UNDERSTANDING OF KARL LELLEWELLYN’S

AMERICAN LEGAL REALSIM

DATE: 30th May, 2023

SUBMITTED TO:
Associate Prof Manish P
Advance Jurisprudence

SUBMITTED BY:
Raman Acharya ( M1036)
LLM 1st Semester
National Law College

Tribhuvan University
 Abstract
This paper examines the jurisprudential thought of Karl Llewellyn, a prominent  legal
scholar  and figurehead of American Legal Realism. It outlines Llewellyn's key ideas on
subjects such as the limitations of  formal legal rules, the role of judge, and the
importance of interdisciplinary and empirical research in Legal Fraternity.
Llewellyn's realist philosophy emphasized empiricism, pragmatism, and prominence on
understanding law "in action" rather than just "in books." For Llewellyn, legal
realism  represented a new mindset and technique for studying and practicing law. It
involved wrestling with the complex social, economic, and political factors that actually
shape legal outcomes.

While Llewellyn's writings made important contributions to legal scholarship, they have
also been critiqued for their dense style, lack of attention to broader questions of
philosophy and justice, and failure to account for issues of inequity in the legal system.
However, Llewellyn's realist approach continues to have significant influence in shaping
contemporary legal thought and scholarship. His circumstantial, practical and
interdisciplinarity has shaped an understanding of law as a dynamic and contextual
phenomenon rather than a fixed set of rules.

In nutshell this paper examines Karl Llewellyn's jurisprudential thought as a central

figure of American Legal Realism. It outlines his core ideas and philosophical approach,
evaluates criticisms of his work, and assesses his legacy and continuing influence on
legal scholarship today.
Introduction to Legal Realism
Legal Realism, also known as ‘Analytical Positivism1’ is a response to the then
prevalent notions of law presented by the legal formalists, which focused on what may be
termed as the untrue claims of formalists. Legal Realism is a theory of adjudication and
of law. It is primarily concerned with judicial process by which law is interpreted,
declared, expanded, overruled and at times enacted by judges. An opposition to Realism,
formalism is a theory which believes that law should be interpreted and applied as it is
written. It says that law should always be kept above politics and personal judgments
hence believes that judges are there merely to read out what is written in law and not to
give their opinions, because if they do give their opinions, it would be biased with
personal likings, beliefs, etc.

American Legal Realism (ALR here after) has its origins in the US law schools and was
a dominant discourse in 1920s and 1930s 2. In the beginning of 20th century, cases were
flooded in the courts which led to appointments of various new judges and new decisions
alongside. Scholars including Felix Cohen, Herman Oliphant, Hessel Yntema, Jerome
Frank, Karl Llewellyn, Max Radin, Oliver Wendell Holmes, Underhill Moore, and
Walter Wheeler Cook have written extensively in regards to Realism. Realists themselves
argued that Realism is merely an intellectual movement and not a school of thought or set
of theories of law3. Legal Realism was said to be the most important indigenous
jurisprudential movement in the United States during the twentieth century 4. It had started
to show its impact in the legal education, law schools, law reforms, etc. in the USA. They
argued that legal formalism’s focus on conceptualism, abstraction, and deduction
from legal rules failed to account for the complexity of actual judicial decision making.

1
Holmes Wendell Oliver Jr, The Common Law, 1963, 190.
2
Bingham Joseph, What is the Law?, 11 Mich. L. Rev., 1912, 109.
3
Ratnapala Suri, Jurisprudence, Cambridge University Press, 2009, 10.
4
Leiter Brian, American Legal Realism in Golding and Edmundson, Blackwell Guide to the Philosophy of
Law and Legal Theory, 2005, p.58.
For the American Realists, the major focus was the way the cases were decided by the
judges in real life which was against the theories of formalists. The realists often were
confronted by the fact that the judges have actually suppressed or gave a different color
to the established rules of law in deciding the cases. Law in the statutes was quite
different from what was given by the judges in the courts. There were many factors
which influenced the judges in deciding a case in a way it was decided. This was
understood to be 'law in action' as opposed to 'law in books'5.

Introduction to Karl Llewellyn

Karl Nickerson Llewellyn (1893 to 1962) was a prominent legal scholar professor of law
at Columbia University and is best known for his work on "American Legal Realism."
Born in American- German family, Llewellyn studied law at Yale University and went on
to become a professor of law at the University of Chicago. His work on Legal Realism
helped to shape the way that legal scholars and practitioners approached the law in the
United States. Though, he never officially enlisted during WW I, He fought with the
Seventy-eighth Prussian Infantry on the western front, earning the Iron Cross for his
service.6 Llewellyn, the apprentice of William Graham 7 (1840-1910) was one of the
founders of the science of sociology in the United States significantly contributed in
Karl’s idea of a social institution that is greatly influenced by the surrounding culture.

Later in 1915, Llewellyn entered Yale Law School. He served as editor in chief of
the Yale Law Journal for three years. Beginning in 1920, Llewellyn worked in the legal
department of the National City Bank, and then at the law firm of Shearman and Sterling.
Armed with superior practical and theoretical legal experience, Llewellyn now possessed
the necessary tools to teach commercial law which later would become his specialty.
From 1924 till 1951 he served in Columbia University.

5
Penner J E & Mellisaris, E, McCoubrey and White's Textbook on Jurisprudence, 4th ed., 2008, p.123.
6
Llewellyn Karl | Encyclopedia.com,” 2023, Available at
https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/llewellyn
karlnickerson. Accessed on 4th May 2023
7
William Graham Sumner (1840-1910) was one of the founders of the science of sociology in the United
States professor at Yale
Llewellyn’s Realist Version
Llewellyn outlined his vision of Realism in his famous 1930 article “A Realistic
Jurisprudence – The Next Step.”8 He argued that Realism was not a coherent set of
doctrines but rather “an intangible thing, it denotes ways of feeling and ways of seeing
legal situations."9 At its core, Realism for Llewellyn was about grappling with “law in
action” rather than the conceptual “law in books.”10 Realists sought to understand how
law actually impacts people and society.

The realist project was deeply empirical in nature. Realists believed that the study of law
must be based on observing what the courts actually do, not just what the rules and
concepts say they should do.11 Llewellyn argued that Realism “means a tough-minded
attention to detail...It means appearance not Opinions...life not logic.”12 The realists
studied factors like the personal backgrounds of judges, sociological influences, and
the strategic interactions of lawyers to understand judicial decisions.

For Llewellyn, Realism also meant a focus on the normative dimension of how law does
and should impact society. He believed the realists were engaged in “the effort at policy
evaluation, at value clarification, at improvement of the means and ends of law.” 13
Realists did not believe law was value-neutral or that legal reasoning alone could resolve
policy questions. Instead, they thought policy judgments were inextricably part of
juridical decision making. The realist project was in part about making these policy
judgments more transparent and bringing them into the realm of democratic debate.
Llewellyn’s Realism can be summarized into :
 Realism is not a coherent doctrine but a methodology. Llewellyn described
Realism as "ways of feeling" and "ways of seeing" rather than a defined set of

8
Llewellyn Karl (1930). A Realistic Jurisprudence -- The Next Step. Columbia Law Review, 30(4), 431-
465, p.432 available at https://doi.org/10.2307/1114548
9
Id. at 432.
10
Id. at 447.
11
Leiter, supra note 4.
12
Llewellyn, supra note 8, at 448.
13
Llewellyn, supra note 8, at 449.
 propositions. The realist project was about a new mindset towards law that was
empirical, critical, and policy-focused.
 Realism means studying the law in action, not just the law in books. Realists
focused on how law functions in reality, not just legal rules and concepts. This
meant an empirical study of judicial decisions, administrative rulings, business
practices, and sociological influences. Realists wanted to understand law from the
"bottom up" rather than deducing it from abstract principles.
 Realism requires evaluating law in terms of social policy. Realists believed that
value judgments were inescapable in law. The realist project sought to make these
policy judgments more transparent and open them up for public discussion and
democratic debate. This was a normative project, not just a descriptive one.
 Realism aims at legal reform and improving law. Llewellyn believed Realism was
meant to be an "engine for law's progress." By exposing the actual factors that
influence law and critiquing the policy goals behind current rules, Realism could
help drive law reform. Realism was meant to be a progressive force to create a
more just and socially-beneficial legal system.
 Realism represents a new legal "technique." Llewellyn viewed Realism as a
technique for practicing law, deciding cases as a judge, and studying law as a
scholar. Its attributes were: i) facts over concepts; ii) social
advantage over technical logic; iii) judgment over formulas; and iv) justice over
artificial reasoning. This technique could shape a more flexible and socially-
grounded approach to law.

Understanding Karl Llewellyn's Jurisprudence

Llewellyn the focal point of legal research should be shifted from the study of rules to the
observance of the real behavior of the law officials, particularly the judges. "What these
officials do about disputes is, to my mind, the law itself."14 This last statement, however,
was withdrawn by Llewellyn in 1950. he has placed a somewhat greater stress on the
importance of normative generalization in law, pointing out that the rule part of the law is

14
Llewellyn Karl, The Bramble Bush New York, 1930, 3. Also See, Llewellyn, Jurisprudence: The Next
Step
"one hugely developed part" of the institution, but not the whole of it. 15 in the realization
that it did not take proper account of the standards and norms designed to shape and
control official conduct in an endeavor to prevent arbitrary and oppressive actions. Law,
for Llewellyn, was always a means to social ends: the law was ‘an engine’ which had to
be examined in terms of purpose and effect.16

Law as Pretty Play Things

Llewellyn argues that legal formalism, which emphasizes strict adherence to legal rules
and precedent, fails to capture the complexity of real-world legal problems. Instead, he
advocates for a more flexible and pragmatic approach to the law. This view is expressed
throughout the book, where Llewellyn critiques the notion that the law can be reduced to
a set of fixed rules. “[R]ules . . . are important so far as they help you see or predict
what judges will do or so far as they help you get judges to do something. That is their
importance. That is all their importance, except as pretty playthings.”17 For this he is seen
as an exemplary “rule skeptic.18” But his “pretty playthings” had taken the detour with his
latter academic writings.

On the distinction between "rule skepticism" and "rule skepticism-skepticism": Llewellyn

writes, "It is one thing to say, with some plausibility, that in the average case rules do not
'work,' and another thing to say that no rules can work. The first I shall call 'rule
skepticism'; the second I shall call 'rule skepticism-skepticism' 19 Further In 1930, in “A
Realistic Jurisprudence – The Next Step,” he first introduced the idea of a “paper rule,”
and distinguished paper rules from the “real rules” that he believed described actual
judicial decision-making.

Although Llewellyn acknowledged that the paper rules were “a factor” in determining the
real rules that genuinely explained what judges were really doing, that factor had a

15
Llewellyn Karl, The Bramble Bush, rev. ed. (New York, 1951), Foreword, 8-9.
16
Cruzon LB Jurisprudence Lecture Note Cavendish Publishing Limited, 2nd ed, 191
17
Llewellyn Karl, The Bramble Bush: On Our Law and Its Study (1930),
18
Frank divided American Realist into Rule Skeptic and Fact Skeptic.
19
Llewellyn Karl, The Theory of Rules,” University of Chicago Press, p.12-16
Available at https://press.uchicago.edu/ucp/books/book/chicago/T/bo11167337.html.
decidedly subordinate role. It was “rare” for the paper rules accurately to describe judicial
behavior, he wrote, and while paper rules sometimes influenced decisions, more often
they were either of no effect or were something to which judges merely paid lip service.

On the limitations of rule-based reasoning Llewellyn writes, "If we look more closely at
the work of deciding and acting, we find that a good deal of it, probably the greater part,
is not rule-governed at all. It is inspired, intuitive, imaginative, inventive,
improvisational, even capricious. ... Rule-thinking is not the only thinking, nor is it
always the best thinking, nor even the usual thinking

Interdisciplinary Method
In The Bramble Bush, Llewellyn drew on insights from psychology and sociology to
understand the behavior of legal actors. He emphasized the importance of understanding
the social context in which legal disputes arise and encouraged students to think critically
about the role of law in society.

In his book The Cheyenne Way, Llewellyn used anthropological methods to study the

legal system of the Cheyenne Indians. He and his co-author, E. Adamson Hoebel,
conducted field research among the Cheyenne and analyzed their legal practices and
customs. Llewellyn drew on insights from anthropology to understand the Cheyenne
legal system and to compare it with other legal systems.

The Common Law Tradition: In this collection of essays, Llewellyn drew on insights

from legal history, philosophy, and sociology to develop his realist approach to legal
scholarship. He argued that legal rules could only be understood in relation to the social
and cultural practices that gave rise to them and that legal history should be used to
illuminate present-day legal problems.
Overall, Llewellyn's use of interdisciplinary methods helped to transform the study of law
from a narrow focus on doctrine to a broader consideration of the social, economic, and
political forces that shape legal outcomes

Realists like Llewellyn argued that law should be studied as a social phenomenon, rather
than a set of abstract principles20. They emphasized the importance of understanding the
social, economic, and political context in which legal disputes arise, and rejected the
notion that legal rules could be applied in a neutral and objective manner21. Llewellyn's
Realism was pragmatic in orientation. He believed that legal rules should be evaluated
based on their practical consequences, rather than on their abstract coherence or
consistency.22 As he wrote in The Common Law Tradition, "The real lawyer is not
primarily interested in the abstract formulation of principles, but in the practical solution
of problems which arise in the concrete affairs of men and which demand a decision" 23.
Legal rules could only be understood in relation to the social and cultural practices that
gave rise to them As he says "The study of law is the study of how men do justice, how
they try to do what is right in the midst of conflicting claims"24.

Role of Judges
"The judge, far more than the legislature, is the real law-maker in modern society. It is
the judge who fashions the law to fit the changing needs of society" 25This reflects the
realist belief that the law is not fixed or static, but rather is constantly evolving through
20
Luban David. "The Realism of Karl Llewellyn." University of Chicago Law Review 64, no. 2 (1997),
472.
21
Twining William. "Karl Llewellyn and the Realist Movement." Legal Studies 15, no. 4 (1995), 427.
22
Luban, supra note 20.
23
Llewellyn Karl, The Common Law Tradition: Deciding Appeals. Little, Brown & Co, 1960.
24
Llewellyn, supra note 15.
25
Llewellyn Karl, Jurisprudence: Realism in Theory and Practice, ‘Michigan Law Review available at
<https://repository.law.umich.edu/cgi/viewcontent.cgi?article=6213&context=mlr>

‌
the decisions of judges and other legal actors. He argues that law is not a set of fixed
rules but rather a flexible and evolving system that must be constantly reevaluated and
adapted to changing circumstances. For instance judge who is deciding a child custody
case. The judge might be influenced by their own beliefs about what is best for children,
even if the law would suggest a different outcome. Llewellyn notes that this is not
necessarily a bad thing, as judges are human and cannot divorce themselves from their
personal values.
Rules are porous and judges have discretion in understanding and applying the law.
Llewellyn followed Holmes in pointing out that society is always in flux, so law is ever
catching up with society. The probability is ‘that any portion of law needs re-examination
to determine how far it fits the society it purports to serve’ The courts bear primary
responsibility for this re-examination.

In 1960 Karl Llewellyn comes with another academic paper "The Common Law
Tradition - Deciding Appeals" that explores the process of deciding appeals in common
law courts. From a realist point of view, Llewellyn argues that the traditional approach to
appellate decision-making, which relies on the application of legal principles to the facts
of a case, is flawed because it fails to take into account the practical realities of the legal
system.
He appraises the idea that the law is a set of fixed and immutable rules that can be
mechanically applied to any set of facts. He argues that the law is, in fact, constantly
evolving and that judges must take into account a wide range of factors when deciding
cases, including social and economic realities, political pressures, and the pragmatic
concerns of the legal profession.26

Llewellyn notes that precedent can be both helpful and limiting. On the one hand, it
provides guidance and consistency in the law. On the other hand, it can prevent judges
from making new interpretations of the law that might be more just. Appeals Another
example of Llewellyn's realist approach can be found where he discusses the role of
precedent in appellate decision-making. Llewellyn argues that the traditional view of

26
Llewellyn, supra note 23 at 17.
precedent as a set of fixed and binding rules is too simplistic, and that judges must be
able to distinguish between cases that are truly analogous and those that are not. He
suggests that judges must consider a wide range of factors when deciding whether to
follow precedent, including changes in social and economic conditions, changes in legal
doctrine, and changes in the needs of the legal profession.27

Legal Reasoning
He contends that legal reasoning is not simply a matter of applying abstract legal
principles to a set of facts, but rather involves a complex interplay between legal rules,
social context, and the personal biases and perspectives of judges. Llewellyn writes, "The
deciding of cases involves an interaction of law and fact, and a further interaction of legal
thinking and social thinking" 28
Legal reasoning can only take us so far in understanding
the law, and that it must be supplemented by other forms of knowledge and
understanding. He writes, "Legal reasoning, though an essential tool of the lawyer, is not
sufficient to comprehend the law in all its complexity. It must be supplemented by
sociological, historical, and economic analysis29" This reflects the realist belief that legal
analysis must be interdisciplinary, drawing on insights from a range of fields beyond
traditional legal doctrine.

Limitations of Legal Language

Llewellyn argues that legal language is often too abstract and divorced from the realities
of everyday life to be truly effective. He writes, "The law cannot be stated in a vacuum,
and neither can it be stated in abstract terms divorced from the facts, from the specific
individuals or institutions affected by the law, or from the historical context in which the
law arises"30

27
Llewellyn, supra note 23 at 43.
28
Llewellyn, supra note 25 at 163
29
Llewellyn, supra note 25 at 80
30
Llewellyn, supra note 25 at 41
For example, in his essay "Some Realism About Realism: Responding to Dean Pound,"
Llewellyn discusses the role of legal language and how it can be used to manipulate
outcomes in legal disputes. He provides examples of how the same legal terms can be
used to argue for different outcomes in different contexts, highlighting the importance of
understanding the social and institutional context in which legal disputes arise.

Jurisprudence: Realism in Theory and Practice

In this book, Llewellyn presents his ideas on the nature of legal rules, arguing that rules
are not fixed, objective standards, but rather are products of the social and cultural
contexts in which they are created and enforced. He also emphasizes the importance of
understanding the ways in which legal rules interact with other social norms and
practices.
On the relationship between rules and values, Llewellyn writes, "The rules we make, the
rules we live by, the rules we respect or flout, are not self-explanatory, not self-justifying,
not self-authenticating. They must always be seen in the light of some other value, some
other goal, some other purpose, some other plan"31

On the limits of legal certainty Llewellyn writes, "Legal certainty is a fine thing, but it is
not the only thing, nor even the most important thing. ... The law must be certain, but not
too certain, must be flexible, but not too flexible, must be predictable, but not too
predictable. It must leave some room for the unexpected, the unanticipated, the
undreamed-of.32

In "Some Realism About Realism," Llewellyn defended the realist approach to legal
scholarship against its critics. He argued that Realism did not necessarily lead to a kind of
relativism in legal reasoning, as some had claimed. Instead, he saw Realism as a way of
31
Llewellyn, supra note 19 at 45.
32
Llewellyn, supra note 19 at 98.
understanding the complexity of legal disputes and the multiple factors that influence
legal outcomes.

Critique of Karl Llewellyn

Llewellyn's writing style is dense and difficult to understand. They suggest that his use of
complex vocabulary and convoluted sentence structures can make it challenging for
readers to fully grasp his arguments.

Llewellyn's emphasis on pragmatism and problem-solving can lead to a lack of attention

to broader philosophical questions about the nature of the law. They suggest that
Llewellyn's approach risks prioritizing practical concerns over questions of justice and
fairness. Llewellyn's book fails to engage with broader questions of legal theory, such as
the role of the state in regulating society or the relationship between law and morality.

Critics argue that "The Bramble Bush" should be read in light of the historical context in
which it was written, and that some of its arguments may be less relevant to
contemporary legal practice. The book's emphasis on legal Realism, for example, may
not be as relevant in an era where legal formalism has regained some influence.

In his review of "The Bramble Bush," legal philosopher Lon Fuller argued that
Llewellyn's emphasis on the practical aspects of legal practice came at the expense of
broader questions about the nature and purpose of law. He criticized Llewellyn for
neglecting questions of justice and fairness in his focus on legal problem-solving.33

Legal philosopher Ronald Dworkin criticized Llewellyn's approach to legal reasoning,

arguing that it neglected the role of legal principles in guiding judicial decision-making.
He suggested that Llewellyn's emphasis on context and practical problem-solving could
lead to arbitrary and inconsistent legal outcomes.34

33
Fuller Lon, Karl Llewellyn and the Priorities of Legal Philosophy, Harvard Law Review, vol. 58, no. 2,
1944, 282.
34
Dworkin Ronald. The Model of Rules. University of Chicago Law Review, vol. 35, no. 1, 1967, 14-16.
In his book "The Problems of Jurisprudence," legal scholar Richard Posner criticized
Llewellyn's focus on legal Realism, arguing that it failed to provide a coherent theory of
the law. He suggested that Llewellyn's emphasis on context and pragmatism could lead to
a lack of consistency in judicial decision-making.35
In his essay "A Critique of Clinical Legal Education," legal scholar David Luban
criticized Llewellyn's approach to legal education, arguing that it neglected the
importance of legal theory in shaping the practice of law. He suggested that Llewellyn's
emphasis on practical problem-solving could lead to a lack of critical reflection on the
broader implications of legal practice.36

In her book "Making All the Difference," legal scholar Martha Minow criticized
Llewellyn's approach to legal education, arguing that it neglected the importance of social
justice in legal practice. She suggested that Llewellyn's emphasis on legal problem-
solving failed to fully account for the ways in which the law can perpetuate systemic
inequalities.37

Conclusion
Overall, Llewellyn's Realism was characterized by a commitment to studying law in
its social context, a rejection of formalism and abstraction in legal reasoning, and
a pragmatic orientation that emphasized the practical consequences of legal rules.
Llewellyn’s realism centered on a tough-minded empiricism about how law functions in
society, a belief that the real sources of law are in these social functions rather than just
rules and concepts, and an effort to evaluate law in terms of policy and democratic
values. For Llewellyn, realism represented “ways of feeling” and “ways of seeing” that

35
Posner, Richard. The Problems of Jurisprudence. Harvard University Press, 1990.
36
Luban, David. "A Critique of Clinical Legal Education." University of Miami Law Review, vol. 44, no.
1, 1989.
37
Minow, Martha. Making All the Difference: Inclusion, Exclusion, and American Law. Cornell
University Press, 1990.
sought to demystify law and ground it in human experience. This vision shaped a
monumentally influential jurisprudential movement that still impacts legal thought today.

Llewellyn's American realism has had a significant impact on contemporary legal

scholarship. Legal scholars today recognize that law is not a fixed set of rules, but rather
a dynamic process that evolves over time. They also recognize the importance of social,
economic, and political factors in shaping legal decisions, as well as the role of language
in interpreting legal concepts and terms.

Contemporary legal scholarship also recognizes the importance of interdisciplinary

approaches to legal analysis. Legal scholars today draw on insights from a variety of
disciplines, including sociology, political science, economics, and psychology, to
understand the complex factors that shape legal decisions. They also recognize the
importance of empirical research in understanding how legal decisions are made and how
they impact society.