Influential Articles: Llewellyn’s Law-in-Action

Posted on Categories Legal Scholarship

In response to the Blog editor’s call for discussions of law review articles that have influenced our work as academics, I offer a few words on Karl Llewellyn’s “A Realistic Jurisprudence – The Next Step,” 30 Columbia Law Review 431 (1930).  Llewellyn’s words are often cited as the first important salvo of the legal realist movement, and the article has influenced my own teaching and writing in virtually every subject area I’ve tackled.

Llewellyn begins by asserting that “law” is one of our “loosest of suggestive symbols.”  “Law” ranges in his mind from such simple forms as statutes and appellate holdings to a range of socio-cultural control devices and institutions.  “I have no desire to exclude anything from matters legal,” Llewellyn says.  “I am not going to attempt a definition of “law.  Not anybody’s definition; much less my own.”

However, Llewellyn then goes on in the bulk of the article to emphasize a particular “focus” or “point of reference.” 

He acknowledges that written rules or precepts can help fix the attention of legal thinkers, but he thinks it’s more useful to consider law as it emerges from human contacts with courts, the legal profession, law enforcement, and other legal institutions.  This is “law-in-action” rather than “law-in-books.”  It is “law” on the level of “isness” rather than “oughtness.”  It is messier and less predictable, and Llewellyn understands why legalists might shy away from the conceptualization.  “Always the night of words will close again in beauty over the wild, streaked disturbance.”

In conclusion, Llewellyn suggests “law” need not come only from human contacts with legal institutions.  Beyond the legal institutions, after all, is the whole “social set-up.”  “Part of law, in many aspects, is all of society, and all of man in society.”  Thoughts of “law,” if approached from the right point of reference, can invite consideration of normative human behavior in general.  This, in turn, might even lead us to reflect on what we mean by “humanity.”

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