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.
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