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Both legal realism and feminist legal theories address the question of judicial decision-
making. Compare the respective views of the two theories on judicial decision-making,
highlighting their similarities and differences.

Judicial decision-making finds itself at the heart of all legal systems across the world.
Throughout history we have seen a plethora of formats in which this decision-making
unravels and transpires in a legal context. One that has taken centre-stage in history is known
as Formalism which is seen as a simplistic outlook on the law and how matters are
determined. It applies the law as it is written without taking in many external factors. In more
modern times, this rule of thumb can appear somewhat outdated and so arose, the theories of
legal realism and feminist legal theory. This essay will explain in depth the implications these
theories have on Judicial decision-making whilst also helping to compare the two’s
similarities and differences on the matter. The use of Case law and legal theorists will help to
further understand how they sit in the everchanging web of law.

As the 20th century commenced theorists of law began to see the formalist approach of
Judicial decision-making (which had dominated most forms of law for a long time) as
outdated due to its process of applying an abstract set of legal principles in a highly
mechanical and narrow manner to cases. Legal realism emerged when it became clear to
members of the legal circle that there were several external factors outside the facts of the law
that also affected decision making by judges. Social, economic and political factors were
highly important to account for in the realist view because they were seen as factors that
could affect a Judge’s decision on a case. The realist approach erased the formalist idea that
all members of Judiciary are neutral beings with no form of opinion or bias on matters that
they would rule over. The United States were the pioneers of legal realism in the early 1900’s
and in the case of Lochner v New York (1905) a case that was decided in the Supreme court,
Justice Holmes stated that, “the Constitution is not a series of abstract propositions, but is a
living and breathing document, capable of adapting to changing social and economic
conditions."1 This set the foundations for the growth of the realist approach when
understanding how Judges make their decisions. As the law began to modernise, realism
pathed the way for it and there are now clear understandings of how the approach challenges
a formalist one. Realism allows for non-legal factors to be accounted for when analysing a
judge’s decision-making. It helps to explain that a judge may come to a different conclusion

1
Lochner v New York 198 U.S. 45 [1905]
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depending on factors that are completely uncorrelated to the law. Jerome Franck who was a
leading theorist of realism believed that simple factors such as if a Judge had eaten would
affect their rulings. There have been many studies on how mental fatigue and hunger can
affect a Judges critical decision making. One led by Shai Danziger in 2011 recorded Judges
two food breaks of the day which made for three decision-making sessions. The study found,
“that the percentage of favourable rulings drops gradually from ≈65% to nearly zero within
each decision session and returns abruptly to ≈65% after a break.” 2 Therefore, it should be
clear that legal realism has allowed for a much broader outlook on the crucial and surprising
factors that can determine Judicial decisions.

Another key theory to arise from the 20th century, albeit much later into the 1900’s, is the
Feminist legal theory. This theory of Judicial decision-making gained traction as Women
began to enter fields of work that had historically been male dominated. Crucially one of
these fields being the area of law. Until the 1980s, the law had been written and ruled over by
men which by the late 20th century caused distress throughout the legal hemisphere. Legal
formalism was rooted in the belief that the law is neutral however the feminist belief clearly
opposed this. "The law is not neutral, it is constructed by men, for men, and is deeply
implicated in a system of male dominance."3 Catherine Mackinnon stated in her 1989 book
on Feminism. This quote highlights the fact the law could not possible be neutral if it had
been composed by only one gender especially on matters that directly affected women.
Feminist legal theory aims to create equality in the law so that Judicial decision-making does
not favour a male outlook which it notoriously has in cases such as Bradwell v. Illinois
(1863)4 which was a case that prevented married women from having a state licence to
practice law. The law has come a long way since the 17th century but the first female
Supreme Court Judge in the U.K was only appointed in 1984. Since then, there has certainly
been some shift in the law to balance out the inequality. For example, in the case of Drury v
HMA (2001)5 where initially the verdict was that the defendant may have a defence by
‘provocation of sexual infidelity’ which is an ancient defence in Scotland coined by David
Hume. This defence clearly exemplified the bias towards men in law and in 2001, the
Scottish law was adjusted to the ‘ordinary person’ test. Feminist legal theory also focuses on
how men and women have different approaches to dealing with the law. Carol Gilligan, an
2
Extraneous factors in Judicial decisions [2011] available at:
https://www.pnas.org/doi/full/10.1073/pnas.1018033108
3
Toward a Feminist Theory of the State, Mackinnon. C [1989]
4
Bradwell v Illinois 83 U.S. (16 Wall.) I30 [1873]
5
Drury v HM Advocate 2001 SLT 1013
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American Psychologist identified how the two Genders have very different approaches to
dispute resolution which could prove critical in case decisions. She believed men hold an
ethic of justice which prioritises rules and rights and an application of principles (which is
how most legal systems are followed), whilst women have an ethic of care which is built off
human connection and views adding context to a matter very important. (a generally rejected
approach by formalists).6 Feminist legal theory requires equality in who makes the decisions
to then ensure there is equality in the output of legal matters.

Both Legal realism and Feminist legal theory have allowed for massive discussion and
changes in the way decision-making should be looked at. The two theories also share a lot of
similarities. The first obvious similarity between the two is that they clearly both reject the
Formalist theory which derives decision-making from the law only. Both theories see the
need for the law to consider societal changes that occur. They both see the law as a fluid
entity that should be allowed to shift as society does. "The law does not exist in a vacuum; it
is a reflection of the social and political forces that shape it." 7 They also share common
ground on the fact that the law should be progressive in some form and not ‘stuck in ancient
doctrines’ As seen in the Drury v HMA case, doctrines from the 18 th century or earlier can
still exist in modern law on matters that do not align with the general consensus of the 21 st
Century. Realism believes this can be tackled by viewing the law from a wider perspective by
applying factors that aren’t specifically to do with the law whilst feminist legal theory
believes equality and inclusion allows for a broader view of the law. Both outlooks create a
modernised approach to tackling Judicial decision-making. They share the idea that current
decision-making comes from. A biased perspective due to outdated and inflexible law-
making.

Despite some clear similarities between the two theories, they also battle some differences.
Legal reasoning believes the Judiciary to be a key factor in gaining the change needed
because theorists want there to be understanding and change in how the Judges operate when
making decisions and, Judges can be crucial in promoting the change needed in the law.
However, Theorists that support the feminist approach hold scepticism against the Judiciaries
because of how biased it has been on the gender basis historically. This separation was
clearly seen in the case of Roe v Wade (1973) 8 where the Justice who delivered the ruling

6
In a Different Voice: Psychological Theory and Women's Development, Gilligan. C [1982]
7
The Alchemy of Race and Rights: Diary of a Law Professor Williams. P [1991]
8
Roe v Wade 410 U.S. 113 [1973]
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decision (Harry Blackmun) gave a very liberal conclusion that the right of abortion should be
protected by the constitution in order to protect women whilst a feminist legal theorist would
see this outcome as too little a change for women to be protected. A feminist approach would
require more than just accepting protection of the rights were needed but to also further the
rights of women and adjust gender norms on the matters such as reproductive rights.
Essentially a realist approach aims to alter Judicial decision-making regarding society strictly
through the legal system whilst a feminist approach often involves change outside of just the
Judiciary.

In conclusion, the two theories mentioned in this essay hold a large footing in today’s legal
proceedings and determining how Judicial decisions are made. They hold many similarities
and could be seen as possible partners in a fight against ancient doctrines. Although they do
differ in some forms, they generally hold the same aims and hope for similar conclusions.