Legal realism is popularly known for its hostility to legal doctrine. In the well-known account, realists have shown that legal doctrine does not and cannot prevent judges from using existing legal material to achieve virtually any desired result. As such, doctrine only serves to hide and obscure what is best discussed openly. The purpose of this essay is to complicate this familiar story. I focus on a contemporary view of legal realism that argues that an open discussion of values gives more determination to the law. First of all, I refute this view by showing that it does not really correspond to the views of right-wing realists, but reflects a modern point of view that corresponds to contemporary (American) legal discourse. I also submit that such a view is highly unlikely to improve the provision of the law and is likely to have unintended consequences. I then propose an alternative, which I trace back to the work of some legal realists. This approach gives legal doctrine a clear role and, in my view, is more normatively appealing than the perspective that minimizes the role of doctrine. Llewellyn KN (1960) Case law: realism in theory and practice. University of Chicago Press, Chicago Smith SD (1992) In defense of traditional legal scholarship: a comment on Schlegel, Weisberg, and Dan-Cohen.
Univ Colorado Law Rev 63:627-640 Legal realism is characterized as a type of jurisprudence by the emphasis on the law as it currently appears in reality, rather than by the way it operates in books. To this end, it has focused on the conduct of judges and the conditions under which this conduct affects judicial decision-making processes. As Karl Llewellyn says: “Judges uphold judgments; Judges are men; They have a human history as men. Thus, law was not in an abstract domain with universal laws or values, but was inseparable from human behavior and the ability of judges to decide the law. To understand the decisions and actions of legal actors, legal realists have turned to social science ideas to understand the human relationships and behaviors that have resulted in a particular legal outcome. Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal thought. It is now widely accepted that law is not and cannot be an exact science, and that it is important to look at what judges actually do when deciding cases, not just what they say they do. As evidenced by ongoing debates about legal activism and judicial deference, legal scholars continue to disagree on when it is legitimate for judges to “make laws” rather than simply “obey” or “apply” existing law. [20] But few would disagree with the realists` fundamental assertion that judges (for better or worse) are often heavily influenced by their political beliefs, personal values, individual personalities, and other extrajudicial factors. [21] Whether Cardozo was realistic is sometimes disputed. I think he was a representative of traditional legal realism.
Dagan (2013, p. 3) mentions him as one of the proponents of his version of legal realism. Legal positivism is a philosophy of thought for theoretical jurisprudence founded in the 18th and 19th centuries mainly by legal theorists such as Jeremy Bentham and John Austin. Although Bentham and Austin formulated the philosophy of legal positivism, empiricism provided the theoretical basis for these innovations. The positivist argument does not suggest that the principles of law are incomprehensible, unimportant or ancillary to legal theory. This means that they do not decide whether there are rules or legal frameworks. Whether a country has a legal framework, it depends on the existence of such governance mechanisms, not on the extent to which it respects the principles of freedom, equality or the rule of law. The law does not always follow the criteria according to which it is properly evaluated. Politics should be honest, but perhaps it is not; he should maintain the greatest good, but sometimes he does not; It must preserve human values, but it can struggle miserably.
This is what we would call the principle of moral fallibility. The argument is correct, but it is not the only property of positivism. The difference between these conditional and absolute choices is all that the philosophy of natural law requires to realize the concept of fallibility. It is often argued that positivism offers a more stable view of the fallibility of justice, because when we realize that it is a collective creation, we are less inclined to pay undue tribute to it and more able to indulge in a clear rational evaluation of the rule. Nevertheless, positivism is often more credibly associated with the belief that legal theory is or should be value-neutral. Of course, legal positivism is not an “evaluation of its subject,” that is, an evaluation of menstruation. Thus, the suggestion that the life of law is based on social reality does not force us to believe that it is a positive thing. Of course, there is a context in which each definition is filled with meaning.
He selects and systematizes only a part of the infinite number of facts on his subject. Waddams S (2003) Dimensions of private law: categories and concepts in Angl0-American legal reasoning. Cambridge University Press, Cambridge The rules that remain in force in this context depend on the legal standards that the authorities consider authoritative; such as legal measures, court decisions or social practices. The reality that a policy is moral, reasonable, effective, or reasonable is rarely enough to believe that it is truly the norm, and the possibility that it is unfair, reckless, wasteful, or reckless is never a sufficient reason to question it. Law, according to positivism, is a question of what has been presented (ordered, determined, exercised, accepted, etc.). Austin found the thesis “simple and impetuous.” While this is undoubtedly the dominant opinion among analytically oriented legal theorists, it is still the target of conflicting definitions, as well as frequent criticisms and misunderstandings. There are links between legal realism and legal positivism. Legal experts argue that all legislation is a good rule because it is socially dependent. Therefore, the rule is incomplete: there are legal issues that cannot be regulated by law alone. Yet legal realists tend to believe that all laws are good, arguing that positive law underdetermines judicial decisions, at least in appellate proceedings. My point is that there is a divergence in their respective approaches to sources of law after such logical errors have been ruled out. Positivists believe that some branches of legislation are binding, at least for judges.
Legal realists argue that other documents are merely permissive: only national laws and affairs sometimes no longer provide for jurisdiction, for example an international legal norm. Compared to the more common origins of indeterminacy known to positivists and realists, this tends to understand why realists believe that the rule governs too badly in disputes, and why questions of strategy and interest sometimes undermine it. Alexander L (1998) The Banality of Legal Argumentation. Notre Dame Law Rev 73:517-533 American legal realists believe that jurisprudence is more than the “mechanical” application of well-known legal principles to the undisputed conclusion of fact in accordance with the arguments of legal formalism. Some realists believe that one can never be sure that the facts and law identified in the judge`s reasoning were the real reasons for the verdict, while other realists accept that one can often rely on a judge`s motives, but not always. Realists believe that the legal principles that legal formalism treats as unchallenged actually hide controversial political and moral choices. If Dagan were to argue that this view is a form of realism, only one that favors certain values (stability or certainty) over others, he would actually argue that doctrinalism is also a form of realism (though perhaps a normatively unattractive form), not that it is impossible.