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Legal Realism

Legal Realism

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Published by: Black Panther on Sep 08, 2010
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"The life of the law has not been logic; it has been experience.

Oliver Wendell Holmes, Jr.
Associate Justice US Supreme Court


Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). .

Law is written down and explicit.The essential tenet of legal realism is that all law is made by human beings and. . is subject to human foibles. This simply means that there is no law unless it is promulgated by the State. thus. frailties and imperfections.

Laws Made By Men Are:    Idiosyncratic or faulty Imperfect Changes based on collective belief .

Legal Realism postulates that:  The law is what the courts say it is.  . It is also relative. A law is merely a law on paper unless a case arises to interpret it. there is no law because there is no judicial interpretation. Unless a case arises out of the interpretation and enforcement of a written law. flexible and dynamic. Law is pragmatic. empirical and scientific.

Legal Realism postulates that:  The source of law is the social experience of the people. not on "the law that ought to be. The school of modern legal realism criticizes the natural law school or the philosophical school because it believes that law has no metaphysical source."  . The end of law is "social contentment". It focuses its study on "the law that is". It is an instrument of social control.

The earliest codified Roman laws were the Jus Civilis. persons. which was applicable to the legal relations of Roman citizens with aliens ("perigrino") -. which was applicable to Roman citizens. and the Jus Gentium. etc. The Romans made law systematic. as in the areas of family.both of which were administered by a "praetor" or a judge. Emperor Justinian's greatest contribution to the growth of the legal system of the world was his codification of all Roman laws. contracts. slavery. .

Today.During the Reformation Period. and the school of modern legal realism. the world saw the rise of Protestant philosophers. the functional school. the world saw the rise of the sociological school. .

Modern Legal Realism       The law is objective. and empirical. nonIt is free from metaphysical speculation. The expression of the will of the state.e. of all non-legal elements. Law is not a moral concept. i. authoritative. It is not made by God but by a superior sovereign. Natural law and moral law do not matter. should be removed. . commanding. Therefore moral connotations and value judgments from law.

Modern Legal Realism  Law is the conscious will and command of the sovereign imposed on the subjects. hence. who are liable to suffer penalties in case of violation thereof (authoritative enforcement system). Law is a positive norm of conduct.  . system). it is uniform for all.

It focuses on the "operation and effects" of law in relation to the interests of society. not the folk-soul or the folkpressures from the powerful elite." or "social science school of law.Definitive Points of Legal Realism  It focuses on the question: "Will this law work?" Law is one of experience. "sociology of law. The "interests of society". law. It is also called the "theory of sociological jurisprudence".   . is the source of law It maintains that law is an evolutionary process.

It maintains that factors defining the law are expediency and the convenience of society. friction. Its main guidepost is "the greatest good for the greatest number. It is a tool of "social control" or "social engineering. "   ." In a sense. it adheres to the tenets of "pragmatic ethics" or "ethical relativism" as it aims to serve the interests of society with the least friction.Definitive Points of Legal Realism  Law is a tool for the "balancing of interests" in society.

A Brief Overview of Natural Law .

and mutuality of rights. morality. supremacy of reason and free will (as God-given Godand inherent in man). Man knows what is natural right or natural law because he is rational and the precepts of natural law are inherently written in his heart and mind (conscience). It is reason that makes law and obeys law. freedom. and universal law of morality.Natural Law Postulates that:  Human dignity (man as end in himself). equality.  .

Doing an act not out of "duty" (good will) is immoral.Natural Law Postulates that:  "Practical reason" (the "good will" in man.   . the "empirical imperative") that makes law and compels the conscience of man to obey the law. His ideal society is one where all men possess the virtue of duty to do good. though it may be legal. Duty (to obey and revere the law and to do good to fellow men) is the highest virtue.

is such that it can coco-exist with the freedom of the will of each and all.Natural Law Postulates that:  Man is a moral individual. or in the maxim on which it proceeds. Human rights are not contracted but are inherent in man (dignity.   . Moral rightness is a matter of "motives" and legal rightness refers to "external acts." Every action is right which in itself. equality). according to a universal law. freedom. He is not a chattel.

Legal Realism VS Natural Law  Natural law was the law above the law. or laws of nature. or the changing norms of the society in which he lives. It is a theory founded on the philosophical and legal belief that all humans are governed by basic innate laws.  . Instead of consulting universal principles. man consults his own needs. wants. and agendas. Legal Realism is founded on the belief that man makes up his own law.

These are:      power and economics in society the persuasion and characteristics of individual judges society's welfare a practical approach to a durable result a synthesis of legal philosophies. Although there are five strands of thought that predominate the view.Legal realism is not a unified collection of thought. .

" and "the ruling element is always the strongest. Justice Holmes echoed these sentiments when he wrote that the law must not be . This view is articulated by Thrasymachus in Plato's Republic.Power and Economics in Society The first strand is marked by the nihilistic view that law represents the will of society's most powerful members. Thrasymachus said. when he tells Socrates that in every government "laws are made by the ruling party in its own interest." When courts speak in terms of what is right and just. they are speaking "in the interest of those established in power" (Plato. 18).

then it can be changed to adapt to the growing needs of society. Decisions of the Court is not absolute because it may be reversed or changed at some future point in time.Effect of Legal Realism  Since the law is imperfect.   . Moral norms and natural law postulates do not decide court cases or determine social behavior.

the law is what the courts say it is and how the courts interpret and apply it (jurisprudence). .Effect of Legal Realism  As stated earlier. That is the true source of law and the nature of law.

an imperfect human being. . with biases and prejudices.FactFact-finding is the most difficult and the most crucial task of courts. who determines and applies the law. The judge. is a real person. and affected by all kinds of "metalegal stimuli". He is subject to all kinds of real socio-psychological sociopressures.

In this school of thought. . and applies the law. the emphasis is on the judicial process. Justice is equated with equality. The official promulgation of a law is not necessarily equal to the justness of its contents.In modern legal realism. It is the adjudicative process of the judiciary which defines. congressional acts are not law but are a source of law. interprets.

folk- . with law as an expression of the folk-soul of the people. which.Out of this school rose the "critical legal studies movement" in the United States. influenced by modern radical social theories. looked at law as being imposed by the ruling class or elite in society who controls the tools of production. The movement advanced the vision of positive equality (free open society).

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