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Get Real Theory
Get Real Theory
Get Real Theory is a postulate of which intends to pragmatize the application of laws. It
tells the law and the law practitioners to get real, and asks whether the law can be
implemented and verified by means of practical experience.
The Realist school, the Legal Realism, or sometimes called the Pragmatic Jurisprudence
and any of their similar school of thoughts, in a broad sense, focuses on human realities
that are overlooked by hard law, technicalities, and abstract policies. They conceive
legal phenomena as psychical phenomena, and notably, as a form of moral motivation
of human behaviour. (Bad Man Perspective vs. Good Man Perspective)
Legal realists are opposed to most versions of contemporary legal positivism, the legal
formalism, and the natural law traditions.
Proponent / Forerunners:
Roscoe Pound, John Chipman Gray, and Benjamin Cardozo are among the few
proponents, who forcefully criticize formalist approaches. John Dewey had held up
empirical science as a model of all intelligent inquiry. He argued that the law should be
seen as a practical instrument for advancing human welfare. But the most notable
proponent is Supreme Court Justice Oliver Wendell Holmes, Jr.
Holmes explained that nearly every man wants to avoid disobeying the law when
confronted with disagreeable consequences, and not all will obey the law for its sake
even if without consequences.
The Bad man perspective is a better way to ensure that everyone will obey.
Key Themes
Criticisms:
1. Realists exaggerated the extent to which the law is riddled with gaps,
contradiction and so forth.
2. Most legal questions have a clear simple, clear cut answers.
3. Attempt to separate law and morality.
Example: Ebralinag et al. vs. Amolo et al. (the Jehovah’s Witness members refusal to
attend the flag ceremony case)