Lawmaking for Legal Realists

This article provides a concise analysis of lawmaking, inspired by what I perceive to be the realist conception of law. Legal realism, as I reconstruct it, stands for the proposition that law is a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive, yet irresolvable, tensions between power and reason, science and craft, and tradition and progress. Unlike some caricatures of legal realism, this understanding of legal realism explains why the original legal realists invested time and energy in various arenas of lawmaking, shaping and reshaping the various rules and standards that are to govern society. This sustained effort reflects a mature position regarding the rule of law whereby, notwithstanding the malleability of legal doctrine as such, the social practice of law implies stable expectations as to the content of the law at any given time and place. Redrawing the line between promulgation and application along these conventionalist lines paves the way for a realist account of lawmaking. This account is likely to rely on contextual and pragmatic analyses of the pertinent issues at hand. Thus, it implies that, rather than opting for either bright-line rules or vague standards, legal realists would recommend using both precise rules and informative standards founded on the regulative principles of the doctrines at hand, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. Legal realists would likewise avoid binary institutional choices and, in many contexts, appreciate the comparative advantages of both legislatures and courts — in terms of both expected performance and legitimacy — as potential contributors to the development of the law.