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A generation ago "legal realists" led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, "The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges." Seventeen years later he confessed that his earlier behavioral descriptions of law contained "unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth."In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: "The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow."

Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, it reminds one of the fundamentalist church sign which proclaimed, "God said it. We believe it. That's all there is to it." The need for judicial balancing, I suggest, results from the imperfection of mundane law. In a better world, no doubt, clear and precise legal rules would anticipate all possible contingencies. No wonder, then, that idealists are impatient with the balancing process. Mr. Frantz" solution has a familiar ring. He suggests that law precedes, and apparently even transcends, politics.' Here is our old friend "the brooding omnipresence"--"the higher law"--that Holmes and Brandeis among others fought so hard to kill. Surely in a democracy law is a creature of the political processes, constitutional and legislative. Judges,of course, cannot avoid legislating in some degree, but to repeat Holmes' much quoted phrase they must do so only interstitially--lest they rather than the people govern.

Many of the leading contributors to the judicial process and behavior field are persons who completed an LL.B., and then moved on to a doctorate and to teaching in political science; very few persons have gone the opposite route since the end of World War II. One of that tiny minority is the author of a recent PS article, "Who is Listening?" in which he observed that "it may be significant that some of the older generation [of traditional public law scholars] wound up teaching in law schools jointly or exclusively." It may also be significant that it did not occur to him how well the shoe fits.Robert Dixon inappropriately subtitled his essay "Political Science Research in Public Law" — inappropriately because what he thereby denotes is virtually a null category. Even so, his may well prove to have been the last gasp of reactionary legalism, at least in the professional literature of political science.

By making 'meaning' the focus of study this paper offers a novel way of understanding the legal prosecution of drink‐drivers: the analysis relates to the defendant's perspective. Data were derived from observations of hearings in a lower criminal court in Western Australia, and interviews with 66 individuals who appeared on drink‐driving charges. The findings emphasise the significance for the accused driver of the pre‐court procedures. It is demonstrated that whilst most drink‐driver defendants plead guilty because they accept their guilt, their decision on the plea is constrained by their desire to minimize the various costs associated with judicial procedure. The question of whether or not the present system of processing drink‐drivers protects the interests of the accused merits further investigation.

The Florence Integration Through Law series is the product of a projected centred in the Law department of the European University Institute under the general editorship of Mauro Cappelletti, Monica Seccombe and Joseph Weiler. ; Digitised version produced by the EUI Library and made available online in Open Access in 2021 for research or private study purposes