Document Type

Article

Publication Title

Saint Louis University Law Journal

Abstract

I need to begin by defining a legal realist as anyone, including a practitioner of sociological jurisprudence, who rejects formalism’s faith that judges can derive results in hard cases deductively from nonpolitical, neutral, and objective sources of law such as cases and statutes. A realist believes that judges must bring something else to the table. But what else? Here I need to draw an overly sharp, analytical distinction. On the one hand, a judge might see herself as an agent of society who is under a duty to make law conform to the wishes of society. If such a judge thinks of society as a train, law will appear as the caboose at the end of the train, and the judge’s job will be to keep the caboose on the same track as the train. On the other hand, a judge might see himself as society’s commander. Looking upon society as a train, law will emerge as the engine, and the judge as the engineer who must determine the direction that the train ultimately will take. Of course, law is both an engine and a caboose. Nevertheless, we sometimes tend to think of it more as one than the other. My hypothesis is that until Brown, legal thinkers tended to see law as a caboose and the judge as someone who tidied up and ensured that law was following in the direction society was leading. Since Brown, our emphasis has shifted, and we now tend to look upon law more as the engine that will dictate the course society will take.

First Page

795

Volume

48

Publication Date

2004

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