68 Mark Washofsk)
1989), 31. Though the difference between these positions is substantive, we need not resolve this machloket here. For our purposes, it is enough to say that the concepts“principle” and policy” can both refer to considerations other than rules that are yet essential to the judge’s
decision and which therefore determine the law in specific cases 71. 115N.Y. 506,22 N.E. 188(1889)
72. The two positions are charted by Y. Z. Kahana in his marvelously detailed introduction to Sefer Ha'agunot(Jerusalem : Mosad Harav Koook, 1954), 7-76
73. As Holmes wrote in his critique of the jurisprudence of Christopher Columbus Langdell
“ideal in the law, the end of all his striving, is the elegantia juris, or logical integrity of the system as a system. He is, perhaps, the greatest living legal theologian . But as a theologian he is less concerned with his postulates than to show that the conclusions from them hang together. . so entirely is he interested in the formal connection of things, or logic, as distinguished from the feelings which make the content of logic, and which have actually shaped the substance of law.” By contrast, says Holmes ,“The life of the law has not been logic; it has been experience
The seed of every new growth within its sphere has been a felt necessity.” See Oliver Wendell Holmes ,“Review of CC Langdell , Summary of the Law of Contracts and WR Anson, Principles of the Law of Contract,” American Law Review 14(1880), 233ff, at 234. Cardozo describes elegantia juris as“an intellectual passion...for symmetry in form and substance”, Benjamin Cardozo , The Nature of the Judicial Process(New Haven: Yale U. Press, 1921), 34.
74. tis a tricky business to summarize“legal realism” in as cursory a fashion as I do in the text, though reasons of space leave me little choice. It should at least be noted that legal realism was not an academic“movement” in any organized sense but rather a mood, a particular disposition that took root among American(and some European) legal academics during the first several decades of the twentieth century. Fundamental to this mood was an aversion to the formalist or conceptualist jurisprudence of Langdell (see previous note) that had become predominant in American law schools. Realists emphasized the“real”(i.e., non-doctrinal) causes of legal development and judicial decision, incorporating elements of pragmatist philosophy and social science into their understanding of law. Much has been written about the history of the “movement”; a good recent work that deals incisively with the historiographical controversies is Neil Duxbury, Patterns of American Jurisprudence(Oxford: The Clarendon Press, 1995), 65-160.
78. Ibid., 65.