Realist Legal Model

40For this reason, epistemological realism comprises two different theses: the first is a descriptive thesis on current jurisprudence and the second is a prescriptive thesis relating to the scientific knowledge of law. 28 However, jurists and judges often disagree – at least diachronically – that many normative formulations are subject to competing interpretations; The existence (in the legal system) of an unspoken norm is in itself disputed, since such a norm has no official formulation. Different interpretations and constructions lead to different sets of norms, i.e. (partially) different legal systems. 31 Nevertheless, if this second conception of law, although still unsatisfactory, has the advantage of taking account of the fact that the law is not drawn up by the `legislators` alone. In legal practice, interpreters can be found in addition to legislative authorities, and the law arises, so to speak, from the interaction between legislators and interpreters. One cannot imagine the law even without interpreters (i.e. lawyers), just as one cannot imagine a religion without priests or theologians. Although the American right-wing realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily on a number of earlier thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to law were heavily criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had supported empirical science as a model for all intelligent research, arguing that law should be seen as a practical tool for promoting human well-being. Outside the realm of law, in areas such as economics and history, there has been a “general revolt against formalism,” a backlash in favor of more empirical ways of practicing philosophy and the humanities. [8] But by far the most important intellectual influence on legal realists has been the thinking of American jurist and Supreme Court Justice Oliver Wendell Holmes, Jr.

Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal thought.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] 45From the point of view of the legal realism set out in this paper, case law cannot consist of describing abstract entities such as duties or rights and/or the deontic properties of conduct (“It is mandatory that p”, “It is forbidden that q”) and others. And therefore, his sentences cannot be deontic propositions that repeat – repeat – as an echo the norms to which they refer.23.24 Well, this philosophical battle has been fought for many centuries. At its heart is the clash of two schools of jurisprudence known as “legal realism” and “legal formalism.” “Legal formalism” is probably what most people think of when they imagine how a judge thinks. “Legal formalism” is the idea that all political questions have been and must be posed by the legislator alone. Legal formalism is primarily about enforcing what the law actually says, not what it could or should say.

It is a theory that law is a set of rules and principles independent of other political and social institutions. This theory is the most famous advanced by Supreme Court Justice Antonin Scalia. Many critics have argued that realists have exaggerated the extent to which the law is “riddled” with loopholes, contradictions, etc. [17] The fact that most legal questions contain simple and clear answers that no lawyer or judge would dispute is difficult to reconcile with strong realistic claims of pervasive legal “vagueness.” Other critics, such as Ronald Dworkin and Lon Fuller, criticized right-wing realists for their attempt to sharply separate law and morality. [18] [19] 3 A “plausible” meaning is one that can be maintained with convincing arguments and accepted sociologically in a given legal culture. It has long been said, “A good lawyer knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first. In my experience, judges rarely make decisions based on particular relationships or preferences for a particular legal counsel or parties. Of course, this is a great generalization and I am sure it happens somewhere in the democratic world from time to time, but I firmly believe that it rarely happens. Judges, while human, regularly strive to be impartial towards individual litigants or criminal defendants. What is happening, however, is that judges, for the sake of “general fairness,” sometimes deviate from the strict application of the law when this does not seem to be “common sense.” 19Well, if a properly understood interpretation is not a cognitive activity, then the legal construction is a fortiori the result not of knowledge but of decision.

In fact, the legal construct amounts to a genuine creation of law and/or judicial law.11 51(iii) Description of the applicable law. To understand the law as a set of valid norms, the recognition and description of the law requires the identification of the standards that are actually applied by judges and other law enforcement bodies.26 (It is not necessary to say that when no particular standard is in force on a particular subject, case law can only take note of existing jurisprudential conflicts.) In contrast, “legal realism” is the concept that the law, as a male, malleable corpus of directives, should be applied creatively and liberally so that the law serves good public order and social interests. Legal realists see the legal world as a means of promoting justice and the protection of human rights. Legal realists often believe that judges should gradually develop and update the law because, as the closest branch that comes into contact with economic, social and technological realities, they should and can adapt the law accordingly to meet these needs. They often believe that judges should have broad discretion and decide issues on an individual basis because legislators are known to be slow or innate in responding to such pressures for change. Following Holmes and other critics of legal formalism, a number of iconoclastic jurists launched the legal realism movement in the 1920s and 30s. Among the leading right-wing realists were Karl Llewellyn, Jerome Frank, Herman Oliphant, Underhill Moore, Walter Wheeler Cook, Leon Green and Felix Cohen. Two American law schools, Yale and Columbia, were hotbeds of realist thinking. Realism was more of a mood than a coherent movement, but it is possible to identify a number of common themes. These include: 15In addition, lawyers, lawyers and judges are often the real source of vagueness in legal texts, in that they “place” indeterminacy in texts that would not pose any problem of interpretation in ordinary conversation. 42According to a classical view of analytic legal philosophy, jurisprudence is a metalinguistic enterprise that takes the language of the legislator as an object language.21 Unfortunately, this image of jurisprudence, while attractive, is somewhat misleading.

The language of legislators and the language of interpreters are subject to a continuous osmotic process. Legal language does not simply “carry” the language of legislators. On the contrary, jurists shape and enrich the subject of their study, like a violinist inserting apocryphal notes into the composition he performs. A theory of law and legal reasoning that emerged in the early decades of the twentieth century is largely characterized by the assertion that the law can be better understood by focusing on what judges actually do when they rule on cases, rather than what they say they do. [6] The central objective of legal realism was legal formalism: the classical view that judges do not make a law, but apply it mechanically by drawing logically unambiguous legal conclusions from a set of clear, coherent and comprehensive legal rules. American legal realism has been rightly described as “the most important indigenous jurisprudential movement in the United States during the twentieth century.” [7] Holmes is a preeminent figure in American legal thought for many reasons, but what realists drew most from Holmes was his famous predictive theory of law, his utilitarian approach to legal reasoning, and his “realist” insistence that judges in decisions do not simply draw 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 wrote: 37A preliminary distinction is acceptable. In the common language of continental jurisprudence, ordinary legal work is often referred to as “jurisprudence”, “jurisprudence” or “legal dogmatics”.