Justices Create the Law¶
Under Construction. This section and chapter will expand greatly.
Will also contain proper structuring and contents
Karl Llewellyn introduced the first principles of legal realism, the “conception of law in flux, of moving law, and of judicial creation of law [Llewellyn, 1931].” The central premise is that the static conception of the law as “a complete and autonomous system of logically consistent principles, concepts and rules” is inconsistent with the reality of jurisprudence 1. For instance, as Frank puts it, “the law is uncertain, indefinite, subject to incalculable changes” and above all “vague and variable ([Frank and Bix, 2017], 5-7)” For legal realists, then judicial opinions purporting legal rules merely rationalize decisions; rules cannot be the cause of them.
C. Herman Pritchet¶
C. Herman Pritchet’s the Roosevelt Court ([Pritchett, 1969], xii-xiii). suports Llewellyn’s theory. Pritchet’s The Roosevelt Court systematically analyzes ideological configurations from the Court’s nonunanimous decisions between 1937 and 1947 finding that the “the politics and values of the Roosevelt Court were predominantly motivated by the preferences of the Justices.” An idea that is currently heterodox among the majority of U.S. Representives and Senetatori 2, 3.