What Is Realism in Law

What Is Realism in Law

A statistical method of natural language processing was used to automatically predict the outcome of cases heard by the European Court of Human Rights (violation or non-violation of a particular article) based on their textual content, achieving a prediction accuracy of 79%. [22] A subsequent qualitative analysis of these results provided some support for the theory of legal realism. The authors write: “In general, and despite the simplified snapshot of a very complex debate we have just presented, our findings could be understood to support the basic legal and realistic intuition that judges respond primarily to non-legal rather than legal reasons when deciding difficult cases. As a form of jurisprudence, legal realism is defined by the emphasis on the law as it actually exists in practice, rather than as it exists in books. To this end, he focused on the actions of judges and the factors influencing judicial decision-making processes. As Karl Llewellyn argues: “[t]he decisions are judges; Judges are men; As men, they have a human past. [3] Thus, law did not exist in a metaphysical domain of fundamental rules or principles, but was inseparable from human action and the power of judges to determine law. To understand the decisions and actions of legal actors, legal realists turned to social science ideas to understand human behavior and relationships that resulted in a particular legal outcome. [4] Legal realism is a naturalistic approach to law. It was felt that jurisprudence should imitate the methods of the natural sciences, i.e. be based on empirical evidence. Hypotheses must be tested against observations of the world. [ref.

needed] Holmes is a prominent figure in American legal thought for many reasons, but what realists have drawn most from Holmes is his famous predictive theory of law, his utilitarian approach to legal reasoning, and his “realist” insistence that judges in deciding cases not simply infer legal conclusions with relentless and mechanical logic. but are influenced by ideas of equity. Public order, prejudice and experience. In the first paragraph of The Common Law, he writes: A “realist theory of law” has two elements: “realism” and “naturalism” Realism in the tradition of Thucydides, Machiavelli and Nietzsche aims to describe how things are really without romantic or moralizing illusions; In the legal case, we want to know what the law and legal institutions really look like, not what we want. Realists do not assume that the way things are has a “moral sense” or is morally defensible. Naturalists provide explanations for legal phenomena that rely only on entities and mechanisms that occur in successful empirical sciences; Above all, naturalists are not physicalists. Realism and naturalism about law, in the preceding senses, lead us to Hart`s positivism about legal validity; the view that, in some cases, legal reasoning underdetermines the judicial decision; recognizing that the law applies primarily outside the courts; and skepticism of theories of natural law as ideological illusions. The final versions of this essay will appear in Spanish and Portuguese translation in South American magazines. Some realists have only tried to show that law is neither autonomous, nor apolitical, nor determined. For example, JEROME FRANK, who coined the term legal realism and later became a judge in the United States.

The Second District Court of Appeals emphasized the psychological basis of judicial decision-making, arguing that a judge`s decision can be influenced by everyday things like what he ate for breakfast. Frank believed it was misleading for the legal profession to perpetuate the myth that the law is clearly recognizable or accurately predictable when it is so plastic and changing. KARL LLEWELLYN, another founder of the American legal realism movement, also believed that the law is little more than a cement in the hands of a judge capable of influencing the outcome of a case based on personal prejudice. Legal realists believe that jurisprudence should examine law only through the worthless methods of the natural sciences, rather than through philosophical inquiries into the nature and meaning of law, which are separate and distinct from law as it is actually practiced. In fact, legal realism claims that the law cannot be separated from its application, nor can it be understood outside its application. As such, legal realism focuses on the law as it actually exists, not the law as it should be. By situating the importance of law in areas such as judges` legal opinions and their respect for or rejection of past precedents and the doctrine of stare decisis, he emphasizes the importance of understanding the factors involved in judicial decision-making. Legal realism was primarily a reaction to the legal formalism of the late 19th and early 20th centuries and was the dominant approach for much of the early 20th century. With her negative willingness to challenge formalistic assumptions, she managed to ensure that judges always do what they said, so that it is often said that “we are all realistic now”. Realism, however, has failed in its positive quest to find a better way to predict how judges would behave than relying on the reasons given by judges. Legal realism reached its peak from the 1920s to the 1940s.

In the 1950s, legal realism was largely supplanted by the legal litigation movement, which viewed law as a process of “reasoned elaboration” and asserted that appeals to “legislative ends” and other established legal norms could provide objectively correct answers to most legal questions. In his 1961 book The Concept of Law, British legal theorist H. L. A. Hart dealt a “decisive blow” to legal realism[16] by attacking the predictive legal theory that many realists had adopted from Holmes. Hart pointed out that if a law is just a prediction of what the courts will do, a judge thinking about the legal merits of a case before him really asks, “How am I going to decide this case?” As Hart notes, this completely overlooks the fact that judges use legal rules to guide their decisions, not as data to predict their eventual involvement. All these themes can be found in Holmes` famous essay “The Path of the Law” of 1897. Holmes attacks formalistic approaches to judicial decision-making, formulating a pragmatic definition of law: “Prophecies of what the courts will actually do, and nothing more presumptuous, are what I mean by law. [10] If law is a prophecy, Holmes continues, we must reject the view of “lyricists” who tell us that law “is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is or is not a derivative of the principles of ethics or permissible axioms. which may or may not be in accordance with the decisions”. [10] I believe trial judges are more likely to be legally realistic for a variety of reasons.

First and foremost, I believe their overburdened court cases force this into local courtrooms. Judges are often placed in situations where they must act quickly to deal with the large number of cases before their respective courts. They often “split the baby in half” to solve certain problems. They don`t have the time to sift through lengthy briefs that lawyers are known to write, and frankly, they don`t have the time to spend the time that a cognitive approach would require on joint litigation. It is much easier and more efficient for judges to resolve cases quickly by doing what they believe is the best outcome for the parties to the court, regardless of complex legal concepts. They have a general understanding of the many legal interests and have a working knowledge of the fundamental concepts that guide their day-to-day decision-making. They are not interested in being published in the Yale Law Review for their ingenious thoughts or opinions on an original topic. They just want to get through the day and be able to sleep with the decisions they made from the bench. Realism continued for much of the late 20th century.

H. L. A. is a nineteenth-century conceptual claim. Hart`s misunderstanding of theory. [5] Hart was an analytical legal philosopher who was interested in the conceptual analysis of concepts such as the notion of “law.” This included identifying the necessary and sufficient conditions for the use of the term “law”. When realists like Oliver Wendell Holmes pointed out that those involved in the legal system generally wanted to know what was going to happen, Hart assumed that they provided the necessary and sufficient conditions for the use of the term “law.” .