|legal theory: legal realism|
Origins of American Legal Thought: Introduction*
The agenda of twentieth-century American legal theory has been substantially determined by a small group of iconoclastic early-twentieth-century scholars now commonly known as the Legal Realists. The Realists developed several challenges to then conventional understandings of the nature and functions of legal doctrine. Most seriously, they called into question three related ideals cherished by most Americans: the notion that, in the United States, the people select the rules by which they are governed; the conviction that the institution of judicial review reinforces rather than undermines representative democracy; and the faith that ours is a government of laws, not of men.
Most of the major schools of American legal theory that have arisen since the Realists have attempted in some way to meet these challenges. The defensive strategies adopted by the various schools have been different. Some have responded to the Realists' contention that legal doctrine is insufficient to constrain judicial decisionmaking by urging the courts to interpret or modify doctrine in the light of a particular moral or economic theory. Others have sought refuge in theories of the legal process, contending that, if the courts would confine their attention to certain sorts of issues and resolve them in a certain spirit, their decisions would be predictable and justifiable. Still others have contended that, although much of contemporary law is illegitimate, legal doctrine in general and legal rights in particular could be refashioned into effective engines of social justice. None of these strategies has been wholly successful. The result is that contemporary American legal scholarship consists of an unstable melange of arguments drawn from disparate, contending theoretical traditions.