Re-Reading Legal Realism and Tracing a Genealogy of Balancing

Abstract

The enclosed article offers a new understanding of the history of American legal thought. I developed this interpretation over twenty years as I read into the early twentieth century literature in jurisprudence. The conventional view holds that the Progressive Movement (1905-1923) and the Realist Movement (1923-1941) combined forces to attack and ultimately undermine Classical Legal Thought (1870-1920’s). Any differences between the progressives and the realists are seen as minor as compared with their joint effort to undermine Classical Thought. After reading the original literature I came to realize this standard approach is seriously flawed and a source of endless confusion in contemporary legal thought. Legal Realism was primarily a critique of progressive thought. Although the realists continued to assail the formalism of Classical Thought, their work is interesting and important because of their attack on the progressives. This attack was linked to a cognitive relativism in legal realism that parallels the profound changes in science and the arts in the 1920’s and 30’s. For example, an article from 1927 in an American Bar Association journal makes the following point: “[T]he old cosmic absolutes – absolute space, absolute time, absolute matter, absolute natural law, absolute truth – are gone. The reign of relativity . . . is destined to work a corresponding revolution, deep, noiseless it may be, but inevitable, in all the views and institutions of man.” This article also traces the genealogy of balancing. With the collapse of Classical Legal Thought, balancing became the predominant method of legal reasoning. The progressives and the realists held radically different views of balancing but, unfortunately, both used the same terms and it requires careful reading to untangle this history. The article distinguishes a teleological view of balancing, dominant in the progressive era and still the prevailing approach, and an attack on teleological balancing which the article calls “conflicting considerations.” One of the confusions in contemporary thought is the failure to recognize these two types of balancing. Many lawyers, judges, and scholars see only teleological balancing and fail to recognize the importance of the realists’ contribution to policy analysis.