Our article, in contrast to the predominant scholarly view, 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 will investigate the legitimacy and determinacy of the legal order through the lens of CLR as represented by Isaacs.
Isaacs and CLR are especially worthy subjects for study given the current economic crisis. It is a crisis, much like the Great Depression, that 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 while supporting an attack on the constitutionality of New Deal interventionism.
CLR asserts that although legal rules provide indeterminate answers in hard cases, principled-guided rules will lead to a correct answer. CLR calls on judges to continuously strive to uncover underlying objective principles 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 Harvard Business School’s “Special Collections,” as well as other archives, to connect Isaacs to major figures in the Legal Realist Movement. Isaacs’ broad contextual framework allowed 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. However, his belief in the integrity of the legal order moved him beyond rule skepticism. His understanding of the dynamic nature of law provided 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.
Larry A. DiMatteo & Samuel Flaks, Beyond Rules, 47 Hous. L. Rev. 297 (2010), available at http://scholarship.law.ufl.edu/facultypub/527