Legal Realism: Freud and Nietzsche

Jerome New Frank (1889-1957) was a legal philosopher who played a leading role in the legal realism movement and a judge of the United States Court of Appeals for the Second Circuit.

In February 1941, President Franklin D. Roosevelt named Frank as a judge of the United States Court of Appeals for the Second Circuit. He was confirmed by the Senate in March 1941. Frank was considered a highly competent judge, often taking what was perceived as the more liberal position on civil liberties issues. He served as an active judge on the court until his death in 1957.

Frank published many influential books, including Law and the Modern Mind (1930), which argues for ‘legal realism’ and emphasizes the psychological forces at work in legal matters. His other major work, Courts on Trial (1949), stressed the uncertainties and fallibility of the judicial process.  Frank was well-read in the field of psychoanalysis and underwent a course of psychoanalytic treatment.

(Retired judge, Patricia Wald, former chief judge for the United States Court of Appeals for the District of Columbia Circuit, clerked for Judge Jerome Frank for one year following her graduation from Yale Law School in 1951.)

It has become quite common today to identify Justice Oliver Wendell Holmes as the main precursor of American Legal Realism (other influences include Roscoe Pound, Justice Benjamin Cardozo, Justice Louis Brandeis, and Wesley Hohfeld).

No single set of beliefs was shared by all legal realists, but many of the realists shared one or more of the following ideas:

-- Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast.

-- Belief in the importance of interdisciplinary approaches to law. Many of the realists were interested in sociological and anthropological approaches to the study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of this tendency.

-- Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.

Stated differently, legal realists advance two general claims: 1) Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question "What is (the) law?" is "Whatever judges or other relevant officials do".

The heyday of the legal realist movement came in the 1920s through the early 1940s. Following the end of World War II, as its leading figures retired or became less active, legal realism gradually started to fade.

I have identified a passage in Nietzsche's Beyond Good and Evil that when paraphrased provides a useful summary of the central tenets of legal realism.  Nietzsche proposes that philosophers are not guided by a drive for knowledge, but a wish to rationalize their personal values and psychological predilections.  Legal realists argue that judges too are not guided by legal abstractions; their opinions are legal rationalizations of their subjective passions.

Nietzsche wrote:

Gradually it has become clear to me what every great philosophy [judicial opinion] so far has been: namely, the personal confession of its author and a kind of involuntary and unconscious mémoires; also that the moral (or immoral) intentions in every philosophy [judicial opinion] constituted the real germ of life from which the whole plant had grown. Indeed, if one would explain how the abstrusest metaphysical claims [legal positions] of a philosopher [judge] really came about, it is always well (and wise) to ask first: at what [personal] morality does all this (does he—) aim? Accordingly, I do not believe that a "drive for knowledge"  is the father of philosophy; but rather that another [unconscious, psychological] drive has, here as elsewhere employed knowledge (and mis-knowledge!) as a mere instrument. But anyone who considers the basic drives of man to see to what extent they may have been at play just here as in inspiring spirits (or demons and kobolds—), will find that all of them have done philosophy at some time—and that every single one of them would like only too well to represent just itself as the ultimate purpose of existence and the legitimate master of all the other drives. For every drive is domineering: and as such it attempts to philosophize.— To be sure: among scholars who are really scientific men things may be different—"better," if you like—, there you may really find something like a drive for knowledge, some small independent clockwork that, once well wound, works on vigorously without any essential participation from all the other drives of the scholar. The real "interests" of the scholar therefore lie usually somewhere else, in his family, say, or in making money, or in politics; indeed, it is almost a matter of total indifference whether his little machine is placed at this or that spot in science, and whether the "promising" young worker turns himself into a good philologist or an expert on fungi or a chemist:—it does not characterize him that he becomes this or that. In the philosopher [law] conversely, there is nothing whatever that is impersonal; and above all his morality bears decided and decisive witness to who he is—that is, in what order of rank the innermost drives of his nature stand in relation to each other.