Legal Realism, Sociological Jurisprudence and Mr.

Justice Holmes
Author(s): Wilfrid E. Rumble, Jr.
Source: Journal of the History of Ideas, Vol. 26, No. 4 (Oct. - Dec., 1965), pp. 547-566
Published by: University of Pennsylvania Press
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 LEGAL REALISM, SOCIOLOGICAL JURISPRUDENCE
AND MR. JUSTICE HOLMES

BY WILFRID E. RUMBLE, JR.

Even now, the nature of Americanlegal realism1 is the subject

of widespreadand often intense disagreement.Its significancehas,
to be sure, seldom been denied. Most jurists would agree with the
evaluation of Mr. Justice Cardozothat "the most distinctive product
of the last decade [the 1920's] in the field of jurisprudenceis the
rise of a group of scholarsstyling themselves realists."2 Nonetheless,
the contoursof this "product"are still not universally agreed upon.
Even the legal realists were baffled.The confessionof one-"I do not
know what it [legal realism] means"-has been echoed by others.3
'There is no infallible method to determine who is a legal realist. The most
authoritativelist is probably that compiled by Karl Llewellyn in 1931, with the
assistanceof JeromeFrankand Felix S. Cohen.See Llewellyn,Jurisprudence:Realism
in Theory and Practice (Chicago, 1962), 74-76 [hereinafter cited as Llewellyn].
Most of the men on whose writingsmy interpretationof legal realismis based were
includedon that list. The two notableexceptionsare Felix S. Cohenand Fred Rodell.
Both are generallyclassifiedas legal realists. At the time that Llewellyn compiled
his list, however,neither had publishedanything of significance.There is no stand-
ard accountof legal realism,its nature, and its development.For the interpretations
of some of the figuresupon whom this study is based, see Llewellyn,3-76; Llewel-
lyn, The CommonLaw Tradition:DecidingAppeals (Boston, 1960), 11-18, 508-20
[hereinaftercited as The CommonLaw Tradition]; Frank, Law and the Modern
Mind (N. Y., 1949), vi-xxviii, 42-48; Frank, If Men Were Angels: Some Aspects
of Governmentin a Democracy (N.Y., 1942), 276-315 [hereinaftercited as If Men
Were Angels]; and Radin, Legal Realism, 31 Colum. L. Rev. (1931). For other
useful accounts, see McDougal, Fuller v. the AmericanLegal Realists: An Inter-
vention, 50 Yale L. J. (1941); Rostow, The SovereignPrerogative: The Supreme
Court and the Quest for Law (New Haven, 1962), 3-45; Patterson,Jurisprudence:
Men and Ideas of the Law (N. Y., 1953); Garlan,Legal Realismand Justice (N. Y.,
1941); Cahill, Judicial Legislation: A Study in American Legal Theory (N.Y.,
1952), 97-148; Paul, The Legal Realism of Jerome N. Frank: A Study of Fact-
Skepticismand the JudicialProcess (The Hague, 1959); Aronson,Some Tendencies
in AmericanJurisprudence,4 Toronto L. J. (1938); Pound, The Call for a Realist
Jurisprudence,44 Harv. L. Rev. (1931); Fuller, AmericanLegal Realism,82 U. Pa.
L. Rev. (1934); Selected Writingsof Benjamin Nathan Cardozo,ed. Hall (N.Y.,
1947); Gilmore,Legal Realism: Its Cause and Cure, 70 Yale L. J. (1961); and
Yntema, AmericanLegal Realism in Retrospect, 24 Vand. L. Rev. (1960).
2Selected Writingsof BenjaminNathan Cardozo,ed. Hall, (N.Y., 1947), 10.
8 Green, Innocent Misrepresentation,19 Va. L. Rev. 247 (1933). For similar

views, see Frank, Book Review, 54 Harv. L. Rev. 919 n. 18 (1941); Clark, The
Function of Law in a Democratic Society, 9 U. Chi. L. Rev. 395 (1942); and
Yntema, op. cit. supra, note 1 at 320.
547
548 WILFRID E. RUMBLE, JR.

It is no wonder,therefore,that a well-knownstudy of modernAmeri-

can jurisprudencehas concludedthat the term legal realism "defies
definition." In the mind of ProfessorFred Cahill, it is "less a des-
criptionthan a slogan and carriesemotional connotationsratherthan
precise meanings."6
Today, it is difficult to disagree with this last proposition. To
admit this is, however, to leave still unclarifiedthe nature of the
movement for which "legal realism" was chosen as the somewhat
polemical label. It is to this non-semanticproblem that the present
essay is directed. More specifically,my objective is to justify three
theses. The first is that the key to the solution of this problem is
knowledgeof the relationshipbetween legal realism and sociological
jurisprudenceas definedby the late Roscoe Pound at the turn of the
century. The second is that the root of most of the disagreement
which arosebetween Dean Pound and the legal realists is conflicting
interpretationsof the role of preestablishedlegal norms in the judi-
cial process. The third is that Mr. Justice Holmes symbolizes this
conflict. No man was more venerated by the legal realists than
Holmes, and one very importantreason was his attitude towardsthe
role of antecedent rules in the judicial process. But Pound also
claimed to be a devout disciple of Holmes. In fact, it was Pound's
contention that the legal realists had distorted the teachings of the
"Yankeefrom Olympus."It is a contention which is made possible
by the fact that, as I hope to demonstrate,the legacy of Holmes is
ambiguous.
As definedby Pound in the early years of this century,sociological
jurisprudenceconsisted primarily of two distinct kinds of claims.
One was methodological.The other was substantive. Each must be
examined.
Two methodologicalclaims were advanced.The first was that the
methods and concepts of the other social sciences ought to be used
in the study of law and legal institutions.6The second was that the
traditionalsubject-matterof legal study must be expanded.The case
method, with its focus on judicial opinions, is necessary; but it des-
perately needs to be supplementedby "a scientific apprehensionof
the relations of law to society and of the needs and interests and
7
opinions of the society of today."
4 Cahill,JudicialLegislation:A Study in AmericanLegal Theory (N.Y., 1952),
97. 5 bid.
6See Pound, Law in Books and Law in Action, 44 Am. L. Rev. 35-36 (1910),
and Pound, The Need of a SociologicalJurisprudence,19 GreenBag 611-12 (1907).
7 The Need of a SociologicalJurisprudence,19 Green Bag 611-12 (1907). Also,
see Pound, The Scope and Purpose of a SociologicalJurisprudence:III, 25 Harv.
L. Rev. 513-15 (1912).
 LEGAL REALISM AND JUSTICE HOLMES 549

The substantive claims were directed at traditional attitudes to-

wards legal rules. One was recognition of the limited extent to which
they have in fact determined judicial decisions. In 1910, Pound form-
ulated his views in this fashion:
In theory our judges are tied down rigidly by hard and fast rules.... Le-
gally, the judge's heart and conscience are eliminated. He is expected to
force the case into the four cornersof the pigeon hole the books have pro-
vided. In practice, flesh and blood will not bow to such a theory. The face
of the law may be saved by an elaborateritual, but men, and not rules, will
administerjustice.8
The other claim was that antecedent rules should be viewed teleo-
logically, as but means to the achievement of social ends. More
specifically, it involved what Pound called "equitable application of
law." As he once put it, the sociological jurists insist that "within
wide limits" the judge "should be free to deal with the individual
case, so as to meet the demands of justice between the parties and
accord with the general reason of ordinary men." 9
In any case, throughout his life Dean Pound insisted that socio-
logical jurisprudence as he had defined and defended it "begins with
Mr. Justice Holmes." 10 In 1938 he spelled out in detail the reasons
for that claim.
In the definite break with the method of the historical school, in the study
of methods of judicial thinking, and understandingof the scope and nature
of judicial logic: in recognitionof the relation between the law-findingele-
ment in judicial decision and the policies that must govern lawmaking: in
faith in the efficacyof effort to make the law more effective for its ends:
in giving up the idea of jurisprudenceas a self-sufficientscience: in a func-
tional point of view, in contrast with the purely anatomical or morpho-
logical standpoint of the last century-in each of these respects he fore-
shadowed,if he did not develop, the characteristicmethod and ideas of a
sociologicalscience of law.1l
Equally important was the impact of Pound's version of a so-
8 Law in Books and Law in Action, 44 Am. L. Rev. 20 (1910). For a more de-
tailed analysis by Pound of this point, see An Introductionto the Philosophy of
Law (New Haven, 1922), 100-143.
9 The Scope and Purpose of SociologicalJurisprudence:III, 25 Harv. L. Rev.
515 (1912). Also, see Pound, Liberty of Contract,18 Yale L. J. 464 (1909).
10"Sociologyof Law,"in TwentiethCenturySociology (Gurvitch& Moore, eds.,
New York, 1945), 30.
l Ibid. Also, see Pound, Liberty of Contract, 18 Yale L. J. 454 (1909), and
Pound, Justice Holmes's Contributionsto the Science of Law, 34 Harv. L. Rev.
450 (1921). For Holmes'sviews, see The Mind and Faith of Justice Holmes: His
Speeches, Essays, Letters and Judicial Opinions (Lerner ed., N. Y., 1943), 48-89
[hereinaftercited as Holmes], and Holmes, CollectedLegal Papers (N. Y., 1920),
210-43.
550 WILFRID E. RUMBLE, JR.

ciologicaljurisprudenceupon the legal realists.As ProfessorLlewellyn

once wrote, his work "is the basis of our forward-lookingthought of
the '20's and '30's and has providedhalf of the commonplaceequip-
ment on and with which our work since has builded."12 Accordingto
Dean Pound, the debt of the legal realists to their predecessorswas
even greater.For him, the "characteristicideas" and not simply the
bases of "realisticjurisprudence"were "anticipatedby the sociological
juristsof a generationago."13 At the same time, one of the distinctive
features of the juristic literature of the 20's and 30's is the thrust
and counter-thrustof criticismbetween Pound and the legal realists.
It is criticism which reflected deep-seated differences, differences
which must be examinedin detail in orderto disclose the distinctive
traits of legal realism. Only then can its unique status in the Ameri-
can jurisprudenceof this century be fully understood.
The first source of conflict was the charge that Pound had, in
general, failed to implement the sociologicalapproachto the study
of law for which he had made such an impassioned plea. As Karl
Llewellyn put it in the article which coined the label "realisticjuris-
prudence,"Pound's "buddings"were "brilliant"; but in the main
they have "not come to fruition."14 Thus, Llewellyn implored in
1930:
What wouldone not give for the actual appearanceof the long awaited
SociologicalJurisprudence,if its authorwould integrateit in terms of those
pioneeringthoughtsof his which thus far have been waiting to be called to-
getherin a ConstituentAssembly?15
Not surprisingly,it was the claim of the legal realists-indeed their
inspiration-to have succeededwhere Pound failed. As Herman Oli-
phant once wrote, their objective was that of "translatingHolmes's
legal philosophyand Dean Pound's elaborationof it into practice."16
The goal was to convert "'sociological jurisprudence'into a fact
rather than a mere inspiration."17
The means designed to achieve this goal are much too varied to
discussin detail here. Still, one of the most interestingand significant
can be brieflyexamined.It is the Institute of Law of the Johns Hop-
kins University.18Founded in 1928, the Institute collapsed in 1933
12Llewellyn,496.
13 Fifty Years of Jurisprudence:III, 51 Harv. L. Rev. 791 (1938).
14
Jurisprudence,7n. 3. 15Ibid., 8.
16Parallelsin the Developmentof Legal and MedicalEducation,167 Annals 162
(1933). 17Ibid.
For a brief history of the Institute, see French, A History of the University
18
Foundedby Johns Hopkins (Baltimore,1956), 243-48. The reactionwhichits estab-
lishment elicited was most enthusiastic.See New York Times, II (July 22, 1928),
 LEGAL REALISM AND JUSTICE HOLMES 551

because of lack of funds. In those five years, though, it was a micro-

cosm of legal realism in action. Not only was it staffed by such legal
realists as Herman Oliphant, Walter Wheeler Cook, and Hessel
Yntema; in addition, its objectives reflected the model of a socio-
logical approach to the study of law. Thus, the "fundamental pur-
pose of the Institute" was "to study as scientifically as may be law
in action." 19 "All else would be incidental." 20 Moreover, this goal
was to be achieved through "the application of methods similar to
those which scientists in other fields have so fruitfully used" and
which "will yield a rich harvest in the legal field." 21 Still further,
the focus of the Institute was to be on the social effects of law. As
Walter Wheeler Cook put it, in words which beautifully illustrate
the impact of pragmatism upon legal realism:
The only way to find out what anything does is to observeit in action and
not to read supposedlyauthoritativebooks about it, or to attempt by reason
to deduce it from fundamentalprinciples assumed to be fixed and given.
The consequenceof this assumptionis that only a small part of the work
of the Institute will be with books in libraries: by far the larger part will
be concernedwith the difficult,time-consumingand expensivetask of gath-
ering and interpretingthe facts concerningthe operationof our legal sys-
tem.22

Unfortunately, the Institute of Law expired before this task could

be fully or even largely completed. Moreover, the studies which it
produced did not reflect the truly sociological methods by which its
foundation had been justified.23 The cooperation of "students of

6; Johnson,How Does the Law Work? 59 World'sWork 63 (1930); Johnson,Why

it is the Law, 120 The Century (1930); Law as a Social Instrument,57 New Re-
public (1929);A Law Laboratory,128 The Nation (1929); and Kent, Johns Hop-
kins Grappleswith the Law, 97 Scribner'sMagazine (1930). The sentimentof Mr.
Justice Cardozowas typical. For him, the Institute of Law "marks . . a method
of approachmost significantand helpful. ... I hail the dawn of the new hope."
As cited by Marshall, The Institute of Law, Johns Hopkins University, 2 The
AmericanScholar 115 (1933).
19Cook, ScientificStudy and the Administrationof Justice 1929 Md. S. B. A.
Rep. 148.
20 Cook, ScientificMethod and the Law, 13 A. B. A. J. (1927).
21
Cook, op. cit., supra, note 19 at 148.
22Ibid., 153. For an excellentanalysisof the impact of pragmatismupon Holmes,
as well as others, see Philip P. Wiener,Evolution and the Foundersof Pragmatism
(Cambridge,1949), 172-89. Also, see Morton White, Social Thought in America:
The Revolt Against Formalism(Boston, 1957), esp. 59-75.
23 For a bibliographyof the studies producedby the Institute of Law, see Rum-
ble, The Foundationsof AmericanLegal Realism (UnpublishedPh. D. dissertation:
The Johns Hopkins University, 1961).
552 WILFRID E. RUMBLE, JR.

heredity, of psychology,of psychiatry,of sociology,and criminology"

which had been hoped for was not to any great degreeelicited. A sig-
nificant number of statistics about judicial administrationwere, to
be sure, accumulated.Still, a genuine sociological jurisprudenceas
definedby Pound and as urged by the legal realists was not created.
Finally, the other studies of the latter, while significant and even
pathbreaking,were not numerous enough to establish a sociological
jurisprudence,either.24Indeed, some of the legal realists admitted
as much. Felix Cohen was not alone in his admission that "'socio-
logical jurisprudence'remains in large part a pious programrather
than a recordof accomplishment."25
The plea for a sociological approach has had, of course, some
important practical results. Today, the courts are probably more
willing candidly to consider "sociological"evidence than they were
thirty or forty years ago. The DesegregationCases are but one illus-
tration.26For that, the legal realists are to some degree responsible.
Nevertheless, their grand hopes for a true "sociologyof law" have
not been realized.Whateverthe reasons27--and they are too complex

24 For
bibliographicaldata, see Rumble, Legal Realism and the Reduction of
Uncertainty,13 J. Pub. L. 70 n. 147 (1964).
25Book Review, 42 Yale L. J. 1150 (1933). For similar views, see Douglas,
Democracy and Finance (Allen ed., New Haven, 1940), 281, 285 and Selznick,
"Sociologyof Law," in Sociology Today: Problems and Prospects (Merton ed.,
N.Y., 1959), 115.
26See Brown v. Board of Education,347 U. S. 483 (1954), and Brown v. Board
of Education,349 U. S. 294 (1955). The approach advocatedby the legal realists
has also had a significantimpact in two other areas. The first is legal education.
Professor Currie has written that "the most significantdevelopmentin American
legal educationsince 1870 is the movementtowards reorganizationof coursesalong
functional lines and toward the broadeningof law school studies to include non-
legal materials,chieflyfrom the socialsciences,whichare relevantto legal problems."
Currie,The Materialsof Legal Study, 8 J. Legal Ed. I (1956). It is a development
for which the legal realists are partly responsible.Indeed, accordingto Professor
David Riesman,their "victory"is "nowtaken for grantedamongthe youngermen"
in the law schools."Law and Sociology:Recruitment,Training,and Colleagueship,"
in Law and Sociology:ExploratoryEssays, ed. Evan (Glencoe,1962), 33. The second
majorimpact of the approachof the legal realistshas been upon a movementwhich
has arisen in the last decade and which consists largely of political scientists. Its
purposeis to develop "theoretical"and "systematic"knowledgeof judicialbehavior
by means of which decisionscan be reliablypredicted.For a good discussionof the
relationshipsbetween this movement and legal realism,see Schubert,Judicial Atti-
tudes and Voting Behavior: the 1961 Term of the United States Supreme Court,
28 Law & Contemp. Prob. 100 (1963).
27For possible explanations,see the literature cited supra note 25, as well as
the articles listed below by Walter B. Kennedy, a professor of law at Fordham
in the 1930's and perhaps the most prolific critic of legal realism in that period:
 LEGAL REALISM AND JUSTICE HOLMES 553

to discuss in detail here-the brave new world of sociologicaljuris-

prudencewhich the legal realists so zealously advocated was at best
but partially realized.
The second major source of friction between Pound and the legal
realists was the latter's more positivistic conception of a value-free
science of law. As Karl Llewellyn put it in 1930, in words which re-
verberatedthrough the literature of the legal realists, "I argue . . .
for . . . the building of a 'pure' science of law, along the lines of
natural science." 28
Four elements in this natural science of law are of particularim-
portance. The first is the insistence that its subject-matter should
not be antecedent legal norms but the behavior of officials.29More
important,the major reason for this emphasis-which did not char-
acterize Pound's writings-was the "rule-skepticism"of the legal
realists. By this I mean the conviction that the traditionallegal rules
were not the decisive factors inducing most decisions. Herman Oli-
phant's celebratedpresidential addressto the Associationof Ameri-
can Law Schools in 1927 provides an excellent illustration of the
connection.30
According to Oliphant, the great defect in the traditional ap-
proach to the study of law is the fact that it has "focussed ... atten-
tion too largely on the vocal behavior of judges in deciding cases. A
study with more emphasison their nonvocal behavior-i.e. what the
judges actually do, when stimulated by the facts of the case before
them-is the approachindispensableto scientifically exploiting the
wealth of material in the cases."31 The importantpoint for us is the
reason he gave for this need to switch emphasis from vocal to non-
vocal behavior.It is the fact that preestablishedlegal norms are not
the decisive factors inducingmost decisions,and that therefore"facts
are the only stimuli capable of scientificstudy as a basis for predict-
tion. Prior rationalizations [i.e. legal norms] are rejected for this
purpose because the facts prevail when they diverge from the prior
rationalizations,and, for each rationalizationindicating one result,

The ScientificApproachin the Law, 70 U. S. L. Rev. (1936); Psychologismin the

Law, 29 Geo. L. J. (1940); FunctionalNonsenseand the TranscendentalApproach,
5 FordhamL. Rev. (1936); More FunctionalNonsense-A Reply to Felix S. Cohen,
6 FordhamL. Rev. (1937); and A Review of Legal Realism, 10 FordhamL. Rev.
(1940).
28 The Conditionsfor and the Aims and Methods of Legal Research,6 Am. L.

Sch. Rev. 670 (1930).

29See Keyser, On the Study of Legal Science, 38 Yale L. J. 416 (1929), and
Llewellyn,The Theory of Legal 'Science,'20 N.C.L. Rev. 6 (1941).
8oA Return to Stare Decisis, 6 Am. L. Sch. Rev. (1928). 1Ibid., 229.
554 WILFRID E. RUMBLE, JR.

a contradictoryone indicating the opposite result can usually be

found."32
The second element is the insistence that the objective of a real-
istic science of law should be the description,explanation, and pre-
diction of officialbehavior. As Joseph W. Bingham, one of the first
and most neglectedlegal realists, put it, the goal is the "unprejudiced
ascertainmentof the actual concretefacts of government (or of soci-
ety), their actual causesand consequences,and the accurateprediction
of possibilitiesand probabilitiesbased upon such knowledge."33More
specifically,"the scienceof law" shouldbe regardedas "that organized
examinationof all the data that affectsocial conductwhichwill enable
us to predict what evaluation in the sense of 'ought'or 'may' a judge
will make of some conduct."34
The next two elementsin the scienceof law which the legal realists
desired to create are more provocative. If they had simply as-
serted the need to develop an objective body of knowledge on the
basis of which official behavior can be explained or predicted, they
would not have evoked the fierce controversywhich raged in Ameri-
can jurisprudencein the late '20's and '30's. They went on, however,
to advance two other propositions.Both were to induce the wrath of
their critics, including Dean Pound.
The first is the need for the definitionnot simply of the objective
of a scienceof law, but of law itself, as a predictionof officialbehavior.
No theme radiatedmorebrightly throughthe vast literatureproduced
by the legal realists. The sentiment of Max Radin that "law is--
cannot imagine it otherwise-a reasonablepredictionof what a judge
will say" was widespread.35Moreover,the inspiration for this point
of view came from Mr. Justice Holmes. As long ago as 1897 he had
insisted that "the propheciesof what the courts will do in fact, and
82Ibid., 226 n. 5. The parallel between this emphasison behavior and that of
John B. Watson,founderof behaviorismin America,is striking.It shouldbe pointed
out, though, that Oliphant's"behaviorism"is even more radicalthan that of Wat-
son. Thus, the latter was carefulto point out that the behaviorwhich the scientific
psychologistshould focus upon consists of "what the organismsays or does." He
did not deny, that is, that "sayingis doing-that is, behaving."Behaviorism(Chi-
cago, 1957), 6.
33Law Schools and the Future, 6 J. Legal Ed. 497 (1954).
84Radin, in My Philosophyof Law: Credosof Sixteen AmericanScholars (Bos-
ton, 1941), 293.
35Radin, Book Review, 17 Calif. L. Rev. 75 (1928) (emphasis added). For
similarviews,see Douglas,Democracyand Finance (Allened., 1940), 280; Cook,The
Logical and Legal Basis of the Conflictof Laws, 33 Yale L. J. 476 (1924); Corbin
ConditionalRights and the Functionsof an Arbiter, 173 L. Q. Rev. 28 (1928); and
Bingham,What is the Law? 11 Mich. L. Rev. 22 (1912).
 LEGAL REALISM AND JUSTICE HOLMES 555

8
nothing more pretentious, are what I mean by the law." Indeed,
this definitionof law is one major reason why Holmes can genuinely
be regardedas the patron saint of American legal realism, why he
was praised as "a true scientist,"37 and why it was claimed that his
"great conception of rational legal science as the basis of law still
holds the burdensof our hopes. It commandsthe future, a valid but
imperfectly realizedideal."38
I have arguedelsewherethat the definitionof law as a prediction
involves a confusionbetween scientific and legal rules.39The former
can be viewed as predictions; but the latter are norms which either
prescribehow courts, other agencies of government, and individual
citizens ought to behave, or authorize individuals or institutions to
reach certain kinds of decisions.Of equal importanceis the question
why the legal realists so enthusiasticallyadopted the predictive the-
ory. No simple explanationis possible. It is my conviction,however,
that the most influential factor is what I have called their "rule-
skepticism."The reasonfor this is that their "distrust"of "traditional
prescriptive rule-formulations"as "the heavily operative factor in
producing court decisions"40 meant that in their minds such rules
cannot function as a reliable basis for the prediction of future de-
cisions. The slip between the cup of traditional theory and the lip
of actual practice is too large. In consequence,it was assumed that
the best means to facilitate prediction-which was the true objective
of the science of law-was the redefinitionof legal rules as predictive
hypotheses.As Karl Llewellynonce admitted,the reasonfor the "con-
stant emphasis"of the legal realists on "rulesas 'generalizedpredic-
tions of what courts will do' "is their "distrustof traditional legal
rules and concepts insofar as they purport to describe what either
courts or people are actually doing."41 It is a distrust which was far
more radical than Pound's, as I shall presently point out. Moreover,
Pound's more conservative attitude toward legal rules is one reason
why he never defined law as a prediction.
The second of the two most provocativepostulates in the science
of law which the legal realists desired to create was that of ethical

36 Holmes,74. For a significantaccountof the originsof this definition,see Howe,

Justice Oliver WendellHolmes: The Proving Years, 1870-1886 (Cambridge,1963),
II, 75.
37 Cook, Oliver WendellHolmes: Scientist, 21 A. B. A. J. (1935).
88
Yntema, Mr. Justice Holmes' View of Legal Science,40 Yale L. J. 703 (1931).
89 Op. cit. supra, note 24 at 73-75.
40
Llewellyn56. This "distrust"was listed by Llewellynas one of the five "char-
acteristicmarks"of the realist movement.Ibid., 57. 41 Ibid., 56.
556 WILFRID E. RUMBLE, JR.

neutrality. The assumption that the "proper job" of the legal scien-
tist is "to identify rather than to evaluate the social consequences of
particular legal measures and devices" 42 was common. As such, the
genuine legal scientist was indifferent to the uses which were made
of the theories by which he explained and identified consequences.
Typical was the admission of Karl Llewellyn: "I accept to date, the
scientist's position that it is no business of his what use any theory
or suggestion may be put to." 48 "Science does not teach us where to
go. It never will." 44
The major reason for this insistence was the assumption that
value-judgments are subjective and therefore un- or extra-scientific.
As Llewellyn put it,
As we move into these value-judgmentswe desert entirely the solid sphere
of objective observation,of possible agreementamong all normal, trained
observers,and enter the airy sphere of individual ideals and subjectivity.45
This argument, moreover, was not merely widely distributed in the
literature of the legal realists; 46 it also corresponded with a strain
in the thought of Mr. Justice Holmes. It is a strain, though, which
had little impact on Dean Pound. In any case, for Holmes
Reason workingon experiencedoes tell us, no doubt, that if our wish to live
continues,we can do it only on those terms. But that seems to me to be
the whole of the matter. I see no a priori duty to live with others and in
that way, but simply a statement of what I must do if I wish to remain
alive.47
It is statements such as this, of course, which in the last thirty
years have provided grist for the mill of the natural law critics of
Holmes.48Not surprisingly, their ire has also been directed at the legal
realists, who in this, as in other respects, followed in the footsteps of
Holmes.49Pound, however, trod a somewhat different path. As a mat-
42
Oliphant,Facts, Opinions,and Value-Judgments,10 Texas L. Rev. 137 (1932).
in
43 "Introduction," Hall, Theft, Law, and Society (Boston, 1935), xxviii n. 4.
44Llewellyn, "Legal Tradition and Social Science Method," in Essays on Re-
search in the Social Sciences (Washington,1931), 101. 45 bid., 100.
46 For two good examples,see Moore, Rational Basis of Legal Institutions, 23
Colum.L. Rev. 612 (1923), and Bingham,op. cit. supra, note 35 at 2-3.
47 Holmes, 90.
For a typical example,see Palmer,Hobbes,Holmes,and Hitler, 31 A. B. A. J.
48
(1945). For defensesof Holmes against such criticisms,see Biddle, Justice Holmes,
Natural Law, and the SupremeCourt (N.Y., 1961); and Howe, The Positivism of
Mr. Justice Holmes, 44 Harv. L. Rev. (1951).
49The most celebratedexamplesare Lucey, Natural Law and AmericanLegal
Realism: Their Respective Contributionsto a Theory of Law in a Democratic
Society, 30 Geo. L. J. (1942), and Fuller, The Law in Quest of Itself (Chicago,
1940). For more sympathetic analyses, see McDougal, op. cit. supra. note 1, and
 LEGAL REALISM AND JUSTICE HOLMES 557

ter of fact, the criticisms which Pound has advanced against the moral
subjectivism of the legal realists sound very much like those which
proponents of natural law have levelled against Holmes. Pound's
statement that the legal realists "are now putting the whole stress
on force," a doctrine which is "wonderfully satisfying for dictators
... and . . for bureaucrats," is but one of many which could be
cited.50
In any case, Dean Pound reacted strongly against the conception
of a value-free science of law. In his mind,
The conceptionof every branchof organizedknowledgeas a science, where
it has been thought of as a philosophy . . . did nothing less than eliminate
from the social sciencestheir real fundamentalproblem.For if the physical
sciences have for their functionto discoverwhat is, the social scienceshave
for theirs to discoverwhat ought to be and how to bringit about.... What-
ought-to-be has no place in physical science. It has first place in the social
sciences.51
It would not do, however, to conclude this section without point-
ing out the various qualifications which the legal realists appended
to their model of a value-free science of law. The great problem which
has always confronted students of their movement is its vast diversity
and, to a degree, its inconsistency. These characteristics are nowhere
better illustrated than in the modifications which they attached to
their positivistic conception of legal science.
The range of these modifications is vast. One was the argument
that such a science was simply what was most needed at the moment,
that is, in the late '20's and '30's; and "when the task [of observation
and description] is well under way, there will be other seasons and
other specialists more appropriate for doing the task of evaluation." 52
Another-which is in fact an inconsistency-is the admission that
knowledge of the ends which law ought to be a means for the realiza-
tion of is possible.53 A third is the denial of the sharpness of the dis-

Rumble, "The Paradox of Legal Realism," Ethics: An International Journal of

Legal, Political, and Social Philosophy (1965).
50The Future of Law, 47 Yale L. J. 13 (1937), and What is Law? 47 W. Va. L.
Rev. 4 (1940). Also, see Pound, ContemporaryJuristic Theory (Claremont,1940).
51ContemporaryJuristic Theory (Claremont,1940), 36.
52Oliphant,op. cit. supra, note 42 at 137. For similarviews, see Yntema, The
Purview of Researchin the Administrationof Justice, 16 Iowa L. Rev. 348 (1931),
and Yntema, The RationalBasis of Legal Science,31 Colum.L. Rev. 952 (1931).
53See Cook, in My Philosophy of Law: Credos of Sixteen AmericanScholars
(Boston, 1941), 59-60; Cohen,Ethical Systems and Legal Ideals: An Essay on the
Foundations of Legal Criticism (Ithaca, 1933), 18 [hereinafter cited as Ethical
Systems]; Llewellyn,op. cit. supra, note 29 at 23 n. 27 (1941); and Radin, Inter-
national Crimes,32 Iowa L. Rev. 37 (1946).
558 WILFRID E. RUMBLE, JR.

tinction between fact and value.54 Still a fourth is recognition that

questions of what ought to be are as vital as questions of what has
been, is, or will be. Indeed, in 1940 Karl Llewellyn, in a summary of
the achievements of the legal realists in the 1930's, complimented
Dean Pound for his insistence on this.
For to Pound the heart and core of jurisprudenceis what the heart and core
of jurisprudenceought to be to any scholar; to wit, right guidance to the
judge-or to the legislator-or to the administrator.And I for one am ready
to do open penance for any part I may have played in giving occasion for
the feeling that modern jurisprudesor any of them has ever lost sight
of this . . . it is certainly in large part the result of Pounds' indefatigable
reaffirmanceof the basic truth about the heart and core of jurisprudence
that the other modernsare taking pains these days to make sure that they
get and keep these interests of theirs from being overlooked or miscon-
ceived.55
A final modification is some awareness of the inadequacy of the pre-
dictive theory.56 Unfortunately, it was not nearly as widespread as
the others.
These qualifications mean, of course, that the contrast between
Dean Pound's conception of a science of law and that of the legal
realists is not in fact as sharp as it often appears to be. There are
indeed differences, differences which account for some of the dis-
tinctiveness of legal realism as a movement in American jurispru-
dence. In particular, this is true of the definition of law in terms of pre-
dictions of behavior and the postulate of a value-free science of law.
Nonetheless, this last view, especially, was not consistently advocated.
The reason for this inconsistency is, moreover, of great importance.
It is, I believe, the tension between the enthusiasm of the legal re-
alists for the reform of law, on the one hand, and for the scientific
study of law, on the other hand. To demonstrate this, a brief review
of Pound's views is necessary.
No one can deny that this same enthusiasm for science as the
catalyst of reform is also present in his work. As a matter of fact, per-
haps the major explanation of his desire for a "sociological" juris-
prudence was that he saw in it a means to improve the positive law
as well as a means to improve the study of the law. Indeed, at times
he assumed in the most naive fashion that the chief impediment to
"good" legislation and judicial decisions was ignorance of the effects
of law, ignorance which would be solved by a sociological approach.

4 See Cohen,Ethical Systems, 115-16.

65Llewellyn 152-53.
6 See Llewellyn,The BrambleBush: On our Law and Its Study (N.Y., 1951),
9, 14, and Llewellyn,56.
 LEGALREALISM AND JUSTICE HOLMES 559

Thus, he once argued that

the jurist'sconvictionof the self-sufficiency
of jurisprudence
was unfortu-
nate.It was chargeablein largepartwiththe backwardness of law in meet-
ing social ends, the tardinessof lawyersin admittingor even perceiving
suchends,andthe gulf betweenlegalthoughtandpopularthoughton mat-
tersof socialreform.57
I regardthis assumptionas naive for two reasons.To begin with,
it seems to me clear that the laissez-faire conservatismwhich was so
influential in American legal thought from the 1880's through the
late 1930's was not due to ignoranceof the effects of law. Can it not
much more adequatelybe explained as a consciousmeans to achieve
a particular set of results, in this case the preservationof existing
propertyrelationships?Furthermore,it also seems to me clear that a
sociologicalapproachto the study of law can be used for conservative
as well as for liberal purposes. One merit of the controversywhich
has arisenover the DesegregationCasesis to make this clear. As Pro-
fessor Edmond Cahn has pointed out, "shrewd,resourcefullawyers
can put a Brandeis brief together in support of almost any conceiv-
able exercise of legislative judgment."58
The legal realists were not, of course, as naive in this respect as
Pound. Nonetheless, they felt almost as strongly as he did the neces-
sity to reform the positive law. Their involvement in and support
of the New Deal is but one example.59 Moreover, they also felt al-
most as strongly the utility of a sociologicaljurisprudenceto achieve
57
Op. cit. supra, note 10 at 334.
58 "A in the School
DangerousMyth SegregationCases,"in Auerbach,Garrison,
Hurst, & Mermin,The Legal Process: An Introductionto Decision-Makingby Judi-
cial, Legislative,Executive,and AdministrativeAgencies (San Francisco,1961), 115.
59At least four legal realists held important appointive positions in the New
Deal. They are William 0. Douglas, Jerome N. Frank, Thurman W. Arnold, and
Herman Oliphant.The role of the first two is discussedbriefly infra, note 91. Ar-
nold was an Assistant Attorney General in charge of the Anti-Trust Division of
the Departmentof Justice from 1938 until 1943. Oliphantwas GeneralCounselfor
the Departmentof Treasuryfrom 1934 until his death in 1939. Three legal realists
were enthusiasticadvocates of President Roosevelt'scontroversial"Court packing"
plan. See Arnold,81 Cong.Rec. 1157 (1937); Green, Unpackingthe Court,80 New
Republic67 (1937); and Llewellyn,A United Front on the Court, 144 Nation 289
(1937). For further analysis of the relationshipbetweenlegal realismand the New
Deal, see Frank, ExperimentalJurisprudenceand the New Deal, 78 Cong. Rec.
12412 (1934); Schlesinger,The Age of Roosevelt: The Coming of the New Deal
(Boston, 1959), 40-86; and Hofstadter, The Age of Reform: From Bryan to
F. D. R. (N.Y., 1956), esp. 315-26. The militant liberalismof most of the legal
realists was no doubt an additional reason for the polemics which arose between
them and Pound. The latter was politicallymore conservativethan the formerand,
even in his early days in Nebraska,was a rather active Republican.See Sayre, The
Life of Roscoe Pound (Iowa City, 1948), 96-109.
560 WILFRID E. RUMBLE, JR.

this objective, and for this reason were unwilling to advocate con-
sistently a value-free science of law which could be used for either
liberal or conservativepurposes.
The third and most fundamentalsourceof conflict between Dean
Pound and the legal realists was the realists' view of the role of pre-
established legal norms in the judicial process. It was Pound, of
course,who began the war against "mechanicaljurisprudence"which
has been such a conspicuousfeature of the Americanlegal thought
of this century.It was a war, however,which the legal realists prose-
cuted even more vigorously and on a wider front.
The validity of this point is perhaps best demonstrated by a
brief examinationof the five most important elements in their view
of the judicial process.The first was the insistence that in any case
which was doubtful enough to be litigated a court must choose be-
tween competingpremises,each or all of which can be used to justify
conflictingdecisions.60Moreover,it was felt that this hypothesis was
the true message to be derivedfrom Holmes's analysis of the judicial
process. No words uttered by the latter were more frequently cited
than his reminderthat "the judges are called on to exercise the sov-
ereign prerogativeof choice."61
The second note sounded by the legal realists is the consequence
of the first. It is the conviction that not antecedent legal norms but
extra-legal factors have been the decisive forces inducing most de-
cisions.62Again, Mr. Justice Holmes was cited in support.One among
the many statements which could be adduced was his famous pro-
nouncementthat
in substancethe growthof the law is legislative.Andthis in a deepersense
thanthatwhatthe courtsdeclareto havealwaysbeenthe law is in fact new.
It is legislative in its grounds.The very considerationswhich judges most
rarely mention,and always with an apology, are the secret root from which
the law drawsall the juices of life. I mean, of course,considerationsof what
is expedient for the community concerned.63
The third thrust in the analysis of the legal realists was the
claim that stare decisis has been an ineffectivemeans to achieve uni-
formity of decisions.As a result, "the particularkind of certainty that
men have thus far thought to find in law is in good measure an illu-
sion."64 The reasonfor this is the fact that the range of choice avail-
60Llewellyn58. For a more detailed discussionof the legal realists' analysis of
the judicialprocess,see my unpublishedmonograph,Stare Decisis and the Judicial
Process: In Defense of Legal Realism (1964).
61 CollectedLegal Papers (1920), 239.
62See Cohen,Ethical Systems, 35 n. 47, and Llewellyn,Jurisprudence,61.
s6Holmes, 54. Cf. ibid., 80-82, 51-52. 64Llewellyn,61.
 LEGAL REALISM AND JUSTICE HOLMES 561

able in the interpretationof antecedentnorms is so great that judges

can adhere to the precedents and still be faced with a variety of
competing decisions. Once more, the majestic authority of Holmes
was appealed to. None of his utterances was more frequently cited
than his classic statement that while
the logicalmethodand formflatterthat longingfor certaintyand for re-
pose which is in every human mind [still] . . . certainty generally is an
illusion,and reposeis not the destinyof man.Behindthe logicalformlies
a judgmentas to the relativeworthand importanceof competinglegis-
lative grounds,often an inarticulateand unconsciousjudgment,and yet
the very root and nerveof the wholeproceeding. You can give any con-
clusiona logicalform.65
At this point, it is useful to emphasizeagain the contrastbetween
the views of Pound and those of the legal realists.The formerdid not,
to be sure, take a traditional attitude towards the role which ante-
cedent legal rules play in the judicial process.Still, he did claim that
the insistence of the commonlaw "uponits doctrinesof stare decisis
chiefly in the two cases of property and commerciallaw" was salu-
tary, as a means to preservelegal certainty.66Accordingto the legal
realists, though, "adherenceto precedents"had universally been an
ineffective means to achieve uniformity of decisions.67
In any event, it was the next two themes in the legal realists'
analysis of the judicial processwhich were to arousemost of Pound's
wrath. The first is a tendency to emphasize the significanceof un-
conscious factors. The views of Judge Jerome Frank, while some-
what extreme,were still not unrepresentative.For him, the key which
unlocks the mysteries of judicial decision-makingis awarenessof the
importance of the "multitudinous,""complicated,"and "hidden"
factors which are "distinctively individual, unconscious,un-get-at-
able," "concealed, publicly unscrutinized, uncommunicated ... secret,
unconscious,private, idiosyncratic."68 The second theme was that
the traditional judicial opinion is a "rationalization"which distorts
the "real"reasonsfor decisions.As Felix S. Cohenonce wrote,
Realisticjurisprudence has sprungin greatmeasurefromthe recognition
that principlesenunciatedby courts as groundsfor decisionsrepresent
nothingmoreobjectivethan a resolutionto use sanctifiedwordswherever
specifiedresultsare dictatedby undiscloseddeterminants.69
65
Op. cit. supra, note 63 at 80.
66Pound, An Introductionto the Philosophyof Law (1922), 140.
67 See Llewellyn, 61.
68Moral Responsibilityin Legal Criticism,26 N. Y. U. L. Rev. 573 (1951).
69Op. cit. supra, note 62 at 237.
562 WILFRID E. RUMBLE, JR.

This last contrast between "stated" and "real" reasons for de-
cisions was not, of course,unique to the legal realists. It was, in fact,
in line with some of the strongest currents of thought among the
avant-garde of the 1920's and 1930's. Psychoanalysis and Marxism
are but two examples. Nevertheless, the view that judicial opinions
are "unconvincingrationalizationsfor decisions" came as a violent
shock to the world of traditional jurisprudence.No one was more
disturbedthan Pound. In his mind, the "self-styled realists of today"
assume that "psychologyhas overthrownthe whole science of juris-
prudence";70 contend that "reason"and "the existence of rules of
law" are an "illusion"; 71 identify "brutality and actuality"; 72 and
regardthe "attempt to hold down the individual judge to prescribed
paths of action" as "futile."7 For these reasons, he concluded,the
"term 'realism'is a mere boast." Its advocateshave "exaggeratedthe
effectsof the alogicaland irrationalfeaturesof the judicialprocess."74
Precisely for this reason, as a matter of fact, Pound argued that
the legal realistshad distortedthe teachingsof Holmes. For him,
Too much has been claimed ... for [Holmes] as a skeptical realist...
He did not seek an easy retreatfromthe hardworkof the judicialprocess
by way of a theoryof the psychologicallyinevitablejudicialimpotenceto
reachan impersonalresult.He did not regardlaw or legal techniquesas
masksto coverindividualitemsof judicialbehavioreachon its own basis
of individualpsychologyor prejudiceor unguidedintuition.7
At the same time, the legal realists counterattackedwith the charge
that it was Pound who had distortedthe teachings of Holmes. Some-
what extreme but not uncommonis the claim of Judge Frank that
Pound "repressed"the "Holmes idea," "obstructedits full growth,"
"dilutedit, mingled it with the watery substance of Holmes's prede-
cessors... he mangledhis workbecausehe compromisedthe heritage
from Holmes, because he refused to recognizeits essentially revolu-
tionary character."76 For this reason, Frank contended,"it was thus
in the highest degree unfortunate that the first vastly influential
teacher to take over Holmes's insight should have warped it." 77He
concludedthat "Pound'slasting contributions"must be rescuedfrom
"Pound and his uncritical adulators."78
From the perspective of the present, neither of these interpreta-
tions seems correct. On the one hand, in three respects Holmes's
analysis of the role of antecedentnormsin the judicialprocesscan be
legitimately claimed as the forerunnerof that of the legal realists.
One is his emphasis on the role of unconsciousfactors. Thus, for
70Op. cit. supra, note 13 at 786.
71 The Call for a Realistic Jurisprudence,44 Harv. L. Rev. 698 (1931).
72
Op. cit. supra, note 51 at 38. 73Ibid.
74Op. cit. supra, note 13 at 800. 75 Ibid., 792.
76Are Judges Human? 80 U. Pa. L. Rev. 18 (1931). 77Ibid. 78 Ibid.
 LEGAL REALISM AND JUSTICE HOLMES 563

Holmes the "decisionwill depend"not on deductions from "general

propositions,"but on "unconscious,""instinctive,"and "inarticulate"
"preferencesand convictions," on a "judgment or intuition more
subtle than any articulate major premise,"even on "the prejudices
which judges share with their fellow men."79 Another is Holmes's
emphasison the significanceof extra-legal factors,on "considerations
of what is expedient for the community concerned."80 The third is
his profound skepticism about general rules as a means to compel
particulardecisions.After all, it was Holmes who asserted not only
that "general propositions do not determine concrete decisions";s8
but, in addition,that "no case can be settled by generalpropositions,
that I will admit any generalpropositionyou like and decide the case
either way."82 Finally, in each of these respects, Pound-especially
after his early, epochal articles-was more conservative than either
Holmes or the legal realists.
At the same time, in other ways the latter took a more radical
view than Holmes. Thus, I can find no statements of his which sup-
port the view that stare decisis was necessarilyan ineffective means
to achieve uniformityof decisions.Moreover,I can find no utterances
of his which support the view that traditional judicial opinions are
mere rationalizationswhich distort the "real"reasons for decisions.
It can be argued,to be sure, that these two doctrines are logical in-
ferencesfrom Holmes's analysis of the role of antecedent legal rules.
Nonetheless,they were inferenceswhich Holmes himself did not draw.
One reason for this is the fact that he did not contend that "in
any case doubtful enough to make litigation respectablethe authori-
tative premises . . . are at least two, and . . . the two are mutually
contradictoryas applied to the case at hand."83 Holmes did contend,
of course, that in any doubtful case this situation existed. Still, un-
like the legal realists, he did not hold that every case which was liti-
gated was doubtful. The best illustration of this is the famous para-
graph in which he asserted that "judges are called upon to exercise
the sovereign prerogativeof choice."84 An examination of the con-
text in which those words were uttered discloses that what Holmes
did maintain was that judges must exercise their sovereign preroga-
tive of choice "whenevera doubtful case arises."85 But he was careful
to point out that not every case is doubtful. As he put it, the judicial
duty may be "narrower,because one or the other desire may have
been expressedin previous decisions to such an extent that logic re-

79Holmes, 52, 54, and Lochnerv. New York, 198 U. S. 45, 74 (1905).
80Holmes, 54. 81 Lochnerv. New York, 198 U. S. 45, 74 (1905).
82Holmes-LaskiLetters: The Correspondence of Mr. JusticeHolmesand Harold
J. Laski, 1916-1935, (Howe ed., Cambridge,1953), 243.
84 Op. cit. supra, note 61 at 239. 85 Ibid.
83Llewellyn,58.
564 WILFRID E. RUMBLE, JR.

quires us to assume it to preponderatein the one before us. But if

that be clearly so, the case is not a doubtful one."86
As this indicates, the question whether the legal realists or Dean
Pound interpretedHolmesmore accuratelyis complicated.One reason
for this is the ambiguityof the legacy of Holmes. Its ambiguouschar-
acter is also attested to by the final source of friction between Dean
Pound and the legal realists. It is conflictingevaluations of the role
which antecedentlegal rules ought to play in the judicial process.
The view of Dean Pound was that in cases which involve "the
weighing of human conduct and passing upon its moral aspects"the
norm for a court ought to be "equitable application of law."87 In
cases of propertyand commerciallaw, though, he felt that antecedent
legal rules can and ought to be the decisive factor inducing judicial
decisions.Here, the traditionallodestar of stare decisis is an effective
and desirablemeans to achieve uniformityof decisions.
For the legal realists, though, stare decisis was universally an in-
effective and thereforeundesirablemeans to achieve legal certainty.
Consequently,they urgedjudges
to openthe doorto that otherandfar moreusefuljudicialprocedure:con-
scious seeking, within the limits laid down by precedent and statute, for
the wise decision.Decisionsthusreached,withinthoselimits,may fairlybe
hopedto be morecertainlypredictablethan decisionsare now-for today
no man can tell whenthe courtwill, and whenit will not, thus seek the
wise decision,but hidethe seekingunderwords.Andnot onlymorecertain,
but whatis no wit less important:morejust andwise (or morefrequently
just and wise).88
The contrast between such views and those of Pound is marked.
For the latter, to urge judges to seek consciouslyfor the just or fair
decision is undesirableas a universal norm, because it would make
law more uncertain. As he once wrote, "the proposition[s] that a
judicial decisionis only evidence of the law, the doctrinethat judges
always find the law and never make it" may be "dogmaticfictions."89
Nonetheless, he contended,they
growout of a soundinstinctof judgesandlawyersfor maintaininga para-
mountsocial interest.They serve to safeguardthe social interestin the
generalsecurity.... They serveto makejudicialactionpredictableso far
as may be. They serveto holddownthe personalityof the judge.90
This argument is important because it indicates the extent to
which Pound was influencedby the tradition against which he was
in other respects revolting. His justification of stare decisis and his
86Ibid. 87
Op. cit. supra, note 66 at 139. 88 Llewellyn,70.
89Law and Morals (Chapel Hill, 1926), 49. 90 Ibid.
 LEGAL REALISM AND JUSTICE HOLMES 565

opposition to conscious seeking for the wise decision is the same as

that traditionally given, namely, as a means to achieve legal certainty.
His work demonstrates, in other words, a fear of the discretionary
element in the judicial process which has always been the major rea-
son for the mandate of stare decisis.91As he once wrote,
If we must choose, if judicial administrationof justice must of necessity be
wholly mechanicalor else wholly administrative,it was a sound instinct of
lawyers . . . that led them to prefer the former.Only a saint, such as Louis
IX under the oak at Vincennes,may be trusted with the wide powers of a
judge restrainedonly by a desire for just results in each case to be reached
by taking the law for a general guide.92
This fear was not, however, shared by the legal realists. Their point of
view was well expressed by Judge Jerome Frank when he wrote that
no one knows better than Pound that the refusal to admit the reality of
judicial legislation does not improve the process. The "no judge-madelaw
myth" does not serve to "make judicial action predictable so far as may
be." It serves only to make it seem more predictablethan it can be-and,
indeed, less predictablethan it could be if it were not conductedin the in-
tellectual semi-darknesscreated by that myth.93
Unfortunately, it is again impossible to assert unequivocally which
view is more in accord with that of Holmes. On the one hand, some of
his statements suggest a posture very similar to that of the legal
realists. Thus, in 1881 he asserted that
the philosophicalhabit of the day, the frequencyof legislation and the ease
with which the law may be changedto meet the opinions and wishes of the
public, all make it natural and unavoidablethat judges as well as others
should openly discuss the legislative principlesupon which their decisions
must always rest in the end, and should base their judgmentsupon broad
considerationsof policy to which the traditions of the bench would hardly
have tolerated a referencefifty years ago.94
On the other hand, in other places Holmes took a position more in
91This fear of the arbitrarywas also the major stated reasonfor Pound'scritical
attitude towardsadministrativeagencies.See op. cit. supra, note 51, and Pound, For
the Minority Report, 27 A.B.A.J. (1941). As might be expected, his views in this
respect also were criticizedby the legal realists. See Llewellyn, Book Review, 26
A.B.A.J. (1940), and Frank, If Men Were Angels, esp. 332-351. The latter was
dedicatedto "Mr. Justice WilliamO. Douglas who, while Chairmanof the Securities
and ExchangeCommission,superlativelydemonstratedthat effectiveadministration
can be made an importantinstrumentof true democracy."Douglasserved as Chair-
man of the SEC from September1937, until April 1939, when he was appointedto
the SupremeCourt of the United States. He was succeededas Chairmanby Frank,
who had been appointedto the SEC in 1937 and who servedas Chairmanuntil 1941,
when he was appointeda memberof the Second Circuit Court of Appeals.
92Op. cit. supra,note 66 at 128. 93Frank, 215. 94 Holmes,65. (Emphasisadded).
566 WILFRID E. RUMBLE, JR.

accordwith the views of Dean Pound. Thus, he not only once com-
mented that "the weight attached to precedents is about the best
thing in our whole system of law",95but arguedthat
courtsare not legislatures,and are not at liberty to invent and apply specific
regulations accordingto their notions of convenience.In the absence of a
statute, their only duty is to discover the meaning of the contract and to
enforce it, without leaning in either direction.96
Moreover,Holmes'sphilosophyof judicialself-restraintsurely implies
that judges in reachingdecisionsshould "basetheir judgmentsupon"
not broad considerationsof policy but antecedent constitutional or
statutory norms.97
Once more, thus, the issue of whether Pound or the legal realists
interpreted Holmes more accurately cannot be easily resolved. No
one can deny the immenseinfluenceHolmes has exertedon the Ameri-
can jurisprudenceof this century.But like the influenceof other pro-
foundly important thinkers-such as Marx-it is an influencewhich
has been skewed. One reason for that is that Holmes's ideas contain
certain inner tensions which were never satisfactorily resolved, and
which could thus be used to justify conflictingclaims.
The purpose of this article has been to illuminate the nature of
legal realism as a movement in American jurisprudence.The inter-
pretation which I have tried to justify consists of three themes. The
first is that it is best understoodas an offshoot of sociologicaljuris-
prudenceas definedby Dean Roscoe Pound in the early years of this
century. The second is that the "rule-skepticism"of the legal realists
is the root of most of their distinctive doctrines.The third is that the
views of Mr. Justice Holmes symbolizemany of the differenceswhich
arose between Pound and the legal realists. At the same time, the
legacy of Holmes is sufficientlyambiguousfor Pound to claim with
some justificationthat his views ratherthan those of the legal realists
were the true mirrorof Holmes's position.
As this indicates,I have not tried to appraisethe ultimate signifi-
cance of legal realism,or the particularvalidity of its distinctive doc-
trines. I have not refrainedbecause such an evaluation is unimport-
ant. It is obviously vital. Before it can be undertaken,however, the
nature of Americanlegal realism must be clearly understood.It is to
that end that this essay has been directed.
Vassar College.
95Justice OliverWendel Holmes: His Book Notices and UncollectedLetters and
Papers, 35 (Schrivered., N. Y., 1936).
9 Bierce v. Hutchins, 205 U.S. 340, 47-48 (1906). (Emphasisadded.)
97For an excellent study of this facet of Holmes's work, see Konefsky, The
Legacy of Holmes and Brandeis: A Study in the Influenceof Ideas (N.Y., 1957).