USQ Law Society Law Review
Jaidyn Paroz
Winter 2022
THE IMPORTANCE OF AMERICAN REALISM IN JURISPRUDENCE AND HOW IT FUNCTIONS WITH STATUTE LAW JAIDYN PAROZ1 Throughout time, jurisprudence in legal systems all over the world has evolved with various theories of law being creating ranging from the statute and written rule-based positivism theories to the natural principles dependant theory of natural law. One such theory that takes a more moderate stance in terms of the two differing wings of jurisprudence is American legal realism.2 This theory is dependent on a combination of statute law and the judgement of legal authorities in interpreting the written laws and enforcing them in ways such as judgments made by judges.3 Therefore, it can be argued that American legal realism has played an important role in legal theory and does not undermine statute law. Instead, the theory of legal realism helps judges and legal authority figures make better decisions by providing a wider scope of interpretation than theories such as formalism, English positivism, or Germanic positivism but not as reliant on the laws of nature as other theories do. 4 This claim is despite some scholars claiming that American realism disregards the statute law and focuses too much on the role of judges and other key legal decision-making authorities in the legal system. The jurisprudence theory of American realism is based upon the foundation that the laws are not just written rules but also the actions of legal authorities such as judges. Scholars from the realist school of thought reject the conclusion that the written rules and legislation are the only sources of law and rather focus on the actions of the court systems and how judges interpret written laws and determine facts.5 Realism, however, essentially does agree with theories of Germanic and English positivism models in considering the law in what it is rather than focusing on what it should be.6 The theory of American realism began to take hold in the United States legal system particularly in its court system during the 1920s under the presidential administration of Theodore Roosevelt.7 Particular realist judges that are regarded to be quite
1
This paper was originally submitted as assessment for the subject LAW2224 Theories of Law.
2
Brian Leiter, ‘Positivism, Formalism, Realism’ (1999) 99 Columbia Law Review 1138, 1139.
3
L. L. Fuller, ‘American Legal Realism’ (1934) 82 University of Pennsylvania 439, 439.
4
Oliver Wendell Holmes, ‘The Path of Law’ (1897) 10 Harvard Law Review 460, 461.
5
Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford 6th ed, 2021) 175, 176. 6
Suri Ratnalpa, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 112.
7
Ibid.
103
University Press,
