Private Law Realism

Hanoch Dagan argues that the legal realists conceived of law as “a dynamic institution, or set of institutions, that embodies three constitutive tensions: between power and reason, between science and craft, and between tradition and progress.” One tension that Dagan mentions but does not emphasize sufficiently is the tension between adjudication and legislation. Understanding the ways judge-made common law influences legislation and the ways that statutes affect the development of common law will improve our understanding of legal reasoning, the rule of law, and the role of judges in a free and democratic society