| The American Legal Realism movement plays an important part in American legal history, both theoretically and practically. It remains a top concern of the American jurisprudence today. Jerome Frank and Karl Llewellyn represented the Radicals and the Moderates in this movement. Although there is an increasing interest in the research on Legal Realism, Jerome Frank and Karl Llewellyn in China, the existing research is not systematized, even the specialized works are also incomplete, even with a lot of misunderstandings and distortion. The present research tries to reveal the historical significance of Legal Realism through a comprehensive and systematic comparative analysis on the legal ideas of Frank and Llewellyn. The result indicates that the American Legal Realism was a legal reform attempt against the background of the New Deal. It can be compared to the Keynesianism in the legal circles. To further elaborate, this dissertation is organized into five chapters.Chapter 1 explores the nature of Legal Realism movement is beginning with discussion on the debate between Pound and Llewellyn, Frank, elaborates on its particular historical background, and compares Llewellyn and Frank’s individual experiences and the roots of their thoughts. The debate between Pound and Llewellyn, Frank were a prelude to the legal realism Movement. The present research finds out that Llewellyn and Pound shared similar views so the debate between them is friendly, while Frank and Pound have conflicting views so their debate were mostly criticism toward each other. This chapter clarifies the nature of their debates which has been misunderstood by many scholars and their attitudes toward Legal Realism, which also paves the foundation for further discussion. American Legal Realism movement is a product of its time. This research illustrates its historical and social background from a realistic perspective through discussing the Cases of the Federal Supreme Court on the ground that these cases embodied social conflicts and the objective of Legal Realism was to reveal the actual judicial process. Llewellyn and Frank’s individual experiences decided their legal thoughts to some extent, and Frank’s angle of view as a statesman and Llewellyn’s angle of view as a scholar. Although they shared the same early pragmatic basis, Frank was an advocate of Holmes while Llewellyn was a believer of Cardozo. As to the research methods, Frank preferred methods of psychology, while Llewellyn emphasized the methods of sociology. The comparison of the roots of their thoughts can partly show the background of the American Legal Realism movement.Chapter 2 compares on Franks Fact-Skepticism and Llewellyn’s Rule-Skepticism. Frank and Llewellyn are both realists, they share the critical attitudes to Legal Formalism, but the methods, contents and conclusions on critics are different. Frank employed psychological methods to destroy the basic myth of Legal Formalism, while Llewellyn employed sociological methods to prove that there was automatic expansion of rules words. Frank equals law with judgment, while Llewellyn emphasizes the translation from the rules-center theory to the behaviors-centered theory. Frank was of the opinion that judgment on first trial facts is subjective and affected by unpredictable factors, taking the "human" factors of the trial judges, jury, litigants, witnesses, and lawyers in the judicial process into consideration, thus it is uncertain. While Llewellyn points out that Frank exaggerates the influence of the human factors in trial process, through research the real judicial process can predict the results of cases. Frank’s Fact-Skepticism centers on trial courts while Llewellyn’s Rule-Skepticism centers on appellate courts. Llewellyn never neglected the importance of trial courts, and he reason that he chose appellate courts as his focus was strategic, because Llewellyn emphasized the function of the courts in institutional reform, that is to say, appellate courts could promote social reform through creating new rules while trial courts dealt with specific conflicts. This research shows that Frank was one of the complete Fact-Skeptics, and there was no transforming from a Rule-Skeptic to Fact-Skeptic. The ideas on legal education are the important contents of Frank and Llewellyn’s thoughts. Frank held that reform in legal education was a way to eliminate the defects in traditional legal studies. The trial judge should master some psychoanalysis techniques to help them recognize lies of the witnesses, lawyers, concerned parties and overcome their own prejudice. Frank aimed not to improve the competence of lawyers in predicting the results of cases, but to make the judge get closer to the objective happening of the event when determining trial facts. As professional educator, Llewellyn participated in the curriculum reforms in Columbia Law School, and published textbook on sales law, which carried out his thoughts on legal education. Different from Frank, Llewellyn aimed to make excellent lawyers in legal education, they know well the social background, the proper social demands, and they have sense of justice, they can provide instructive helps to judges in judicial process.Chapter 3 compares Frank and Llewellyn’s thoughts in their ideological systems. Frank and Llewellyn’s critique on Legal Formalism are not isolated. To Frank, the law was only an instrument to achieve his political and economical ambitions. He was a firm proponent of the New Deal and in support of the government’s measures for regulating economy and restraining unfair competition. Frank highly valued the American democracy system and claimed that the United State should isolate the European politics and keep away from the economic crisis and wars in Europe, and promote trade with other countries in America. Frank believed that individual freedom was the foundation of the American democracy system and opposed determinism of any kind. He was especially hostile to Marxism and the Communist Party of the Soviet Union. This research divides the development of Llewellyn’s thoughts into three periods. There are three organic parts constituting Llewellyn’s legal thinking, namely, criticism on legal formalism, sociology of law, and the pragmatic consideration relating to the appellate process. The thoughts on sociology of law and the pragmatic thoughts are carried on the spirits of critique, and the critique is the premise of latter thoughts constructing, the theory of wholeness is the sociological part of theory of Grand Style. In 1940s, Llewellyn put forward his law-job theory applied not only to modern society, but also to primitive society in a legal anthropology work cooperated with his student Hoebel. He hoped that his model could surpass the ideal model established by Weber and construct a legal sociology based on unified views. Although his model was not able to be completed, he still made profound contribution to legal sociology. Since 1950s, Llewellyn devoted himself to jurisprudence. With Legal Realism gaining increasing popularity, there appeared a pervasive skepticism toward the predictability of juristic decisions among lawyers. Llewellyn advocated the Grant Style to enhance the "reckonability". The Common Law Tradition is the best representation of Llewellyn’s pragmatic thoughts about law. The differences of Frank and Llewellyn’s ideological systems reflect on their appeals behind their legal thoughts. Frank pursuit equality before law through individual justice, that can maintain American democracy system perpetual. While Llewellyn hopes the legal system can bring about harmony, he sought the ways of how law workers know the social demands and how members of special groups achieve self-government under protection of law system.Chapter 4 compares Frank and Llewellyn’s practices. As the judge of the Second Circuit, Frank’s opinions and dissent opinions reflected his legal thoughts. The research shows that although Frank’s views were radical, his practices were conservative. Even he is a formalist in practice. Frank mastered the method of psychology, but he could not control his prejudice on Communism. That proves Frank’s proposals on legal education is useless. Llewellyn was also not confined to pure scholarship. He tried to put his legal ideas into practice in drafting the Uniform Commercial Code. Although canceling the merchant jury discounted his vision, in general, the Code still followed Llewellyn’s original framework with his idiosyncrasy. Both Frank and Llewellyn were firm supporters of the New Deal, and their thoughts were intended to establish a healthier economic and social order.Chapter 5 discusses the relationship between Frank, Llewellyn and early pragmatism, critical legal studies, and Legal Realism, and the influence of Frank, Llewellyn and Legal Realism to the American legal thoughts history. Legal Realism and the early pragmatism shared the same philosophical foundation. Frank was an adherent of Holmes, and Llewellyn was a believer of Cardozo, but investigation into their thoughts and practices reveals that Llewellyn was a real pragmatist while Frank was a borderline representative of legal realism. Since 1940s and 1950s, legal realism has become widely acknowledged, and most of the schools of jurisprudence in the 20th century were influenced by it. In a sense, all the legal scholars are realistic in one way or another. The legal and social movement and the critical legal studies in 1960s and 1970s were more realistic for they inherited different aspects of the Legal Realism movement. Legal Realism was successful in three aspects:shattered the myth of legal certainty of Legal Formalism, advocated interdisciplinary legal research, emphasized the relationship between law and politics. Since the 1940s and 1950s, the uncertainty of law was accepted as a common sense and hardly anybody still believed in the logical reasoning of the rules could lead to juristic decisions. Legal Realism greatly promoted interdisciplinary study on law, for example, Frank applied psychological methods in analyzing legal problems, while Llewellyn preferred theories of sociology and anthropology. Following Legal Realism, the New Legal Realism devoted to absolute objective descriptions of legal phenomenon. According to Llewellyn, the law came not only from rules and principles, but also from policies. Llewellyn’s legal ideas were intermingled with his political ideas while Frank’s legal thoughts served for his political ideals. Legal Realism was the legal reform in the New Deal. Critical legal studies were consistent with Legal Realism with respect to the political nature of law and indicated that law is an instrument for the political institution to protect the capitalist market and democracy which presupposes the inequality and conflicts between different classes. |
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