THE ‘REALIST SCHOOL’

That law and legal science are part of the cultural landscape is obvious. The ‘makers of the law’ do not operate in a void. They belong to a particular society and are influenced by the intellectual climate and the great debates of their time. It is therefore natural that in the preceding chapters we have talked of the impact of ideas and ‘holy books’ on European legal history. This cultural aspect is, however, only one part of the story, as power politics and economic pressures also mark the face of the law: legal history is Machtsgeschichte as well as Ideengeschichte, and the Struggle for law, to quote the title of a famous book by Rudolph von Jhering, is far from being an academic issue to be debated in some learned colloquium. It has rightly been said that ‘law is politics under another guise’ and the ‘critical legal studies movement’ or ‘Realist School’, which was influential in the 1970s and 1980s, deserves credit for drawing attention to this other side of the coin of legal history. The representatives of this American realism, in Kelly's words, ‘denied to law and judicial decisions any special character separating them from politics and political decisions’. Without going so far as to hold that law was no more than a device for maintaining structures favourable to the ruling class, they held ‘nevertheless that law is politics under another guise, and its pretensions to objectivity, transcending political commitments, are a sham’.