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LEGAL REALISM

• A theory that all law derives
from prevailing social interests and
public policy.  According to this
theory, judges consider not only
abstract rules, but also social
interests and public policy when
deciding a case.  In this respect, legal
realism differs from legal formalism.  
• Either theory can be understood in
a descriptive way, prescriptive way,
or both ways at once.

LEGAL REALISM AS A DISTINCT JURISTIC SCHOOL .

• According to Edgar Bodenheimer and Julius Stone. legal realism considers the same factors that functional jurisprudence deals with in the study of the nature of the law • Unlike functional jurisprudents. legal realists are more concerned with the operation of the legal order in terms of experiences and interexperiences for the people in the legal ordering of society .

• Legal realists are not merely advocates of certain tendencies of the functional school of jurisprudence • Legal Realism has three forms: – Social Legal Realism – Critical Legal Realism – Psychological Legal Realism .

JUDICIAL LEGAL REALISM .

• The theory of law styled judicial legal realism is characterized by a healthy skepticism for the traditional perspectives of law • Like other aspects of the legal realist school of jurisprudence. judicial legal realism doubts the positivist and transcendentalist approaches to the problem of the nature of the law in terms of what it is and what it ought to be. .

SOCIAL LEGAL REALISM .

• It is the philosophy of education of John Dewey that social legal realism is based • Dewey held that knowledge is part of life-experiencing involving “intercourse of a living being with his physical and social environment” • Learning becomes effective and adequate to necessities of life only when it is coordinated with .

• “Life of the law is the social experience of the people and tested and guided by social experience” • The law cannot be understood apart from its social environment but must profit from social experience in the development of concepts. rules and regulations .

SOURCE OF LAW • Dewey said that the source of law is the social experience of all the people. not some transcendental concept.A. since all that the people can appreciate well are their own experiences .

B. END OF PURPOSE OF LAW • The matter of the end or purpose of law would be outside the domain of the experiences of the people • The end or purpose of the law is the deliberate achievement of social contentment • It remains social in nature for it is found in the society of the individual members that compose it as a whole .

C. APPLICATION OF LAW • What is called application is not something that happens after a rule or statue is laid down but is a necessary part of them • What the law is as a matter of fact only by telling how it operates and what its effects are in and upon human activities that are going on .

CRITICAL LEGAL REALISM .

of Winconsin .• The critical legal studies movement was formally organized at the First Conference on Critical Legal Studies held at the Univ.

objective due process and value-free procedures which hide and conceal partisan operations of power and elite forms of social victimization .• The legal realism of this jurisprudential movement is a critique directed against the discourse agenda and practices of the dominant liberal paradigm such as the ways in which the language of impartiality.

the results of the erroneous tradition maintained by the dominant liberal paradigm are: 1) The State has become the organization of the dominant liberal class 2) The law has become the rationalizing instrument of alienation and oppression yielding concessions only when absolutely necessary in order to avoid protests and contradictions .For critical legal realism.

• 3) Social structure has become so divided and hierarchied that status and position therein are determined by irrelevant inequalities .

• For critical legal realism . the equal protection of the law principle is simply not adequate to protect individuals against collective tyrrany. .

PSYCHOLOGOCIAL LEGAL REALISM .

• Psychological legal realism in an approach to the study of the nature of the law pursued by a small but vigorous group of Scandinavian jurisprudents • It states that legal activities that is to say legislation. and to assure the legal ordering of society the law and its component jural relations must be based on the “feeling for justice prevalent and current within society” . execution of statutes and adjudication of cases are essential to the social order.

then. The evaluation. of the law and jural relations is no longer to axiological criteria but to the feeling of what is good for society. .• This is different from the concept of justice propounded by the natural law philosophers which indicates or points to the one and only solution • For psychological legal realism. the law and its component system of jural relations are real because they are social facts.