NCJ Number
117270
Journal
International Journal of the Sociology of Law Volume: 17 Issue: 1 Dated: (February 1989) Pages: 41-62.
Date Published
1989
Length
22 pages
Annotation
This article examines socio-legal scholarship regarding the absence in the 'realist' perspective of an account of the social and institutional sources of legal power.
Abstract
Both 'realism' in law and 'realism' in philosophy discount ideas in favor of action and view truth as linked to the senses rather than reason. This article argues that the absence of an account of the social and institutional sources of legal power in the realist perspective is because the institutional power of a legal community is, in part, linked to the continual assertion of 'realism.' For instance, in the United States, evaluation of judicial appointments is circumscribed because it is dominated by consideration of professional qualification, and authority on professional qualifications is conceded to the bar. At the other end of the legal spectrum, reform movements fostered by the legal profession, such as alternative dispute resolution, are widely regarded as operating outside the profession. In such instances, the realist position preserves social and institutional authority under a new orthodoxy based on the marginality of legal form. This article's approach joins the contention for a 'post'-realist position by emphasizing institutions and social relations in law while taking account of the insights of 30 years of socio-legal research within the realist framework. 15 notes, 99 references.