About the realism of legal realism

Gorban Vladimir Sergeevich Doctor of Law Head of the Department of Philosophy of Law, History and Theory of State and Law, Head of the Center for Philosophical and Legal Studies, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 gorbanv@gmail.com Other publications by this author

Gruzdev Vladimir Sergeevich Doctor of Law Chairman of the Board, All-Russian Non-Governmental Organization “Association of Lawyers of Russia”; Chief Researcher of the Department of Philosophy of Law, History and Theory of State and Law of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 vsgruzdev@yandex.ru Other publications by this author

The relevance and relevance of the appeal to the problems of legal realism, the need to clarify its meaning and content, as well as its place in the history of political and legal thought and in modern areas of law analysis are due to the fact that, being a popular perspective and a variant of the discussion of law, it remains unexplained in its main semantic characteristics, is often interpreted from the point of view of narrow regional approaches, while claiming to be almost paradigmatic in terms of rejecting excessive dogmatism, conceptualism, the dominance of theory and other things that hinder the rapid and practical renewal of law.     

Legal realism is often considered in modern historiographical models as a kind of invention and cultural phenomenon, characteristic primarily of American and, in addition to it, Scandinavian legal thought. There are also attempts to find other national or regional types of legal realism. In this sense, it is understood as a kind of paradigm of legal thinking, which self-designates a number of American authors with its core and, starting from its core, spreads in continental Europe or other countries of the world. For example, a new-fangled education called "new legal realism" relies on a group of scientists from the USA and Australia, claims no less than a revision of the entire cognitive model and conceptual apparatus, as emphasized in their works, of "traditional" jurisprudence ^{[21, 22]}. And the "periphery" of the paradigm of legal realism is becoming quite solid in order to influence the mood and direction of the discussion of law. At the same time, legal realism, in its American and Scandinavian versions, in general, could not offer any clear theoretical or even methodological model for the development of legal science. Basically, this is just a set of various kinds of observations, appeals, attitudes for the formation of the practical activities of lawyers, and a certain type of thinking.

Analyzing numerous publications and studies devoted to legal realism, first of all the works of domestic and foreign legal scholars and legal philosophers since the XIX century, i.e. since the era of the actual dominance of realism in the social sciences, who developed or critically considered realism as an epistemological setting of legal knowledge and ontological characteristics of law, such as P. Atiya, K. Bergbom, E. Garlan, G. Jellinek, F. Zheni, R. Iering, G. Kantorovich, B. Cardozo, F. Cohen, N.M. Korkunov, K. Llewellyn, K. Olivecrona, R. Pound, E.E. Pontovich, A. Ross, E.V. Spectorsky, B. Tamanakha, D. Tripp, F. Heck, L. Fuller, V. Eggenschwiler et al., the main question often arises, and to what extent what is called legal realism or described as such can actually be called realism? What exactly is realistic in the "legal-realistic" literature? And if this literature is called realistic, the type of understanding of law is called realistic, then everything else should probably be perceived and understood, respectively, as non-realistic?

Initially, the uncritical perception of American legal realism, which is also dictated, as it were, by the transition to "new" styles of scientific thinking with shades of modernity, creates a rather specific picture of the history of legal thought and suggests a more "free" perception of the logical in general, as suggested by empirio-critics, so to speak, to save thinking and not try to find out whether these or those are true or false ideas about the law, but only as a postulate to use one principle – whether this or that idea serves satisfactorily for certain tasks or not. In a word, just use the accumulated knowledge, and not try to create or prove it. This is the kind of modern ideologists of using the legal property of previous eras, in essence, are realists. This last attitude was clearly and clearly expressed by the American philosopher and psychologist W. James ^[10].

Modern American lawyer B. Tamanakha, in his reflections on the dangers of being carried away only by an instrumental understanding of law ^[17-20], explains that legal realism is generally a modern vision of legal issues (primarily from the point of view of the American national culture of legal thinking). This is a kind of sensible and practical view of legal issues, accompanied by the rejection of all kinds of theoretical, not to mention philosophical, speculations, interpretations, concepts, etc. The latter are a kind of chimeras that realists are resolutely fighting. The former history of thought, from the point of view of modern realists, abused the fascination with various kinds of mystical ideas, philosophical abstractions, theoretical explanations, concepts, categories, concepts, etc. Until now, in different regions of the world and not only within the framework of legal-realistic literature, attempts are often made to accuse jurisprudence of fascination with myths, something allegedly what constitutes a kind of theoretical framework of legal science, these are nothing more than myths, since no real objects seem to correspond to them in reality. And it seems scientific to some modern researchers only that which is verified either empirically or logically. Thus, it is possible to reach the denial of the entire spiritual and intellectual culture of mankind in general, since no real objects allegedly correspond to them.    

Here, however, it should be noted at once that, for example, the views of G. Leibniz were already called the philosophy of common sense, and F. led the fight against delusions that interfere with a real view of life. Bacon, who tried to replace the fruitless syllogism based on Aristotle's logic with a new realistic method (Novum Organum), offered to fight against various kinds of theoretical, spiritual and other chimeras, for example, Marxists, assuring that as they achieve the ideal of society under communism, all this is from the field of morality, law, religion, philosophy, etc., must itself die out as a relic of the bourgeois system. So the slogans of modern legal realists are strikingly not the same. However, modern realists practically do not recognize the kinship of ideas, otherwise it will turn out that it will be necessary to recognize that even their slogans and appeals themselves already have a certain type of philosophy, or more precisely, a direction of philosophy known from ancient times and developed within the framework of philosophical schools.

B. Tamanakha writes that an instrumental understanding of law threatens to destroy the principle of the rule of law in the United States. Firstly, he once again demonstrates that legal realism – as the main tool of the instrumental understanding of law – reveals the patterns that the classics of Marxism wrote about. In particular, he writes: "A purely instrumental view deprives the law of any internal moral integrity: the law becomes an empty vessel that can be used to commit anything, no matter how reprehensible it may be. Disputes about the common good — or, more precisely, disputes between groups aggressively pursuing their own vision and interests — dominate the legal field, manifesting themselves in battles over the appointment of judges, legislation and administrative and executive actions. As a result of these battles, losers and those who are completely excluded from the competition find themselves in a position where the law is seen as a weapon directed against them, and not as a social product that protects public welfare and generates an obligation of obedience" ^{[16, p. 505]}. Secondly, the desired ideal, according to B. Tamanakhi, should be a movement towards "a more purposeful and pragmatic justification of judicial decisions", since legal realism, understood as instrumentalism, causes "widespread skepticism about the ability of judges to make objective decisions <...> These events, in turn, contribute to politicization selection of judges and, as a consequence, politicization of court decisions" ^{[16, p. 505-506]}.

If B. Tamanakha had really been familiar with the works of the classics, whose works he mentions only casually, in passing, he would probably have been very surprised that, for example, R. Iering explained much more fully and interestingly the connection of his teleological formula with the realization of the ideal of the rule of law, legality and law and order, legal behavior, etc. This would also be important because in the title of one of his books and often in the description of the so-called instrumental approach to law, B. Tamanakh, although without references, everywhere uses the American version of the title ^[17] of one of R. Iering's books "The Goal in Law". Since the American translators considered that this title could not be accurately translated into English, one of the key phrases from the book was chosen for the title – "law as a means to an end." And therefore, in the American translation, the well-known work of Iering is called "Law as a means to an end" ^[9]. 

There is also a popular myth in explaining the meaning and significance of modern legal realism, as if externally observed, without taking into account the real state of affairs, economic successes, for example, the United States or other countries, are directly almost the result of their, including legal thinking. This is far not only from the real state of things, but also from a scientific point of view, a kind of version of quasi-religion. The economic success of a country has different reasons and does not directly explain its legal culture. This issue requires detailed explanations and analysis in each case. A simple example can be given. So, in particular, G. Kelsen in his reflections often compared the state with a robber gang, trying to show that in both cases there are certain internal rules of behavior and that in the case of the state these rules form a legal order based on the basic norm ^[11]. This is the interpretation of an Austrian lawyer who emigrated to the United States and lived and taught there for a long time.

According to this analogy, can we assume that a bandit gang may have a certain wealth, looted in one way or another? Of course, yes. But what about the right in such a "collective"? Although in modern literature there are authors who, in the formulas of interpretation of law that appeal to them, find some semblance of legal consciousness in criminal groups, calling it criminal, but still legal consciousness. Therefore, there are no scientific grounds to explain the merits of the legal culture of a particular country as a direct consequence of its externally visible economic success. If someone would like to explain legal concepts in this way, then he should, at least, accurately trace the connection of a specific legal belief, legal decision, mechanism, norm, etc. with the emergence of a corresponding economic effect.

For example, in the USA, of course, there are clear economic successes, but at the same time extremely high crime rates, astronomical external debt, high rates of poverty, unemployment, illiteracy, etc. So attempts to interpret legal realism as a kind of special sanity and practicality that determines economic well-being are empty and weak areas of scientific analysis. However, if an accentuated focus on practice (which also requires careful and more specific explanation) still leads to important socially demanded changes, improving the welfare of the population, then specific aspects of such influence and changes should be studied and, if necessary, adopted as best practices in solving certain problems and tasks of social development.

One can give an example of the beliefs of some of the most desperate realists of the XIX–XX centuries, who sought a radical transformation of social reality, a gradual rejection of all unnecessary superstructure phenomena (more precisely, promising their extinction as ideological myths of the old system), Marxists who proposed to fundamentally distinguish between the economic basis and the superstructure. This formula has had and still has a much greater impact than it seems at first glance. The basis and superstructure are the basic concepts of Marxist doctrine. K. Marx in the preface to the essay "On the Criticism of Political Economy" (1859) wrote: "In the social production of their lives, people enter into certain, necessary, independent of their will relations – production relations that correspond to a certain stage of development of their material productive forces. The totality of these production relations constitutes the economic structure of society, the real basis on which the legal and political superstructure rises and to which certain forms of social consciousness correspond" ^{[2, p. 6-7]}.

If legal realists claim that they are fighting with various theories, concepts, teachings, etc., then this means that they are fighting, from the point of view of Marxism, with an ideological superstructure. In essence, this is how the question is posed. In this regard, realists are in principle in the same company with Marxists, as well as other sociological theories of law: the jurisprudence of interests ("Tubingen school"), the intellectual movement for "free law". However, there are theories among European realists that are much more progressive and meaningful in theoretical and methodological terms than American and Scandinavian legal realism. O. Holmes and R. Pound suggested following the path of Europeans, the best examples of sociologically oriented theories of law, but their reflections, although very eclectic, but at the same time really interesting, became mainly slogans, appeals, and the credo of legal realism. The views of O. Holmes and R. Pound are distinguished from all subsequent realists primarily by the fact that they have respect for theory and methodology, or at least attempts to justify them: the first is in the field and on the basis of public law, and the second is in the field and on the basis of private law.    

Realists are not interested in questions of social reality as something common and big. In the first place are economic issues, or rather economic interests. Even the examples of legal realism that American lawyers write about are mainly from the field of commercial law. Realists in the United States, as in all legal practice in general, have grown mainly from corporate lawyers, who constitute the only dominant group in the legal culture of the United States. Studies by American scientists on the history of legal education in the United States ^[15], as well as, for example, the formation of the ideas of O. Holmes, who stood at the origins of legal science in this country, show that changes in the legal culture of the United States occurred largely only under the influence of the "order" of corporations. In fact, legal realism in the United States is not about fair social practice. Even the US Bar Association is one of the serious financial and corporate organizations with multimillion–dollar budgets and fees. Association is almost the only reliable way for a legal career in the USA, but it also requires substantial investments. The influence of financial capital in the modern USA also remains the most significant factor in the development, including the legal system. Therefore, for the American legal realist, the central theme of his realistic view, as a rule, remains the relationship of law with economics, or, in other words, how well legal practice satisfactorily serves economic interests. And here again there is an image of the ideas of the classics of Marxism. In contrast to them, R. Iering was talking about the right as a protected interest in general. He has at the center of the concept of law social interests in all their diversity.

In the works of M. Weber and G. Kelsen, the idea was asserted that the entire legal theory, in their interpretation, is a continuation of the type of socio-economic structure. Both viewed the rule of law as a direct continuation of the capitalist economy. Therefore, for example, in G. Kelsen, the problem of normativity as a simple duty (must because it must), outside of the moral context, sociological, psychological and other arguments, is easily solved, its solution rests on the authority of the socio-economic system, as well as the socio-religious consciousness of Western society. The obligation in the teachings of G. Kelsen is very precisely explained with the help of explanations given by M. Weber regarding the relationship between law and economy, as well as the role of state coercion in modern economics and public life: "... economic interests are one of the most powerful factors influencing the formation of law, since the existence of any authority guaranteeing legal order, so otherwise, it is supported by the coordinated actions of the relevant social groups, and the formation of social groups is largely due to the totality of material interests" ^{[23, S. 383]}. Further, "... the modern speed of turnover requires a law that is responsive and reliably functioning, i.e. guaranteed by the strongest coercive power (our italics)" ^{[23, S. 385]}. Therefore, and not only, in the supposedly "pure" doctrine of the law of G. Kelsen, the demand is persistently asserted to purify jurisprudence from all foreign elements, but not from the economy. It turns out to be a completely alien element. In the preface to his book "The Pure Doctrine of Law", he demanded to purify the theory of law only "from political ideology and all natural-scientific elements" ^{[11, S. 3]}. In the section on the meaning of the word "purity" in his teaching on law, G. Kelsen referred to "psychology and sociology, ethics and political theory" as elements alien to jurisprudence ^{[11, S. 21]}. He did not write about the economy at all. However, taking into account the influence of economics or economic interests on legal theory in general and in the period reviewed by G. Kelsen, it should be unequivocally concluded that his teaching is a "pure" doctrine of law for a purely capitalist economy, the legal superstructure of the latter. And duty for the sake of duty in his teaching is another explanation of the growing importance of "coercive power" for law enforcement, a reasonably understood, or rather even unconsciously implemented, policy of force.      

There is an extensive literature that explains in detail the influence of Protestantism on the formation of socio-economic ideals and relations in Western Europe and the United States. In numerous pure doctrines of law at the end of the XVIII – first quarter of the XIX century. the prerequisite for the possibility of pure doctrines of law was the idea of man as a moral entity, and the corresponding teachings, as a rule, were a continuation or a section of moral philosophy. Moral philosophy has simply been replaced by a more "realistic" approach – about the dominant importance of economic interests. In this sense, the Soviet legal theory, which proceeded from a narrowly normative interpretation of law, did not differ in any way from the normativism of Western authors, with the only caveat that the Soviet theory proceeded from the recognition of another type of socio-economic system as more just.        

The connection between law and economics is extremely important. However, it cannot explain, at least exhaustively, the essence and meaning of law, except only as a tool for the protection and implementation of economic interests. Why, for example, American legal translators could not translate the title of R. Iering's book "The Goal in Law", explaining that the American reader would not understand the meaning of the topic about some big, defining goal in law. As a result, a simpler and more understandable option for American lawyers appeared: "Law as a means to an end." It was a phrase taken from the text of the book. Under this name, the famous book by R. Iering is known in the USA.

Legal realism can be of interest for the development of legal thought, the development of modern ways of developing law only if it focuses on a broad social practice, which will focus on economic issues, and the welfare of the population, and issues of culture, and legal awareness, etc. Law serves as the most important guarantee against arbitrariness and chaos. First of all, it must keep society and order from any destabilizing and dangerous influences. Realism as a culture of sanity can also have a positive value when it offers solutions that correspond to the real interests of a particular society, specific citizens.

Legal realism can act as a means against the inertia of dogmatism, conceptualism, when decisions are made for the sake of a decision or for the sake of an idea. Here the well-known theme of the old and the new enters into the struggle, which was very well shown in a number of works by R. Iering. But such an orientation to real interests, and not to dogmatism, nevertheless cannot be the main idea of development. American legal practice demonstrates this very well. For an American judge, when making a decision, it is important, among other things, to take into account the party affiliation of the participants in the process in search of real interests, as well as the decision will depend, among other things, on the judge's party affiliation. This is an American reality and it is directly indicated in the legal-realistic literature.

Interests can be very diverse. Scandinavian realists generally suggested interpreting law through some mystical, irrational psychological impulses. For them, an irrational understanding of human nature becomes a reality. Here you can offer many of the most ornate and bizarre explanations of reality. Modern commentators and researchers of R. Iering's work have come across the fact that the concept of interest or purpose, as the creator of all law, seems to be very practical, but somehow arbitrary. Therefore, they began to add that Yering did not mean any goal at all, but only a rational, reasonable one. Hence there was such a clarification that it is not the goal that is the creator of all law, as Iering wrote, but allegedly he meant that a reasonable goal is the creator of all law ^[4]. For another outstanding lawyer of the XIX century, O. Girke, realism means first of all the spiritual and practical reality of the national legal culture, from the analysis of which the socio-practical task of forming social law arose ^[7]. "The social task of law" is a special term proposed by O. Girke ^[6]. B.N. Chicherin wrote about the reality of the phenomenon of nationality, revealed in the form of unity of language, culture, literature and other elements of the life of the people ^{[3, c. 65, 68, 69, 75]}.     

There are numerous types, types and interpretations of realism. Materialistic realism, social realism, psychological realism, spiritual realism, philosophical realism, etc. Legal realism is nothing more than a certain coloring, a shade of understanding of law, connected, in essence, only with a more sensible perception of the environment, historical events, needs, interests, etc. It may have a theoretical justification, even its own concept. This was demonstrated primarily by the European realists of the XIX century . American legal realism is just a culture of treatment of American lawyers with American law that has some specific features, which helps them solve issues of updating particularized case law.    

Realism, as a rule, does not set itself the task of answering the question of what should be, it only focuses on what is, imitating sociological approaches to law.

In 1941, a book entitled "My Philosophy of Law: the Credo of Sixteen American Researchers" was published ^[13]. Firstly, of course, the name "my philosophy of law" attracts attention, and secondly, the word "credo". The last word is very revealing. It has deeply religious roots in Western cultures, including the English language. This word in Christianity denotes the Symbol of Faith, and in general the etymology of the word is associated with the meaning of "believe", "trust", from Lat. credere.  

At. Ross from Ohio University in 1942, in a review of the book, noted that the realists who occupied an important place in this book, in fact, are trying to "carry water with a sieve" ^{[14, p. 354]}. In his opinion, realists are too busy with questions about what already exists, while "the requirements of today are that legal norms correspond to actual social needs" ^{[14, p. 354]}; "...the difficulty with realists is that at a time when there is a need to discuss the law that should be, they are looking for a descriptive sociology of the law that is. But even if they succeed in their search for descriptive legal science, their efforts at the moment contribute little to achieving the goals of democracy today and tomorrow" ^{[14, p. 356]}.

What else especially unites legal realism in the United States with the ideas of Marxists is that both directions easily give out promises of a bright future. The fact that legal realism basically lived and lives on promises and programs was remarkably written by L. Fuller, who himself was initially an ardent supporter of realism. So, in particular, he wrote that the "realistic movement" exists "mainly due to the process of discounting its own future. Manifestos and action programs were issued. Discussions have been held on the proper "approach", conducted for the most part at a respectful distance from the problems that need to be approached. Recently, there have been scattered attempts to apply this approach. But we still lack a comprehensive work that would simultaneously describe and apply the methods of legal realism, which could serve as both an exposition of the approach and an example of it. We have nothing that could compare, say, with Zhenya's four-volume "Science and Technology"..." ^{[5, p. 430]}.

To understand legal realism, K. Llewellyn proposed the idea of "situational meaning" in the book "The Tradition of Common Law" ^{[5, p. 430]}. The essence of this idea is as follows: "Assessing the facts, try first to find a significant life problem-a situation in which they fit comfortably, and only then allow specific issues of justice to begin to manifest themselves; so that when specific issues of justice really begin to become acute, their acuteness is already mitigated by the search and the feeling of the possibility of an appropriate rule that follows from the type of a significant situation and fits into it" ^{[12, p. 222]}.

What is the "situational meaning" that K. wrote about? Llewellyn? Practically according to G. Hegel: "here is a rose, dance here" or look for the reasonable in the real ^{[1, 8]}, or rather even a legal feeling according to R. Iering. It just prompted the search for "living law", about which R. Iering wrote already in the second volume of the "Spirit of Roman Law". The jurisprudence of interests led by F. Hecom proposed to "weigh the interests", and the lawyers of "free law" proposed basically not to be limited even by the principles of law, to focus on the same lively legal sense of the judge and the lawyer-practitioner. 

Summing up the research, we can give the following answers to the questions posed at the beginning:

- legal realism, taking into account the variety of options for its interpretation, is not homogeneous and in each case requires clarification of the corresponding semantic content from both epistemological and ontological points of view. Unfortunately, to clarify the meaning of the concepts of "reality of law" or "legal realism" in modern literature, they often resort to either methodological or ontological reductionism, which significantly simplifies the diversity and complexity of legal phenomena and ideas;

- self-certification of legal views as realistic or a variant of realism cannot serve as a sufficient basis for recognizing appropriate approaches to the understanding of law and to the methods of its cognition as having a realistic character;

- the ideas of legal realists or self-designated areas of law analysis in the twentieth century, especially American legal realism, reproduce cross-cutting and well-known themes from the history of legal thought about the struggle for sanity in the social sciences, about the rejection of inert and excessively abstract theoretical constructions, i.e. they turn out to be the principle of dogmatism-free legal thinking. In this regard, the legal realism of the twentieth century and neorealism of the beginning of the XXI century are very consonant with their predecessors, including the materialistic approach in social science, in particular Marxism, with its ideas about the inevitability of the death of various superstructure phenomena. The ideas of most realists about the main role of situational meanings and facts are a direct continuation of scientific positivism and its characteristic methods of cognition;

- realism as an attribute of legal knowledge can mean, first of all, the requirement of a consonant existence and a useful mutual influence of theory and practice, the dominance of common sense in the analysis of legal issues.