47:2 Beyond Rules

Article

Abstract

In contrast to the predominant scholarly view, our article contends that the influential Legal Realist Movement of the 1930s was actually two movements—radical legal realism and conservative legal realism (CLR). CLR is best understood through the works of Nathan Isaacs. This article investigates the legitimacy and determinacy of the legal order through Isaacs’ representation of the CLR lens.

In light of the current economic crisis, Isaacs and CLR are especially worthy subjects for study. Much like the Great Depression, the crisis has spurred many people to question core capitalistic premises, such as the superiority of minimal government regulation of business and the structuring of financial instruments through freedom of contract. CLR’s merger of anti-formalism and an idealism inspired by the Jewish legal tradition resulted in its rejection of Lochner-era judicial decision-making and its support for an attack on the constitutionality of New Deal interventionism.

CLR asserts that although legal rules provide indeterminate answers in hard cases, principle-guided rules lead to correct answers. CLR calls on judges to continuously strive to uncover objective principles underlying the rules and to understand their historical evolution. Isaacs sought to blend an evolving but cyclical organic theory of legal development with the pragmatism needed to make rules workable. To do this, the contingent nature of law must be contained within a framework of moral, political, and cultural values. This framework characterizes CLR as both a critical and positive theory of the legal order. This fusion of an organic natural law with the inherent indeterminacy of legal conceptualism moves beyond rules to a principle-based contextualism.

We use previously neglected archival material, found in the Harvard Law and Business Schools’ “Special Collections,” as well as other archives, to connect Isaacs to major figures in the Legal Realist Movement. Isaacs’ broad contextual framework enabled him to play a pioneering role in the development of the social-scientific study of law and the critique of legal formalism that was the basis for the Legal Realist Movement. His belief in the integrity of the legal order, however, moved him beyond rule skepticism. His understanding of the dynamic nature of law provide insights into constitutional interpretation, cycle theory of legal development, status-based regulation of standard form contracts, re-conceptualization of law, and the need for an interdisciplinary approach to law study and reform.