An Inquiry Into The Fundamental Appeals Of Frank's Legal Realism

The legal certainty is a basic problem in legal theory. The American legal realism movement, which researched the legal certainty, opened the beginning of oppugning it in the modern times. As a result, it has struck the conventional legal theories. As one representative of American legal realism, Jerome Frank is famous for his proposition of legal uncertainty, because of his turn from a rule-skeptic to a fact-skeptic. However, it has been ignored and contemned why Frank's ideas have a so sharp turn and how did the turn affect his whole theoretical construction. This very respect is the center for the inquiry into Frank's fundamental appeals behind his legal ideas.The whole dissertation consists of five chapters, in addition to the introduction and the conclusion. They are the advancement of Frank's legal realism, the rule-skepticism of Frank, the fact-skepticism of Frank, the analysis of Frank's academic turn and the reconsideration of Frank's legal realism.In the introduction, the thesis, approach and framework are established. Serious reflection and further questioning the fundamental appeals of Frank's theory has an important and far-reaching significance, which is represented not only on the excavation of his inner logic, but also on the clarification of his whole thought.In the first chapter, the establishment of Frank's legal realism is set forth. However, if we use the internal analytic approach alone, we can not explain the production of Frank's legal theory and can not explain exactly why it represents such theoretical form. So firstly the author analyzes the external factors which affect Frank's theory.Although Frank is an important ideologist in the history of academic development, he doesn't do the pure academic research in the tower of ivory. As a jurisprudent facing the real life, Frank concerns about all the social problems, and the main theme to him is to make all of the people have a happy life. Affected by Holmes and Hand, Frank uses the constructive skepticism to destroy all kinds of legal"myth"which shackled people's thought and behavior and to face bravely the real situation of the legal reality by releasing the fake ideas of law.Besides the acute insight into the true-life problems, Frank's legal realism has established on four underpinnings: the standpoint of pragmaticism, perspectivism view on history, the standpoint of democratic politics and psychological resources such as psychoanalysis. They constitute Frank's basic social opinions: All individuals who make up the society can be fallible and the society is not perfect or absolute. It's based on the opinion that Frank insists the law in action and defines the legal theme as what the courts do or ought to do in fact. In his opinion, law is not logically self-complacent rule system, but the important guidance for people to pursue happiness.Whether Legal uncertainty results from rule or fact not only is the argument between the two groups of legal realism, but also is the intense battle in the development of Frank's whole theory. So an in-depth discussion has been made on the rule skepticism and fact skepticism of Frank in the second and third chapter. There has been the same structure. Following Frank's logic, these chapters put forward some theoretical questioning, then they destroy one kind of myth, finally they establish correlative theories. Although"realism"has prolific meanings, it intends to emphasize the idea that legal realist considers that the law in action is the real law here.In the second chapter, efforts have been made first of all to clarify some of Frank's criticisms on Langdell's legal formalism. Among them, the most important criticism is aimed at Langdell's such proposition that law is an exact science based on legal objectivity. Frank insists that legal certainty is a human illusion, it is a"basic legal myth", and legal uncertainty is of great social value. It is the opinion of legal uncertainty that supplies the breakout against the conventional legal theories. Along with the basic legal myth, there is the subsidiary myth that judges never make law. It is on these criticisms of the two kinds of myth that Frank's"the average man theory"and"the conclusion first theory"are performed. This is followed by the hope that people are liberated from the myth by obtaining mature mind.Frank makes a definition of law from the point of view of the average man. Law, then, as to any given situation is either (1) actual law, i.e., a specific past decision as to that situation, or (2) probable law, i.e., a guess as to a specific future decision. The core of his definition is the influence exerted by the decision on the parties. So far as the problem is concerned, Frank inherits the prediction theory of Holmes. However, he cannot distinguish law from morality because of the distinction of the prediction theory and the bad man perspective.The conclusion first theory makes the mental state important to the decision in law suits. That the personality of the judge is regarded as the pivotal factor of his theories is in favor of his academic turn. As a rule-skeptic, Frank does not doubt the existence of legal rules, but he doubts whether the application of rules can result in the expectable decision and whether the law can supply the reasons for people's abidance in specific law suits.In the third chapter, the construction of Frank's fact-skepticism is performed. In his opinion, the rule-skeptics focus on the prediction of the opinions of the upper courts and ignore the trial courts, because they pay attention to the application of rules, ignore the effect of the fact on the decision, and don't see the shaping function of the facts on the rules. So Frank destroys the upper-court myth and criticizes the doctrine of stare-decisis. He thinks that the fact-finding in trial courts is the center of judicial activities and trial courts are the vitals of court-house government. The reasons of the judgment are the fact discretion of trial courts and its fundamental function.The introduction of fact dimension is one of Frank's contributions. A fact is different from the objective fact, it is also different from the normative fact. , and it is a subjective fact. This kind of fact is important to his theories. On one hand, the proposition breaks through the close relationship between the objectivity and judicial justice; on the other hand, it cancels the great gulf fixed between the mind and the reality. It is an academic attempt at the most fundamental problem of philosophy in legal theory.Frank's academic turn is analyzed in the fourth chapter. The understanding of his turn is pivotal to the inquiry, so the chapter is the core of this dissertation.Preface to sixth printing of Law and the Modern Mind is a symbol of Frank's academic turn. In the external dimension, the criticisms from such scholars as Mortimer J. Adler and Morris R. Cohen accelerate the development of Frank's legal ideas and the turn. At the same time, Frank promotes his fact-skepticism by animadverting on the thought of Cardozo and Felix Cohen. In the internal dimension, Frank thinks the unblindfolding of justice is real. On the contrary, justice in the abstract sense is unobtainable. It is because of obstructing the realization of the unblindfolding of justice that Frank turns from the doubt of rules to the doubt of fact-finding. In virtue of the doubt, Frank improves the judicial process and insures the sustainability of the unblindfolding of justice.The significance of Frank's turn lies in that he doesn't consider the nature of law from the legislative viewpoint, but he elucidates the actual law in special judicial situations. In other words, it means that he has a profounder understanding of law in action. The most important is that Frank notices the interaction between the rule and fact in the operation of law. Although the unblindfolding of justice can explain the turn, it makes his theory emphasize individualization to excess. It is indispensable to inquire the deep-seated fundamental appeal behind his theory. So an overall analysis needs to be performed. Firstly, five aspects of the criticism are investigated, which are legal certainty, the problem of perspective,the academic domain, the consistency of the decision and the efficacy of law; Secondly, the presuppositions of Frank's theory are uncovered, which are the individual law suit, the collision between right and power and the instrumentalism with the dichotomy of means and ends; Thirdly, as the deep-seated fundamental appeal, Frank's social ideal is pointed out, which is to maximize the individual potential and allow each person to lead a good life. It is to form an intelligently organized society which would maximize the individual potential and allow each person to have a good life; Finally, the core of legal education theory is revealed. Frank suggests that the non-Euclidean legal thinking should be possessed and, most directly, the lawyer-schools should be established.In the conclusion, the intellectual contribution and the limitation of Frank's theories are generalized. From the standpoint of academic development, Frank advances Pound's criticisms of some abstract theories of rights in the 19th century and prepares for the advancement of procedural jurisprudence. However, he shares a similar assumption that good law and its operation is the best method for his ends, which deserves earnest thinking and demonstrating. When it comes to the legal research in China and Chinese enterprise of the rule of law, it is believed that the spirit of Frank's skepticism is beneficial to break the restriction of conventionality and to break away from the shackle of chronic behavior. Otherwise, the useful revelation of Frank's specific viewpoints is reviewed on three aspects, i.e., the rule of law, justice and fact.