The reinvention of American legal realism

Abstract

While much has been written about American legal realism, the nature of its decline is comparably less carefully documented. Jurisprudential lore has it that ‘we are all realists now’. Although it is far from clear who ‘we’ might be, the statement is commonly taken to mean at least three things: that academic and practising lawyers alike have heard and heeded the message that law is not a certain system of rules; that legal doctrine is nowadays conceived in the context of the wider legal process; and that the legal process is nowadays understood to be part of the wider social system. The supposition, in essence, is that modern lawyers think like realists, even if they do not commonly consider themselves to be realists. While the weaker ideas and arguments developed by so-called realists have been discarded, the better ones have been absorbed into modern legal thought.