The beginning of the 20th century saw the emergence of the doctrine of "legal realism", which might be summarized by the statement, "Law is what judges do." This judge-centric view can be distinguished by the alternative positions that law is, or includes, what constitutional referenda, conventions, or legislatures do, or perhaps even what executive branch agents do, either in executing judicial orders, or with the acquiescence of judges or other officials. It is submitted that such positions fail to make an essential distinction between law, as a command from a lawmaker to the public, and practice, as the application of law, with due discretion, to particular cases and individuals.
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In the selections that follow, Holmes represents the "realist" school of thought, and Langdell and Beale the "formalist" school. Cardozo straddles the schools.
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Maintained:Jon Roland of theConstitution Society
Originaldate: 2004 April 19 Updated: 2004 April 25