Isaac Barnes May, Resident Fellow, Information Society Project, Yale Law School, has posted Legal Realism and the Separation of Religion and Judicial Reasoning, which is forthcoming in the Yale Journal of Law & the Humanities:
Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order.
Jerome Frank (LC)
The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity.
For more on Frank's life and career until 1933, see my Making of a New Dealer. As I show in forthcoming work, Frank could be quite scathing about the Reform Judaism of Chicago's German Jews. The query I'd raise is that Frank's immediate target--the grit that irritated him into producing Law and the Modern Mind--was a quite secular "Bealism"--that is, Langdellian legal science personified by the founding dean of the University of Chicago. Mr. May anticipates this query by noting homologies between legal science and theology and arguing, with quotes from Law and the Modern Mind, that Frank targeted the "theistic and Christian wing of classical legal thought" as well as the Bealists.
--Dan Ernst
