Who Are Legal Realism

The rules that remain in force within this framework depend on the legal rules that the authorities consider relevant; such as legal measures, court decisions or social practices. The reality that a policy is moral, reasonable, effective, or reasonable is rarely enough to believe that it is truly the norm, and the possibility that it is unfair, reckless, wasteful, or reckless is never a sufficient reason to question it. Law, according to positivism, is a question of what has been presented (ordered, determined, exercised, accepted, etc.). Austin found the thesis “simple and impetuous.” While this is undoubtedly the dominant opinion among analytically oriented legal theorists, it is still the target of conflicting definitions, as well as frequent criticisms and misunderstandings. Moral realists contradict the principles of natural law. Legal realists argue that these cultures are historical and/or natural concepts and should be approached by a variety of psychological and sociocultural assumptions, with legal concepts perceived as determined by human behavior that should be evaluated empirically, rather than theoretical assumptions about the law. Legal realism is therefore at odds with most versions of legal positivism. Legal realism was largely a response to the legal formalism of the late 19th and early 20th centuries, which became the dominant style for most of the early 20th century. In her negative optimism, she managed to suspect formalistic expectations that judges actually do what they want to say, so that it is always claimed that “we are only realistic now”.

Realism, however, has struggled in its positive quest to find a reliable way to anticipate how judges will act, rather than relying on judges` explanations. Appellate judges, on the other hand, tend to focus on the most abstract principles of law. That is because, first, they have never met with the litigants. Second, they are not under the same pressure that court judges must act quickly to clarify a case. Third, the decisions they make are often cited by future cases as a precedent to guide them in applying the law, so thorough legal reasoning is needed to prevent injustices in future decisions. For these reasons, I believe I have seen more success in the courts of appeal, where the law favours my side over the facts. By realist legal theories I mean theories that: (1) define what the law is and how it functions in human cultures without sentimental or moralistic illusions (descriptive adequacy takes precedence over moralizing sermons); (2) to recognize that the law is rarely sufficient to justify the manner in which the courts decide all proceedings before them; and (3) indemnify justice and jurisprudence to the fullest extent of the law. By “legal positivism” I mean the interpretation of the essence of law that H.L.A. Hart most forcefully formulated in 1961, and that Joseph Raz evolved in the 1970s and 1980s, that (1) when there is a legal structure, there is a “rule of recognition” that defines the conditions under which norms are true right; and (2) the rule of law is nothing more than a complicated deception. This ensures that rules and legal frameworks are essentially based on the traditional procedures of civil servants. Legal positivism is a philosophy of thought for theoretical jurisprudence founded in the 18th and 19th centuries mainly by legal theorists such as Jeremy Bentham and John Austin.

Although Bentham and Austin formulated the philosophy of legal positivism, empiricism provided the theoretical basis for these innovations. The positivist argument does not suggest that the principles of law are incomprehensible, unimportant or ancillary to legal theory. This means that they do not decide whether there are rules or legal frameworks. Whether a country has a legal framework, it depends on the existence of such governance mechanisms, not on the extent to which it respects the principles of freedom, equality or the rule of law. As Hart explains in his theory, this completely ignores the idea that judges use laws to guide their decisions, rather than as evidence to determine their final judgments. Many critics have argued that realists have exaggerated the extent to which the law is “riddled” with loopholes, ambiguities, etc. The fact that most legal questions have simple and clear answers that no lawyer or judge would dispute is difficult to reconcile with the realistic bold arguments about the pervasive legal “vagueness.” Many writers, including Ronald Dworkin and Lon Fuller, have disappointed legal realists for their strenuous efforts to distinguish law from morality. The training and experience that an individual lawyer undergoes to prepare for the bailiff is aimed at evading this human condition and making him an objective thinker.

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