frank, Karl Llewellyn, and Benjamin Cardozo.

 

American Legal Realism is a form of rule skepticism, that is, legal realists challenge the idea that there are any rules at all.  The debate between the legal positivists and natural law theorists is about which positive laws (duly enacted human laws) really count as laws.  The positivists argue that so long as a rule is properly created (properly posited) then it is a valid rule.  The natural law theorists argue that only those positive laws that are just (or in accordance with the higher law) create valid rules.