A common error in contemporary jurisprudence consists in treating all ‘legal theories’ as if they were rival attempts to answer the same question or set of questions. The most obvious form of this error is to assume that all such theories represent purported answers to the ambiguous question: ‘What is law?’ There can be few jurists of note who have not been subjected to criticism which either distorts or ignores what they were trying to do. This study starts from the premise that jurisprudence is not a one-question subject and that the realist movement is significant in large part because its members helped, both directly and by the responses they provoked, to shed light on some relatively neglected topics.

Despite a recent tendency towards more sympathetic treatment, a depressingly high proportion of the enormous secondary literature on American legal realism consists of superficial interpretation and unnecessary polemics. While a variety of factors, political, cultural and academic, has no doubt contributed to this state of affairs, the error of treating all legal theories as comparables is at once the most significant and the most easily avoided. It is an elementary axiom of intellectual history that the first step towards understanding a thinker is to identify the questions which worried or puzzled him. In the case of the variously defined aggregation of American jurists known as ‘the realists’ it is especially important to identify the main concerns of the early members of the movement and their forerunners.