Legal Realism: The Constitution as an Institution

Legal Realism: The Constitution as an Institution

The Constitution as an Institution

Karl Llewellyn

Columbia Law Review 1934

Lest anyone think that this blog has turned into a “how to care for goats” blog, I thought I would change things up by posting something more law related. So here is a short summary of Karl Llewellyn’s introduction of a theory of “legal” realism. Judge Judy is the post main picture as she is dedicated to “keepin’ the law real”. What is the law if not the way to settle our everyday disputes?

What is law? How does law operate? Do judges follow precedent? Is it all about how you work the system?

These questions are not new. Nor do people shy away from trying to answer them. Many schools of thought have emerged that try to give a comprehensive look at law and judicial decision making. Karl Llewellyn was a influential thinker in the school known as “legal realism”.

What do we know about Llewellyn’s legal realism, or his jurisprudence more generally?

He’s NOT an originalist:

“The Document (Constitution) was framed to start a governmental experiment for an agricultural, sectional seaboard folk of some three millions. Yet it is supposed to control and describe our Constitution after a century and a half of of operation…” (3)

He doesn’t think rules really decide hard cases:

“It must be remembered that never, when the facts are in dispute, can rules decide the case. At best, they set the framework for decisions and the bound within which it is to move.” (8)

He think people mistakenly look for one “right” answer to a legal problem:

“Man, (even thought he learned square roots in high school) finds more than one right answer hard to conceive of.” (9)

What does a Constitution as an Institution mean?

“An institution is in first instance a set of ways of living and doing. It is not in first instance a matter of words or rules. The existence of an institutions lies first of all and last of all in the fact that people do behave in certain patterns a,b,c and do not behave in other conceivable patterns d to w.

A national constitution is a somewhat peculiar institution in that it involves in one phase or another the ways of a huge number of people…As an institution of major size, then, our working Constitution embraces the interlocking ways and attitudes of different groups and classes in the community…” 17-18

Wait what?

“But it will properly be urged that a constitution is not the governmental machine at large, but rather its fundamental framework…whatever one takes as being this working Constitution, he will find the edges of his chosen material not sharp, but penumbra-like….”

NOTE! Contrary to at least to my popular belief, penumbra does NOT mean umbrella! From MW:

penumbra:
: a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light
: a surrounding or adjoining region in which something exists in a lesser degree : fringe
: a body of rights held to be guaranteed by implication in a civil constitution

There is a lot more in this article which maybe will be revisited, but I mainly wanted to comment on the institutional/constitutional claims Llewellyn makes.

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Posted on October 26, 2011, in Uncategorized and tagged , , , , , . Bookmark the permalink. Leave a comment.

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