| The purpose of this study is to trace the development of an idea--to discover its sources, to analyze its growth, and to consider its consequences. The idea--that American judges make rather than declare the law--is not a particularly complex or novel one. Yet, it lies at the very heart of the legal theory which over the last half-century has become the predominant and prevailing legal philosophy of the land. Although this work involves aspects of a study in legal history, it is not intended as a systematic survey of twentieth-century American jurisprudence or a comprehensive analysis of legal realism. Rather, it seeks to identify and examine in detail the "habit of thought" which challenged and ultimately replaced traditional American constitutional theory.;This study is organized into five chapters. Chapter One explores the conventional wisdom of the nineteenth and early twentieth centuries concerning the judicial process, one which limited a judge's legitimate role to "finding" appropriate legal rules and "announcing" their application in discrete cases. Chapter Two considers the impact of two late nineteenth-century legal scholars--Oliver Wendell Holmes, Jr. and John Chipman Gray--upon this orthodox view. These two pragmatic theorists focused upon the extent to which judges were involved in a process of legislation and challenged the descriptive validity of "mechanical jurisprudence." Chapter Three examines the efforts of Roscoe Pound, Joseph Bingham, and Benjamin Cardozo to develop a new theory of law, one which stressed the creative element inherent in the judicial process, and argued that the law should become an instrument for the social reconstruction of the nation. Chapter Four focuses on the works of Karl Llewellyn and Jerome Frank, and outlines in detail characteristics of the realist movement. Chapter Five summarizes contemporary debate over realism's principal legacy--an activist judiciary--and considers the extent to which realism continues to dominate twentieth-century American jurisprudence. In a brief conclusion, the author suggests that this problem of ethical relativism which plagued realists of the 1920's and 1930's continues to plague twentieth-century American jurisprudence. |
