Legal Realism


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Legal Realism

 

a major current in law in the United States, which arose during the 1920’s and significantly influenced the subsequent development of American legal thought. Its most important representatives were J. Gray, O. Holmes, J. Frank, K. Llewellyn, and E. Patterson.

Legal realists correctly identified the conservatism, rigidity, and backward-looking traditionalism of the American legal system, but in their demand for modification and adaptation of the legal system to changing conditions they came to deny erroneously the principles of stability of law and subordination of the judge to the law. They viewed a legal norm as nothing more than a legislator’s opinion of the law, which a judge could consider or ignore. They held that any legal precept, whether expressed in law or precedent, inevitably turns into something frozen and lagging behind the times. Law, they felt, should change constantly, which is possible if the court is a legislating force. The legal realists contended that the law is what the court decides it is.

Legal realists were divided into two groups on the question of what guides the court in reaching its decision. One group looked to behaviorism, pointing to the influence of external factors on the judge’s behavior; the other appealed to Freudian-ism, searching for the influence of psychological factors deep within the individual. In both cases the judge’s behavior, and thus the law he created, was seen as based exclusively on psychological factors. In this way, legal realism came to an oversimplified understanding of the law, and its nihilistic attitude toward stable legal norms and its demand for unlimited freedom of judicial discretion essentially negated the principle of legality.

REFERENCES

Ivanenko, O. F. Pravovaia ideologiia amerikanskoi burzhuazii. [Kazan] 1966.
Starchenko, A. A. Filosofiia prava i printsipy pravosudiia v SShA. Moscow, 1969.
Tumanov, V. A. Burzhuaznaia pravovaia ideologiia: K kritike uchenii o prave. Moscow, 1971.
References in periodicals archive ?
ECONOMIC PRAGMATISM AND THE NEED FOR A NEW LEGAL REALISM
(7) The slow movement away from First Amendment legal formalism, (8) with its trove of cliches, maxims, (9) special doctrines, and per se rules, (10) and toward legal realism, (11) promises to accelerate this trend.
Holmes's legal realism, which replaced formalism with pragmatic instrumentalism), the jurist would be able to access such order.
at 138-42; JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995); Waller W.
I certainly agree with Tamanaha that the great writers of historical jurisprudence deserve more attention than they are now receiving (a claim I would extend to a number of other "unfashionable" approaches to law, including Scandinavian legal realism, critical legal studies, and the European free law movement).
In this Section, I query his version of the school's history, beginning with his dismissal of legal realism and his claim that Eugene Rostow made the modern school "a bastion of the liberal tradition." (259) 1 also question his vision of legal education.
Although this mainstream always had "American" adherents as well, it came to be seen as "European" for its apparently greater proximity to the formalist tradition associated with the "old world" and its consequent distance from other "American" approaches, more closely derived from legal realism. While the latter can be said to have functioned as the mainstream in the teaching and academic discussion of IL in America, the "European" mainstream became the "practitioners' approach," and has been dominating legal procedure and jurisprudence--which is why it, and not the "American" mainstream, has tended to be the primary object of engagement for critical legal scholars.
(6.) Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, 15 Phil.
In the United States of America the research approaches of the social sciences first began to take on greater significance in connection with legal realism. Legal realism grew up in the nineteen thirties and forties, mainly in the USA, (93) and was characterised especially by the use of interdisciplinary methods borrowed from the social sciences.
Recent years have seen a strong revival of interest in Scandinavian Legal Realism generally and in Alf Ross's legal philosophy in particular.
today, Legal Realism is firmly ensconced in the way scholars discuss and

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