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Legal realism

Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law is made by humans and thus should account for reasons besides legal rules that led to a legal decision.

There are two separate schools of legal realism: American legal realism and Scandinavian legal realism. American legal realism grew out of the writings of Oliver Wendell Holmes. At the start of Holmes's The Common Law, he claims that "he life of the law has not been logic: it has been experience". This view was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell. Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts."

For the American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as Jerome Frank, judges start with the facts before them and then move to legal principles. Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts.

It has become common today to identify Justice Oliver Wendell Holmes Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn, and Justice Benjamin Cardozo). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices.

The Scandinavian school of legal realism argued that law can be explained through the empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross, Axel Hägerström, and Karl Olivecrona. Scandinavian legal realists also took a naturalist approach to law.

Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies, feminist legal theory, critical race theory, sociology of law, and law and economics.