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59 Yale L. J. 886 (1949-1950)
Towards Realism in Legisprudence

handle is hein.journals/ylr59 and id is 898 raw text is: TOWARDS REALISM IN LEGISPRUDENCE JULIUS COHENt ON paper, at least, the pragmatic revolt against arid conceptualism in the law is perhaps one of the most significant developments of modem jurisprudence. Pragmatists, functionalists, experimentalists- realists of all shades: Holmes, Pound, Cook, Llewellyn, Radin, Arnold, and Frank, to mention but a few-though flying different banners, and employing different weapons of warfare, stormed the citadel of the formalists, united in the belief that the meaning of legal concepts is to be found in the consequences that they produce, that is, in terms of human gains and deprivations.' Actually, the storming was more on paper than on the battlefield, with victory claimed only by those optimistic generals who take the long range view of the future and blithely write off the present as having passed. The foot-soldiers in the court-room and in the law schools are still engaged in heavy combat; to them, the present is still very real, and the outcome of the struggle by no means certain. What is to be deplored, however, is less the lag between plan and execution than the fact that the attack upon the formalists of the law has been planned for only one front-the judicial. Holmes' critique of the imbalance between logic and experience,2 Pound's aspersions upon the mechanical in legal thinking,3 Cook's exposure of the manipulative aspects of the legal syllogism,4 Llewellyn's plea for a look-see on how the law actually works,' Radin's legal realism,O Arnold's folklore,7 Frank's diatribes against the meaninglessness of legal rules, Morris Cohen's criticism of the phonograph theory of the law,9 Felix Cohen's barbs on transcendental nonsense 0-all of t Professor of Law, University of Nebraska. 1. For a general picture of American realism and realists, see GARLAN, LEGAL REALISM AND JuSTIcE (1941). The expression gains and deprivations as used here owes its immediate origin to Harold D. Lasswell's indulgences and deprivations, See his Describing the Contents of Communications in SMITH, LASSWELL & CASEY, PROPAOANDA, CO UruNICATION AND PU rLIC OPINION 74 (1946). The more remote origin for both is, presumably, Bentham's concept of pains and pleasures. 2. HOLMES, THE COMMON LAW 1 (1881). 3. Pound, Mechanical Jurisprudence, 8 Coi. L. REv. 605 (1908). 4. W. W. Cook, Scientific Method and the Law, 13 A.B.A.J. 303 (1927). 5. Llewellyn, Some Realism about Realism--Responding to Dean Pound, 44 HARv. L. REv. 1222 (1931). 6. RADin, LAW As LoGxc AND ExPmRINcE (1940) ; Radin, Legal Realism, 31 COL. L. REv. 824 (1931). 7. ARNOLD, THE FoLx oa OF CAPITAL! (1937). 8. FRANK, LAW AND THE MODER MIND (1930). 9. M. R. COHEN, LAW AND THE SocIAL ORDER 112 et seq. (1933). 10. F. Cohen, Transcendental Nonsense and the Functional Approach, 35 COL. L. REv. 809 (1935).

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