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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
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.
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).
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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