THE NORMATIVE DEFICIENCY OF AMERICAN LEGAL REALISM: DESCRIPTION WITHOUT JUSTIFICATION

AUTHOR – ADV. HRUSHIKESH GORDE, LLM II ND YEAR, D.E.S. SNFLC, PUNE

BEST CITATION – ADV. HRUSHIKESH GORDE, THE NORMATIVE DEFICIENCY OF AMERICAN LEGAL REALISM: DESCRIPTION WITHOUT JUSTIFICATION, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (7) OF 2026, PG. 736-743, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

American legal realism fundamentally transformed modern jurisprudence by overthrowing formalist orthodoxy and revealing the indeterminacy of legal rules, the psychological and social factors influencing judicial behavior, and the predictive nature of law. Yet for all its descriptive power, legal realism suffers from a profound normative deficiency: it can tell us what judges do, but it cannot tell us what judges should do. This article argues that realism’s core commitments—indeterminacy, the fact-value distinction, skepticism about rules, and the reduction of law to empirical prediction—render it incapable of distinguishing legitimate adjudication from arbitrary power, reasoned deliberation from caprice, or justice from raw preference. After tracing the historical evolution of realism and articulating its normative deficiencies, the article examines failed internal responses from the legal process school, Ronald Dworkin’s interpretive theory, and pragmatic neorealism. It concludes that realism cannot be normatively reconstructed from within. Instead, the way forward requires supplementing realist description with external normative anchors—democratic legitimacy, rule-of-law values, fairness, and procedural norms such as reasoned elaboration and like-case treatment—while adopting a limited indeterminacy thesis. By integrating realist insights into a broader, normatively anchored jurisprudence, legal theory can preserve realism’s critical edge against formalism without collapsing into cynicism or pure power analysis.

Keywords – Legal realism; legal formalism; judicial discretion; indeterminacy; normativity; adjudication; rule of law; fact-value distinction; Jerome Frank; Karl Llewellyn; Oliver Wendell Holmes Jr.; legal process school; Ronald Dworkin; normative deficiency; jurisprudence