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 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. necessary] Forecasting Use of the next time series level of monthly sales for an individual Although many aspects of legal realism today are considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal reasoning. 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] 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. 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. 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.” Because of their worthless approach, legal realists oppose the traditions of natural law. Legal realists argue that these traditions are historical and/or social phenomena and that they should be explained by a variety of psychological and sociological assumptions, with legal phenomena being considered determined by human behavior, which should be studied empirically, rather than theoretical assumptions about law. As a result, legal realism contrasts with most versions of legal positivism. 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] The life of law was not logical: it was experience. The perceived necessities of the time, the prevailing moral and political theories, the intuitions of public policy, whether professive or unconscious, and even the prejudices that judges share with their fellows, had much more to do than the syllogism in determining the rules by which people should be governed. The law embodies the history of a nation`s development over many centuries, and it cannot be treated as containing only the axioms and conclusions of a mathematics book. [9] As a form of jurisprudence, legal realism is defined by emphasizing 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] 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 case decisions 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: Many critics have claimed 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 the strong realistic assertions 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] Legal realism is associated with American jurisprudence of the 1920s and 1930s, particularly among federal judges[1] and lawyers in the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant, and Warren Seavey,[1] many of whom were associated with Yale Law School. As Keith Bybee argues, “Legal realism has exposed the role of politics in judicial decision-making, challenging conventional efforts to anchor the judiciary on a solid and impartial basis.” [2] Contemporary jurists working in the tradition of law and society have broadened the foundations of legal realism to postulate what has been called the new legal realism.
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] Following Holmes and other critics of legal formalism, a number of iconoclastic jurists launched the legal realism movement in the 1920s and 30s.
