Legal Issues

During the first half of the 20th century, a theory which focused on the nature of law was developed in the United States.  This theory was known as legal realism and had such proponents as Justice Benjamin Cardozo, Justice Brandeis and, of course, Justice Oliver Wendell Holmes, who is probably the most identified with legal realism in the United States. The premise behind the theory of legal realism that Justice Holmes made so popular was the idea that law was created by man, and therefore, the law is subject to flaws, impurities, imperfections and other human foibles.  Legal realists, such as Justice Holmes, supported the notion that since the law is indeterminate the judiciary must consider extralegal factors to resolve disputes that come before them. Although different components of legal realism are flawed, not only it is factual that the U.S. judiciary consistently relies on extralegal considerations to interpret the law, it must do so.

Legal realism challenges the premise that U.S. jurisprudence is an autonomous system of rules and principles that courts can logically apply in an objective fashion to reach a determinate judicial decision (Law Encyclopedia Legal Realism,  HYPERLINK httpwww.answers.comtopiclegal-realism httpwww.answers.comtopiclegal-realism). Proponents of the theory hold that adjudication of laws is a subjective system that sometimes produces inconsistent results because political, social and moral predilections of state and federal judges come into play (Law Encyclopedia Legal Realism).  Legal realists focus on what the law is instead of what the law should be.

Legal formalists, on the other hand, disagree and support the idea that U.S jurisprudence an autonomous system where rules and principles can be objectively applied to situations that came before the judiciary.  Legal formalism argues that judges interpretation of laws and principles must be constrained to the plain meaning of the law (Legal Formalism Encyclopedia II-Legal Formalism-Formalism Explained,  HYPERLINK httpwww.experiencefestival.comaLegal_formalism_-_Formalism_explainedid5227597 httpwww.experiencefestival.comaLegal_formalism_-_Formalism_explainedid5227597). Simply, the legal formalists believe that the law is supposed to be a set of rules and principles that are independent of social and political considerations.

Justice Holmes is responsible for bringing attention to the social aspect of the law.  One of his most famous quotes was, The life of law has not been logic, it has been experience (Novick, 1989).  Holmes believed that the law was the result of judges interpreting the rules in conjunction with political, social and other extralegal considerations.  In The Common Law, an 1881 published work based upon a number of lectures given by the Justice at the Lowell Institute, Holmes attacked legal formalisms reliance on natural law and rights. The Justice argued for an objective model and community standards to be used as guides (Oliver Wendell Holmes,  HYPERLINK httpwww.michaelariens.comConLawjusticesholmes.htm httpwww.michaelariens.comConLawjusticesholmes.htm).  However, after a number of societal disruptions in the mid-1890s, the Justices theories changed.

During the mid-1890s there were labor-management conflicts throughout the United States and other disruptions in society.  In dealing with these disputes, Holmes realized that there werent always community standards available to act as a guide. In 1897, he published The Path of the Law in the Harvard Law Review.  His essay concluded that the law is nothing more that what judges do (Oliver Wendell Holmes). The famous essay helped fuel the debate, which continues to this day, as to whether the judiciary take an only rule position or must the judiciary consider policy as well as the rules.

Some legal realists argue that the law is just a representation of the will of the societys most powerful. Thrasymachus articulated this view in Platos Republic. He stated that laws are made by the ruling party in its own interest (Plato, Republic).  Justice Holmes echoed these sentiments in Lochner v. New York, 198 U.S. 45 (1905) when he wrote the law must not be perverted to prevent the natural outcome of the dominant opinion.  The judiciary to a degree must take into account public opinion, or utilize the total inclusion concept.  It cannot interpret the law in a vacuum by solely relying on the letter of the law.  Imagine our current times with laws on the books that say African-Americans are 15 a person or women cannot vote and own land.  The masses would have no faith in the laws and eventually anarchy would arise. However, public policy cannot be controlled solely by the powerful either as Thraysmachus and Holmes confirm that it is.  By focusing on the policy of only the powerful, the result is the current discourse that is felt in the U.S.

Looking solely to the letter of the law is not all bad either.  One positive is that it provides consistency to the law.  It allows precedent to be set and provides the public with some guidance and expectation of how their actions and relationships will be treated.  It prevent citizens from be subjected to the whims of judges and whatever biases the judges may have.  Forcing judges to follow only the letter of the law gives the judiciary credibility and creates a trust in the masses. Most importantly, it provides a guidance that allows most citizens to live their daily lives in peace and comfort.

The reality is the judiciary in the U.S. cannot interpret law without accounting for public policy. The law would become out of sync with the public opinion cause lack of faith in the masses.  At the same time, the judiciary must balance the need to take public policy into account with the need to provide consistency and precedent.  Following the letter of the law provides such consistency and precedent.  The trick lies in finding a healthy balance between the only rule and total inclusion theories.