Law and Morality in The Perspective of Legal

Law and Morality in the Perspective of Legal Realism
Author(s): Harry W. Jones

Source: Columbia Law Review, Vol. 61, No. 5 (May, 1961), pp. 799-809
Published by: Columbia Law Review Association, Inc.
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LAW AND MORALITY IN THE PERSPECTIVE OF LEGAL
REALISM
HARRY W. JONES*
American legal realism is not a systematic philosophy of law but a way

of looking at legal rules and legal processes. It has nothing whatever in
common with realism in general philosophy; indeed, legal realism's identify-
ing characteristic is a sceptical temper towards generalizations. In his realist
manifesto of 1931,1 Karl Llewellyn expressed this point of departure as a
"distrust of traditional legal rules and concepts insofar as they purport to
describe what either courts or people are actually doing" and an accompanying
"distrust of the theory that traditional prescriptive rule-formulations are the
heavily operative factor in producing court decisions." Mr. Justice Holmes,
is, of course, the hero figure of the realist clan. "The prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean by the
law."2 "The life of the law has not been logic, it has been experience."3
"General propositions do not decide concrete cases."4
One might have thought, thirty years ago, that jurisprudents of the
natural law tradition would not be entirely unsympathetic with the realist
thesis that there is more to legal decision-making than the orderly application
of positive law generalizations. There are, to my mind, far closer affinities
between legal realism and natural law theory than exist between conventional
analytical jurisprudence and the natural law tradition.5 In legal realism, as
in natural law theory, critical intelligence is brought to bear on the positive
law; neither approach is content with formal analysis of positive law con-
cepts, and both are concerned more with justice in human affairs than with
the inner doctrinal consistency of the positive legal order. What happened,
however, is that an uncompromising attack was launched from the natural
* Cardozo Professor of Jurisprudence, Columbia University.

1. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 HARV.
L. REV. 1222, 1237 (1931). Llewellyn himself might say that the true realist manifesto
was Llewellyn, A Realist Jurisprudence-The Next Step, 30 COLUM. L. REV. 432 (1930).
Llewellyn's superb THE COMMON LAW TRADITION: DECIDING APPEALS (1960) is re-
viewed in triplicate elsewhere in this issue.
2. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897), in HOLMES,
COLLECTED LEGAL PAPERS 167, 173 (1920).
3. HOLMES, THE COMMON LAW 1 (1881).
4. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). An
intriguing interpretation of this Holmesian aphorism is contained in Frankfurter, Mr.
Justice Holmes and the Constitution, 41 HARV. L. REV. 121, 130 (1927).
5. For example, a case can be made that St. Thomas Aquinas's classic discussion of
the intellectual dangers involved in uncritical application of the conclusions of the
practical reason, I-II SUMMA THEOLOGICA Q. 94, art. 4, in 2 BASIC WRITINGS OF ST.
THOMAS AQUINAS (Pegis ed. 1945) is closed in spirit to the realist thesis than to much
professedly natural law writing.
800 COLUMBIA LAW REVIEW [Vol. 61: 799
law camp on the legal realists, and particularly on their hero figure, Justice
Holmes. Consider this natural law charge: "This much must be said for
Realism. If man is only an animal, Realism is correct, Holmes was correct,
Hitler is correct."6 That was guilt by association, with a vengeance, and
suggests the depth of natural law antagonism towards the realist inquiries.
If, as I believe, the natural law attack on legal realism was a mis-
identification of the enemy, how are we to account for it? There are several
possible explanations. For one thing, the realists were asking new and dif-
ferent questions, attempting a long overdue analysis of the decisional process,
without always making it entirely clear that this was what they were about.
There was underbrush to be cleared away, notably the stubborn remnants of
the old slot-machine theory of judicial decision, and the realist commitment
to this limited mission was such as to create a widespread impression that
the realists, as a group, were not at all interested in the problem of law and
morality.7 This concentration on the decisional process as it is in fact, and
consequent underplaying of the legal ought to be, was bound to draw fire
from the members of a philosophical tradition that had focussed its attention
for seven hundred years on justice and righteousness in law. Further, the
realist thesis included an all-out attack on what Holmes had called "the
fallacy of logical form"8 in law, that is, on the adequacy of the syllogism as
an explanation of the process of judicial decision. The historic association of
Scholastic thought, including Thomist natural law, with the method of formal
logic is such that a sharp dissent from the natural law quarter was perhaps
inevitable.
There are indications, in recent natural law writings9 and in the oc-
casional pieces of younger Thomist legal scholars, that legal realism now
is regarded with far less hostility in natural law circles than was the case
thirty, or even twenty, years ago, but it may still be the weight of opinion
there that only a scholar of split personality can be, at once, a natural lawyer
and a legal realist. This is a family disagreement within the natural law
camp, but it suggests a question for those of us who, by philosophical or
religious conviction, are outside the Thomist natural law tradition but share
6. Lucey, Natural Law and Legal Realism, 30 GEO. L.J. 493, 531 (1942). See
also the highly unfavorable appraisals in LEBUFFE & HAYES, THE AMERICAN PHI-
LOSOPHY OF LAW 179-85 (5th ed. 1953) ; Kennedy, Realism, What Next?, 7 FORDHAM
L. REV. 203 (1938).
7. The natural law jurisprudents were not alone in this impression; it was shared
by Pound, Morris Cohen, and others. Pound, The Call for a Realist Jurisprudence, 44
HARV. L. REV. 697 (1931); Cohen, A Critical Sketch of Legal Philosophy in America,
in 2 LAW, A CENTURY OF PROGRESS, 1835-1935, at 266 (1937). The best analysis of
legal realism's affirmative implications for a theory of justice is GARLAN, LEGAL
REALISM AND JUSTICE (1941).
8. Holmes, supra note 2, at 468, COLLECTED LEGAL PAPERS at 184.
9. The most recent American natural law treatise, THE ELEMENTS OF LAW (1957),
by Thomas E. Davitt, S.J., makes effective use of realist insights at many points, see,
e.g., id. at 57-62. And the realist ingredient is basic in Dean O'Meara's admirable
Natutral Law and Everyday Law, 5 NATURAL L.F. 83 (1960).
1961] LEGAL REALISM 801
its view that moral evaluation is the great task of legal philosophy. The
question is this: Does the realist perspective obscure or sharpen the moral
dimension of law? Is moral evaluation of the positive legal order less search-
ing and less effective when undertaken in a sceptical spirit towards "traditional
prescriptive rule-formulations" as the controlling factor in legal decision-
making?
Holmes himself is the best case in point. Is his famous address, The
Path of the Law, evidence of a split jurisprudential personality? For this
essay, which sets out many of the seed ideas of American legal realism, con-
cludes with words of high moral affirmation:
The remoter and more general aspects of the law are those which
give it universal interest. It is through them that you not only be-
come a great master in your calling, but connect your subject with
the universe and catch an echo of the infinite, a glimpse of its un-
fathomable process, a hint of the universal law.10
Is this "campaign oratory," or can it be that legal realism has something

unique to offer on the age-old jurisprudential problem of the role of moral
ideas in the functioning of law in society?
The ethical theory to be drawn from legal realism is, I suggest, that the
moral dimension of law is to be sought not in rules and principles, or the
higher law appraisal of rules and principles, but in the process of responsible
decision, which pervades the whole of law in life. Is this a rewarding, even a
respectable, approach to the enduring problem of morality in law? The best
answer, I think, is that the moral insights suggested by the realist analysis
have striking parallels in the literature of contemporary theology. There are
sentences in Paul Tillich's Love, Power and Justice that might, if read out of
context, be taken for quotations from one of the more advanced of the Ameri-
can legal realists:
Justice is expressed in principles and laws none of which can ever

reach the uniqueness of the concrete situation. Every decision which
is based on the abstract formulation of justice alone is essentially
and inescapably unjust. Justice can be reached only if both the de-
mand of the universal law and the demand of the particular situation
are accepted and made effective for the concrete situation.'1
It is, in fact, on the ground just stated that much present day Protestant
theology is most critical of the postulates and methods of the natural law
tradition. Thus Reinhold Niebuhr criticizes the "rational 'intuitions'" of
natural law theory as "much too rigid and neat to give adequate moral
guidance to men in the unique occasions of history'"12 and asserts that the
religious tradition to which he belongs "has too strong a sense of the in-

11. LOVE, POWER, AND JUSTICE: ONTOLOGICAL ANALYSES AND ETHICAL APPLICA-
TIONS 15 (1954).
12. NIEBUHR, THE SELF AND THE DRAMAS OF HISTORY 102 (1955).
dividual occasion, and the uniqueness of the individual who faces the oc-
casion, to trust in general rules."''3 The analogy from theology to law sug-
gests, at least, that legal realism, with its emphasis on the tensions that exist
in law administration between the demands of the prescriptive rule-formula-
tion and the appeal of the concrete problem situation, is not the irrational
philosophy that it seems to those of its critics who would find all the answers
to law's moral problems in higher law precepts, or in the general concepts
of analytical jurisprudence, or, for that matter, in any body of abstract moral
or political principles.
At the risk of belaboring the theological analogy, I summon one more
witness in support of the proposition that the interplay of law and conscience
is better seen in the context of the decisional process than in disputations
about the "morality" or "policy" of general legal rules and principles. Martin
Buber, the great Jewish existentialist theologian, has a paragraph in his
Between Man and Man'4 that states the task of decision more precisely and
forcefully than anything I know in the literature of jurisprudence:
Of course there are all sorts of similarities in different situations;
one can construct types of situations, one can always find to what
section the particular situation belongs, and draw what is appropriate
from the hoard of established maxims and habits, apply the ap-
propriate maxim, bring into operation the appropriate habit. But
what is untypical in the particular situation remains unnoticed and
unanswered.... In spite of all similarities every living situation has,
like a new-born child, a new face, that has never been before and will
never come again. It demands nothing of what is past. It demands
presence, responsibility; it demands you.
Let us then survey, as briefly as is manageable, how choice and decision are
inevitable in the life of the law, inescapable in the life of the lawyer, what-
ever his role in the calling. This, unavoidably, requires an analysis of what
lawyers do in their manifold tasks as judges, prosecutors, advocates, and
counsellors.
II
"Reason is but choosing." These key words in Milton's Areopagitica

have particular force in relation to those decisional situations in which the
judge or the practicing lawyer finds little guidance in established legal
doctrine and yet must choose between alternative courses of action that will
affect profoundly the lives of other people. Does someone ask, at this point,
whether that area of inescapable choice is not closely bounded in a mature
legal system? Does a judge really decide major questions in a government
that is "of laws and not of men ?" Is it not more accurate to say that the
authoritative rules of law, for which the judge is spokesman, decide his prob-
lems for him ?
13. 1 NIEBUHR, THE NATURE AND DESTINY OF MAN 60 (1955).

14. Pp. 113-14 (Beacon ed. 1955).
Legal realism's answer is that the syllogistic form characteristic of judicial

opinions operates, in many instances, to obscure policy decisions in a wrap-
ping of formal and essentially secondary explanations. A statement of Holmes
is again the classic one:
Behind the logical form lies a judgment as to the relative worth and
importance of competing legislative grounds, often an inarticulate
and unconscious judgment, it is true, and yet the very root and
nerve of the whole proceeding. You can give any conclusion a logical
form. You always can imply a condition in a contract. But why do
you imply it?1-5
Every lawyer of competence knows this; he is a legal realist in his practice,

however passionately he may disapprove of legal realism as an explicit legal
philosophy.
To limit the range of possible disagreement, I will not take an extreme

realist position in this brief but necessary analysis of the common law judicial
process. I am not saying that the judge is undirected, uncontrolled by the
precedents and statutes, in all the cases before him, or even in most of them.
Many, perhaps most, of the controversies that reach the courts can be decided
without much more than a reference to existing rules. Some judges and law-
yers of experience will say that at least three-fourths of the cases that come
to court leave the judge no room, no leeway, for alternative decision.'6 I
would set the figure far lower, but that is not relevant to our present inquiry.
On any account of the judicial process, there is a substantial incidence of
cases that can be decided, and justified with all traditional common law
proprieties, either way. Whatever the incidence may be-a fifth, a fourth, a
third-it is indisputable that the work of the judge involves the inescapability
of choice and so of responsibility for externally uncontrolled decisions.
Great judges have been peculiarly sensitive to the demand of decisional
responsibility in the hard or unprovided-for case. Cardozo, Holmes's only
equal as an American common law judge, had this to say:
It is when the colors do not match, when the references in the index
fail, when there is no decisive precedent, that the serious business of
the judge begins.17
Is it not manifest that the area of the judge's serious business is the area
most worth studying to reveal the moral dimension of judicial action? If
the judge, whatever his metaphysical views, takes his moral convictions
seriously, they will be relevant, above all, to his serious business.

16. Cardozo's estimate is surprising. "Nine tenths, perhaps more, of the cases
that come before a court are predetermined-predetermined in the sense that they are
predestined-their fate preestablished by inevitable laws that follow them from birth
to death." THE GROWTH OF THE LAW 60 (1924). But, to Cardozo, the unpredetermined
tenth make up the judge's "serious business." THE NATURE OF THE JUDICIAL PROCESS
21 (1921).
17. Ibid.
If judicial choice is inevitable even in run-of-the-mill situations, what

must the burden of decision be in the great cases, in which the deciding
judges have even less to work with, less to control their choice, in the pre-
existing legal doctrine? What of Brown v. Board of Education,18 where the
issue was the constitutionality of racial segregation in the public schools
of an entire region of the United States? Consider what the nine participating
Justices had to draw on by way of doctrinal authority: one constitutional
clause, so short as to approach the cryptic, "Nor shall any State deny to any
person within its jurisdiction the equal protection of the laws." The prece-
dents? A sequence of inconclusive, manifestly distinguishable, past decisions.
Can any theory of fixed principles or higher law precepts illumine the inner
struggle, the turmoil of soul, through which a judge must pass in deciding
a case of this magnitude? Yet it must be decided, one way or the other. The
judge, unlike the pure social scientist, can not withhold his action until all
the returns are in. His duty to support the Constitution includes the obliga-
tion to give concreteness to the great guide lines of American liberty-"due
process of law," "free exercise of religion," "the equal protection of the laws"
-and there is no hiding place from that political and moral obligation.
The natural law tradition, at least as usually understood, has the effect
of urging the judge to turn his thought from distracting social details towards
the universally valid precept. It is true that a precept of great moral power
was at stake in Brown v. Board of Education, the moral and religious prin-
ciple that all men, as sons of God, are of equal worth and dignity. But the
choice the nine Justices had to make, uncontrolled and largely unguided by
technical legal doctrine, concerned the concretization of that moral precept
in a context of potential violence and disaffection and in a tangled, endlessly
confused cultural situation.19 In a case like this, the resources brought to
bear must be more than those of reason alone. Steadfastness of spirit20 and,
at the same time, a keen awareness of personal unworthiness for final moral
evaluations21 are attributes of judicial greatness fully as important as the
18. 347 U.S. 483 (1954).

19. This is particularly true of the second decision, Brown v. Board of Educ., 349
U.S. 294 (1955). The critical literature on these cases is too vast to permit even
sample citation.
20. Is there any reason for jurisprudence to suppress or underplay the known fact
that moral courage and integrity are as important as intelligence as qualifications for
judicial office? This is not to abandon one's faith in law's rationality but to insist that
intellect and character are factors of equal significance in legal decision making.
Marshall, Holmes, or Cardozo could, I think, have written the following:
Certainly the relation of faith is no book of rules which can be looked up to
discover what is to be done now, in this very hour. . . . I give the word of my
answer by accomplishing among the actions possible that which seems to my
devoted insight to be the right one. With my choice and decision and action-
committing or omitting, acting or persevering-I answer the word, however
inadequately, yet properly; I answer for my hour.
BUBER, BETWEEN MAN AND MAN 68 (Beacon ed. 1955).
21. Holmes's familiar "can't help" formulation is a profound expression of this
awareness. "When I say that a thing is true, I mean that I can't help believing it."
Holmes, Ideals and Doubts, 10 ILL. L. REV. 1, 2 (1915), in COLLECTED LEGAL PAPERS
attribute of reason. Our institutions demand a great deal of the more or less
ordinary human beings to whom judicial power is entrusted. Can the judge be
better armed for the task of responsible decision than when he possesses a
sense of divine judgment upon all human institutions and all human history?
American legal thought has focussed too much on judges, perhaps be-
cause the judge, to us as to Aristotle, is "living justice."22 Let us consider the
far less frequently discussed matter of the moral responsibility of the prac-
ticing lawyer for the causes to which he gives his training and his talents.23
The lawyer, whether in court or as a counsellor in his office, is a professional
partisan. By the nature of his calling, he works not in his own cause but in
the causes of others. Does he carry personal moral responsibility for the cases
he accepts, the enterprises with which he becomes identified? The conventional
answer is that a lawyer is a spokesman by profession and that it is unfair to
identify him personally with the clients and causes he serves. This is usually
justified in terms of an appeal to professional tradition. That tradition is
expressed, for American lawyers, by the Canons of Ethics of the American
Bar Association. Do these Canons make the criteria for the provision or with-
holding of professional service so clear that the individual lawyer has no moral
leeway, and hence no responsibility, in the acceptance or rejection of profes-
sional employment?
We turn to Canon 30:
The lawyer must decline to conduct a civil cause or to make a

defense when convinced that it is intended merely to harass or to
injure the other party or to work oppression or wrong. But other-
wise it is his right, and, having accepted retainer, it becomes his
duty to insist upon the judgment of the Court as to the legal merits
of his client's claim....24
Thus far, we have the conventional explanation: the lawyer has a professional
right25 to take any case offered to him, excepting only the quite infrequent
303, 304. Holmes's life refutes the familiar argument that a man is not capable of
effective social action unless he is convinced that the moral principles to which he
subscribes are absolute and final ones. A. T. Mollegen has addressed himself to this
issue in terms of striking juridical relevance:
When Luther said that we must sin boldly, he meant that we must live with
courageous responsibility yet not having the justification of the works of the
law, that is, without being able to know that we are right. This courageous
living will include the use of the coercive power of the state . if there seems
to us to be no alternative in the doing of the right as we see it.
Ethics of Protestantism, in PATTERNS OF ETHICS IN AMERICA TODAY 53, 58 (Johnson
ed. 1960).
22. NICOMACHEAN ETHICS, V. iv, 1132, 21-32, in MCKEON, INTRODUCTION TO
ARISTOTLE 406 (1947); commented on in DEL VECCHIO, JUSTICE 61 (1952).
23. Llewellyn, as so often, was here first, too. THE BRAMBLE BUSH 148-49 (2d
ed. 195 1).
24. Emphasis added.
25. Canon 5 uses the same "right" formulation. "It is the right of the lawyer to
undertake the defense of a person accused of crime, regardless of his personal opinion
as to the guilt of the accused; otherwise innocent persons, victims only of suspicious
circumstances, might be denied proper defense." (Emphasis added.) An English
barrister might express the lawyer's situation in terms of "duty" rather than of right.
case of pure harassment, oppression, or wrong, and it would seem to follow

that he carries no personal responsibility in exercising that right. But we
read on to Canon 31, which begins as follows:
No lawyer is obliged to act either as adviser or advocate for

every person who may wish to become his client. He has the right
to decline employment.26
What now of the lawyer's moral responsibility for his career decisions?
Our lawyer, according to the traditional rules of the game, has a right to take
the usual case offered to him, but, at the same time, he also has a right to
reject it. If he is a lawyer of uncommon skill and resourcefulness, more cases
will be offered than he can handle. If he is of limited talent or reputation,
self-interest will exert pressures on him to accept every employment offered.
The professional tradition merely blocks out an area of choice, a right to
accept and a right to decline. Thus, at the heart of the lawyer's functioning, we
see a power to choose and, with that right of choice, responsibility for choices
made. Here, again, is professional decision seen in its inescapable moral
dimension.
The thoughtful lawyer seeks always to discern a morally consistent pat-
tern, a justifying value, in the work to which he is giving his life. He seeks
this authentication of his professional existence not in one case but in the
professional work of a lifetime. Have his choices, in the acceptance and rejec-
tion of offered professional employment, contributed in some way to greater
justice between man and man, to the creation of a fairer and more productive
economic system, to higher standards in commercial life or in family life or
in the administration of the criminal law? Can any body of ethical principles
symbolize this deeply felt need for professional authentication with the clarity
and power of the religious concept of the "calling" or "vocation ?"27
So far, I have given only a few illustrations of the inevitability of re-
sponsible choice in the life of the law. They are illustrations only of a
decisional process seen everywhere. No matter where we turn in an analysis
of lawyers at work, we find power to choose and accompanying responsibility
for choices made. Lawyers, more than any other group in our society, are
the architects and engineers of our economic system. The structures of Ameri-
can economic development have had their origin, times without number, in
major law offices. The counsellor, the office lawyer, is fully as important as
the advocate in the contemporary profession and far less controlled in his
choices by the rules of law. A great office lawyer uses legal sources as an
artist uses pigments, to accomplish a design. He can not evade moral re-
26. Emphasis added.

27. The origins and development of the idea of the "calling" or "vocation" are
discussed in DILLENBERGER & WELCH, PROTESTANT CHRISTIANITY 233-39 (1954);
RAMSEY, BASIC CHRISTIAN ETHICS 153-90 (1954) ; TAWNEY, RELIGION AND THE RISE
OF CAPITALISM 199-204 (Penguin ed. 1947); WEBER, THE PROTESTANT ETHIC AND THE
SPIRIT OF CAPITALISM 79-92 (Scribner ed. 1958).
sponsibility for the worth of that design. In the words of the 1958 report of
the Joint Conference on Professional Responsibility:
The reasons that justify and even require partisan advocacy in

the trial of a cause do not grant any license to the lawyer to par-
ticipate as legal adviser in a line of conduct that is immoral, unfair,
or of doubtful legality. In saving himself from this unworthy involve-
ment, the lawyer cannot be guided solely by an unreflective inner
sense of good faith; he must be at pains to preserve a sufficient de-
tachment from his client's interests so that he remains capable of a
sound and objective appraisal of the propriety of what his client
proposes to do.28
Reason and learning are not enough; in his office, as in court, the lawyer must
"possess the resolution necessary to carry into effect what his intellect tells
him ought to be done."29
Or consider the decisions, unpublicized and quite uncontrolled by strictly
"legal" doctrine, that are made every day in the administration of criminal
justice. The penal statutes tell the prosecuting attorney when he is em-
powered to invoke the sanctions of the criminal law. But he can not institute
criminal proceedings in every case in which prosecution is technically ap-
propriate, or the law would operate most oppressively and the courts soon
be swamped beyond rescue. I have some existential knowledge of the prose-
cutor's task from two years spent in a law enforcement post30 where excellently
prepared potential criminal cases poured in from field offices by the dozens.
It was impossible, for reasons of court congestion and limited enforcement
personnel, to institute fullfledged criminal proceedings in more than one of
ten possible criminal cases. Choice was inescapable, one case for criminal in-
formation or grand jury indictment, the other nine for such milder sanctions
as treble damages, suspension order or mere formal reprimand. I realized
then the soul-searching called for in devising moral criteria for the sifting
of potential criminal cases. The exercise of the prosecutor's discretion, I have
believed since, is even more important than the content of a penal code as
a force in the administration of criminal justice.
Again, once the criminal defendant has been found guilty, leeway and
responsibility characterize the duty of the sentencing judge. The statutory
precept, more likely than not, leaves a wide range of permissible treatment of
the offender. "Punishable by fine not to exceed $10,000 or by imprisonment
from one to five years, or by both such fine and such imprisonment" is a not
untypical sentencing provision of our day. The law, thought of as rule, merely
fixes the outside bounds for the act of judicial choice. On what other sources
shall the sentencing judge draw as he exercises the awful power conferred on
28. 44 A.B.A.J. 1159, 1161 (1958). The draftsman for the Conference was Pro-
fessor Lon L. Fuller of the Harvard Law School.
29. Id. at 1218.
30. Director of Food Enforcement, Office of Price Administration, Washington, D.C.,
1942-1943.
him over the life and freedom of another man?

makes his inescapable moral evaluation of the offense and the offender, he
grasps the full meaning of the chastening injunction, "Judge not, that ye be
not judged."'31
III
In its approach to the law-morality problem, legal realism is closer, in

one important sense, to the natural law position than to the position of con-
ventional analytical jurisprudence. If the realist analysis is right, the day to
day work of judges, law officers, and practicing lawyers involves processes far
less orderly and far more intricate than the application of positive law gen-
eralizations to fact-situations falling more or less neatly within them. In lee-
way situations, the positive law is is not a command but, at most, an authoriza-
tion of alternative decisions. The choice between alternatives, the selection of
the path to be pursued, can not but be influenced by the decision-maker's
ought to be. Legal realism, with its emphasis on the inevitability of choice
and discretion in the life of the law, casts its vote-though for very different
reasons-with the tradition of natural law, and against Austin and the posi-
tivists, on the old issue of the compete analytical separateness of the law that
is from the law that ought to be.32
The moral appraisal of law, however, is not always or usually to be
accomplished by measuring positive law general propositions against other
general propositions, or principles, of asserted higher validity. Higher law
critiques of formal legal doctrine do not take us very far towards an under-
standing of the problematic of legal decision. "Do good and avoid evil," yes,
but what of the ethical relativities of an imperfect society,33 and how do
31. Matthew 7:1 (King James).

32. The legal realist position on the Is-Ought relation has been widely misunder-
stood. In Some Realism About Realism, 44 HARV. L. REV. 1222, 1236 (1931), Llewellyn
listed, as one of the realist points of departure, "the temporary divorce of Is and Ought
for purposes of study." This did not line him up with the Austinians: (1) because the
divorce was to be only temporary-"during the investigation of the facts"; and (2) be-
cause the analytical separation that Llewellyn chiefly wished to preserve was less that
between the doctrinal Is of analytical jurisprudence and the ethical Ought than it was
that between the Is of law in action (what courts are doing in fact) and the normative
Ought of the law in the books.
To say, as I have, that legal realism stresses the extent to which the moral ought
to be influences practical judicial decision-making, is not, of course, to side with
Professor Fuller and against Professor Nagel on the issue of their recent exchange,
Fuller, Human Purpose and Natural Law, 3 NATURAL L.F. 68 (1958), Nagel, On The
Fusion of Fact and Value: A Reply to Professor Fuller, id. at 77; Fuller, A Rejoinder
to Professor Nagel, id. at 83. The distinction between fact and value is, I think,
inescapable and basic to clarity of analysis in law as elsewhere. It is simply that the
dynamics of the judicial process are such that the ethical values of the decision maker
are material sources of law.
33. "The relativity of all moral ideals cannot absolve us of the necessity and duty
of choosing between relative values.... NIEBUHR, AN INTERPRETATION OF CHRISTIAN
ETHICS 120 (Living Age ed. 1956). And, "questions of relative good and evil" are
"the very stuff of the political order." Id. at 131. One is reminded of Hand, "For the
law is no more than the formal expression of that tolerable compromise that we call
justice, without which the rule of the tooth and claw must prevail." THE SPIRIT OF
LIBERTY 87 (1952).
fallible human decision-makers determine what is the better and what the
worse in concrete human situations? "Act in accordance with reason," yes,
but man's reason is no superhuman faculty, and just decision requires both
an intellect that perceives the good and a will that perseveres resolutely in
the good course intellectually perceived. When we enter the realm of the
judge's "serious business," the prosecutor's discretion, the practicing lawyer's
choices, we need a moral theory fully as demanding as the older natural law
tradition but more directly addressed to the points of strain at which moral
insights are most needed. In realist perspective, choice, decision, and re-
sponsibility for decision are central elements for a philosophy of law.

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Law and Morality in the Perspective of Legal Realism

Author(s): Harry W. Jones

American legal realism is not a systematic philosophy of law but a way

* Cardozo Professor of Jurisprudence, Columbia University.

Is this "campaign oratory," or can it be that legal realism has something

Justice is expressed in principles and laws none of which can ever

10. Holmes, supra note 2, at 478, COLLECTED LEGAL PAPERS at 202.

"Reason is but choosing." These key words in Milton's Areopagitica

13. 1 NIEBUHR, THE NATURE AND DESTINY OF MAN 60 (1955).

Legal realism's answer is that the syllogistic form characteristic of judicial

Every lawyer of competence knows this; he is a legal realist in his practice,

To limit the range of possible disagreement, I will not take an extreme

15. Holmes, supra note 2, at 466, COLLECTED LEGAL PAPERS at 181.

If judicial choice is inevitable even in run-of-the-mill situations, what

18. 347 U.S. 483 (1954).

The lawyer must decline to conduct a civil cause or to make a

case of pure harassment, oppression, or wrong, and it would seem to follow

No lawyer is obliged to act either as adviser or advocate for

26. Emphasis added.

The reasons that justify and even require partisan advocacy in

him over the life and freedom of another man?

In its approach to the law-morality problem, legal realism is closer, in

31. Matthew 7:1 (King James).

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