by Wouter de Been. Stanford, CA: Stanford University Press, 2008. 264pp. $60.00. Hardback. ISBN: 9780804756594.
Reviewed by Adam Shajnfeld (J.D., Columbia). Email adamshajnfeld [at] gmail.com.
Wouter de Been provides a thorough and sophisticated look at oft-neglected elements of legal realism and critical legal studies (“CLS,” the movement humorously referred to in the book’s title), details differences between the two movements (many of which often are obscured by short descriptions of them), and offers a compelling argument for the continuing vitality of certain components of legal realism. The author displays an impressive mastery not only of the movements themselves, but also of underlying concepts drawn from history, sociology, law and philosophy. LEGAL REALISM REGAINED is not for the novice, though: it includes references to numerous “isms” for which no adequate definitions are provided, and, despite a well-intentioned introduction, assumes (and requires) a general knowledge of jurisprudence and philosophy. Those lacking familiarity with these subjects are well advised to begin, at the very least, with Leiter (2005) and/or Tushnet (2005).
To introduce the two movements discussed in the book, generalization is necessary, though it sacrifices detail and heterogeneity within each movement for the sake of basic understanding. Crudely stated, legal realism is a movement characterized by the belief that abstract, foundational concepts, doctrines, and rules of law do not provide unique, determinate resolutions to most difficult cases, and that in deciding such cases, judges – consciously or not – take extra-legal considerations into account. CLS accepts these realist positions, but also believes that the extra-legal considerations are political in nature – rendering law into a tool of oppression and class domination – and that legal indeterminacy is so pervasive that rules of law do not provide unique, determinate resolutions to almost any case. CLS also exhibits a thoroughgoing skepticism of rationality, objectivity and knowledge. Both movements believe that many aspects of law are flawed and in need of reform. De Been’s book investigates the relationship between these two movements.
The book’s central premise is that, contrary to common belief, “Legal Realism and Critical Legal Studies are not continuous bodies of legal thought and that the attribution of Realistic antecedents to CLS ideas is in fact highly problematic” (p.13) This premise is tested through an examination of three foci, of importance, in some measure, to both movements: history, social science, and language.
(i) For realists, an understanding of history is important for its ability to explain a particular rule or legal institution as a reaction to a unique set of historical problems and circumstances that may no longer exist, rendering the particular law anachronistic. Thus, [*568] principles of law are not immutable, and reform may be necessary to allow law to address current problems and circumstances.
CLS agrees with realism that legal rules and institutions are historically contingent, and that historical understanding can serve a useful critical role, but, de Been explains, CLS thinks that realism has the relationship between law and history backwards. CLS believes that “the legal system and legal thought, by providing people with their basic conceptions and ideas about social and economic relations, help to create the very social and economic realities that the Realists thought were shaping law” (p.58). Of course, the reality may lie somewhere between these two extremes, with law, culture, and historical circumstances influencing each other, none so sterile as to exert no influence. De Been, also critical of this extremism, notes that CLS’s uni-directional view of law shaping society fails to explain how legal change comes about, if not from changes in the social fabric.
(ii) With an understanding that law is shaped and developed in light of its social and historical context, realists sought to import social science into legislation and adjudication, hoping that the social sciences could provide the critical, empirically oriented analysis that law needs in order to shed vestigial, obsolete components and better attain current goals – a decidedly instrumentalist view of law. The law and economics movement, exemplified by the work of Richard Posner, can be seen as one recent outgrowth of this realist project. Social scientific study might also provide better insight into the conditions actually affecting and guiding judicial decision-making.
CLS believes that by embracing social science, the realists merely replaced one value-laden, indeterminate, historically-contingent enterprise with another. For CLS, social science will not provide determinate answers to legal or social issues, and the titular reference to ‘science’ – conjuring an image of rationality and truth – masks its political nature. The social sciences, by brushing the status quo with a veneer of objectivity, serve only to illegitimately legitimize it. According to CLS, the realists should have taken the epistemological and metaphysical ramifications of their critique of legal doctrine more seriously, and extended it to the social sciences as well.
(iii) With respect to language, realists believe it to be “a socially constructed tool,” and that words are “merely handy symbols that referred to sets of facts” in a changing world. As such, words are also indeterminate and tied to historical context, and meaning changes over time. To realists, language can also constrain thought, insofar as thought is conducted through language. CLS scholars accept these realist beliefs but take them further, arguing that reality is not directly accessible, and can be reached only when mediated by language that strongly influences – if not determines – the way people perceive and understand that reality. Further, language does not mediate neutrally, but reflects and further entrenches the dominant political worldview. Thus, for CLS theorists, language is not a useful tool for the analysis of either law or social policy. One is struck, though, by the potentially self-defeating nature of this CLS [*569] critique, as the CLS view is also expressed, with apparent coherence, through language.
The author concludes by suggesting that elements of realism retain contemporary relevance and viability, and should not suffer the same fate as the CLS movement, which has deteriorated. De Been claims that realism (at least its viable elements, which he ties to pragmatism) is a partially “substantive” outlook. I would agree that it contains some substance, though in comparison to substantively-rich theories of law such as Dworkin’s, realism is best understood as a methodology. Realism is methodological in the sense that it does not provide a true goal or moral code, but rather only instructions on how to conduct adjudication once a goal is established. Its most important lesson, as the author reasonably indicates, is that in deciding cases, judges should be guided not only by doctrinal considerations, but by practical considerations informed by the social sciences, thus ensuring that law achieves its aims both in theory and practice. Put differently, realism counsels informed, empirically-oriented adjudication.
De Been also notes that realism “shows us that we can do without a firm ground, that we can do without such tattered foundational concepts as rationality, objectivity, and human nature and still keep faith in the project of understanding and improving law” (p.180). Realism, he claims, is still viable in the postmodernist world of epistemological relativity. Realism’s response to what it concedes to be a devastating critique of the concepts of objective knowledge and truth is to “simply accept that absolutes are not attainable and proceed with the concepts, standards, and values that are part of” a person’s “given existential setting,” even “if these are partial and limited,” as “they still suffice to produce scientific knowledge which is both reliable and valid for the circumstances at hand (and which is the only kind of knowledge situated and finite human beings can hope to generate, anyway)” (p.191). Both the author and the realists pay little additional attention to the matter, and it seems something of an afterthought. It is hard to fault the realists for this inattentiveness, as they generally were not philosophers, though they might have benefited from a more developed, explicit epistemological response. However, even in its skeletal form, the author correctly suggests that it is not essential for the realist’s instrumentalist project that objective knowledge be had; for the realist, a method of legal reasoning is successful not by virtue of its proximity to truth, but because of its utility. So long as the method leads adjudication to attain social goals more efficiently and expediently, it has succeeded.
This, however, is another indication of the paucity of substance in realism. A more substantive theory of law, offering not just a means to an end but a conception of what law’s end should be, would be more squarely faced with CLS’s epistemic critique. Perhaps, then, it is fitting that such a theory, and not the realists’, should bear the burden of a response.
Some other quibbles: first, I would have liked to see more actual or hypothetical cases cited as examples of particular realist and CLS positions, since, for some, it is difficult to imagine how they might manifest themselves in actuality. [*570] In the absence of such cases – and in stark contrast to the realist advice, commended by the author, of mooring doctrine to fact – it is not clear that these theoretical viewpoints bear any relation to potential adjudicative positions. Helpful examples the author does provide include the discussions of how the term “income” meant different things at different times, and the historical development of the principle of caveat emptor, as both demonstrate the importance of understanding law (and its language) in its own unique historical context. Second, de Been attempts to integrate elements of meme theory into the book – particularly by comparing outmoded doctrine with a certain type of meme – but neglects to describe generally what meme theory actually is. While meme theory is not a necessary part of his analysis, if choosing to include it, the author should more fully introduce it. Notwithstanding these quibbles, this work is a valuable and well-reasoned contribution to the jurisprudential literature for readers with the requisite background.
Leiter, Brian. 2005. “American Legal Realism.” In Martin P. Golding and William A. Edmonson (eds), THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY. Malden, Massachusetts: Blackwell Publishing Ltd., 2005.
Tushnet, Mark V. 2005. “Critical Legal Theory.” In Martin P. Golding and William A. Edmonson (eds), THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY. Malden, Massachusetts: Blackwell Publishing Ltd., 2005.
© Copyright 2008 by the author, Adam Shajnfeld.