Legal Realism: Misunderstood, Overhyped, and Still Useful (Sometimes)

by John-Michael Kuczynski

I’ve taken real law school classes—not as a lawyer, and not as a law student. I took them as part of a deep undercover research project. I’ve also spent a small fortune on lawyers—about ten of them, to date. I’ve been a defendant in a criminal case (dismissed, no thanks to my counsel) and a litigant in a nasty estate dispute. So I’ve seen law from the inside and the outside.

And I’ve also spent years thinking and writing about law philosophically. One thing that comes up over and over again in law schools, in legal theory, and in adjacent academic fads is a thing called legal realism. And I’ve got a bone to pick.

Legal Realism: What It Is (and Isn’t)

Legal realism is often summarized with a smug little phrase: “The law is just whatever the judge had for breakfast.” It’s the idea that judicial decisions are shaped not by rules, but by personal quirks, political ideology, or raw bias. And while that summary has a grain of truth, it's also wildly reductive.

More formally, legal realism—especially in the U.S.—was a movement in the early 20th century that challenged the idea that judges simply "apply the law." Legal realists argued that:

• Law is not a self-contained logical system.

• Judicial decisions are shaped by psychological, social, and economic factors.

• The real law is what officials do, not what’s written in dusty books.

In that respect, it’s less a doctrine than a critique—a way of saying, “Let’s be honest about what courts actually do, rather than pretend they’re logical machines interpreting sacred texts.”

Fair enough.

But Legal Realism Isn’t Deep Enough

Here’s where I push back: legal realism is shallow if taken as the whole story.

Sure, there are rogue judges. Sure, precedent doesn’t dictate outcomes like a syllogism. But to say there are no laws? That it’s all just bias, power, and rationalization?

That’s just not true—and it’s demonstrably false. Judicial rulings do track statutory language, most judges do try to align decisions with precedent, and case outcomes are statistically predictable in most jurisdictions. There’s noise, but there’s also structure.

If you really believed that law "doesn’t exist," then no one would ever need a lawyer, because there’d be nothing to interpret or argue about. But people hire lawyers all the time precisely because the system has a shape—however ambiguous, however manipulable. Legal realism helps expose that ambiguity. But it’s wrong to say that’s all there is.

John Austin: Not a Realist, Just a Positivist

While we’re clearing things up: John Austin—the 19th-century British thinker often misclassified as a kind of realist—is actually a legal positivist. He thought law was:

• A command issued by a sovereign,

• Backed by sanctions,

• And totally separate from morality.

That’s positivism. It’s rigid, mechanistic, and tries to make law into a kind of science of authority. It assumes that law exists and has structure—but that its legitimacy comes from power, not justice.

So if you’ve ever confused Austin with the American realists like Jerome Frank, no shame—but let’s be precise. Austin was trying to make law look more like geometry. Frank was trying to show that law isn’t even algebra.

Jerome Frank: The Real Realist

Of all the realists, Jerome Frank deserves the most credit. He wasn’t shallow. He wasn’t cynical. He was psychologically attuned and philosophically serious.

In Law and the Modern Mind (1930), Frank argued that:

• Legal reasoning is often post hoc—judges intuitively decide, then justify.

• The idea that judges find law (instead of making it) is a myth.

• Judicial decisions are shaped by personality, childhood experiences, even neuroses.

In short: law is a human practice, not a logical deduction. And until we accept that, we’ll keep pretending that our courts are neutral truth-machines when they’re anything but.

That insight is valuable, especially for people caught in the system who feel gaslit by its procedural formalism. But even Frank didn’t say “law doesn’t exist.” He said law is messy, fallible, and psychological. That’s different.

Duncan Kennedy: Realism Gone Wild

Now enter Duncan Kennedy, one of the founding figures of Critical Legal Studies (CLS). CLS is like legal realism on ideological steroids:

• It claims that law is not only indeterminate, but also a tool of oppression.

• Legal education, according to Kennedy, is an exercise in indoctrination.

• Legal doctrine, in his view, mystifies hierarchy and legitimizes inequality.

Some of this is right. Law school does crush dissent and reward conformity. Legal reasoning often masks ideology in the robes of neutrality. But Kennedy takes it to an absurd extreme.

He implies that because legal concepts like “rights” or “property” have ideological histories, they’re somehow invalid. But that’s nonsense. Everything has baggage. Free speech has liberal and economic baggage. So what? That doesn’t make it worthless.

I’d rather have Locke or Adam Smith in my corner than no one at all.

Rights aren’t perfect. They’re messy, ideological, historically contingent. But they’re shields. And sometimes the only thing between you and the abyss is a concept with “baggage.”

Final Thought: Keep the Good Baggage

The world doesn’t need more clever deconstruction. We get it: law is political. Judges are biased. Legal concepts have power baked into them. Congratulations.

But the point of critique is not just to undo. It’s to rebuild. To ask:

• What’s the best structure we can build, knowing human beings are flawed?

• What legal concepts are worth saving, refining, defending?

Legal realism matters. It punctures the illusion of mechanical justice. But when it turns into a kind of intellectual nihilism—as it does in much of CLS—it becomes worse than useless. It becomes a cop-out.

We don’t need to believe law is sacred.

But we do need to believe it’s real.