A theory of law and legal reasoning that emerged in the early decades of the twentieth century is characterized largely 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 classic 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 aptly described as “the most important indigenous jurisprudential movement in the United States during the twentieth century.” [7] Holmes is a prominent figure in American legal thought for many reasons, but what realists have drawn most from Holmes is his famous predictive theory of law, his utilitarian approach to legal reasoning, and his “realist” insistence that judges do not simply draw legal conclusions with relentless and mechanical logic when deciding cases. but are influenced by ideas of equity. Public order, prejudice and experience. In the first paragraph of The Common Law, he wrote: Supported by Holmes and other critics of legal formalism, a number of iconoclastic jurists launched the legal realism movement in the 1920s and 30s. Major legal realists included 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. 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 governmental mechanisms, not on the extent to which it respects the principles of freedom, equality or the rule of law. Legal realism was primarily a reaction to the legal formalism of the late 19th and early 20th centuries and was the predominant approach for much of the early 20th century. With her negative effort, she managed to challenge the formalistic assumptions that judges always did what they said, so that it is often said that “we are all realistic now.” However, realism failed in its positive quest to find a better way to predict how judges would behave than to rely on the reasons given by judges. Legal realism is a naturalistic philosophy of law. It is the perspective that jurisprudence should imitate scientific methods, that is, rely on empirical evidence. Hypotheses must be tested by global knowledge. Legal realists conclude that jurisprudence can analyze law only using the worthless tools of science, rather than through a metaphysical examination of the nature and purpose of law, which is distinct and distinct from law. Legal realism, in effect, says that the law cannot be isolated from its implementation and cannot be easily interpreted. This shows the importance of recognizing the considerations involved in judicial decision-making by identifying the nature of the right in areas such as judicial decisions rendered and their respect or rejection of precedent and the doctrine of final judgment.
Legal realism reached its peak from the 1920s to the 1940s. In the 1950s, legal realism was largely supplanted by the legal process movement, which viewed law as a process of “reasoned elaboration” and asserted that invocations of “legislative objectives” 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. American legal realists believe that jurisprudence is more than the “mechanical” application of well-known legal principles to undisputed findings of fact consistent with the arguments of legal formalism. Some realists believe that one can never be sure that the facts and law identified in the judge`s reasoning were the real reasons for the verdict, while other realists accept that one can often rely on a judge`s reasons, but not always. Realists believe that the legal principles that legal formalism treats as non-controversial actually hide controversial political and moral decisions. By realistic legal theories, I mean theories that: (1) define what the law is and how it works in human cultures without sentimental or moralizing illusions (descriptive relevance takes precedence over moralizing sermons); (2) accept that the law is rarely sufficient to justify the manner in which the courts decide all the proceedings before them; and (3) to compensate justice and jurisprudence within the limits of the law. By “legal positivism” I mean the interpretation of the essence of the law that H.L.A.
Hart formulated most strongly in 1961 and developed by Joseph Raz in the 1970s and 1980s, that (1) where there is a legal structure, there is a “rule of recognition” that defines the conditions under which norms are the true law; 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. Realist theory had reached its peak from the 1920s to the 1940s. Legal realism was completely replaced in the 1950s by the movement of legal processes, which viewed the law as a process of “reasoned elaboration” and asserted that appeals to “legislative objectives” and other established legal norms and standards can provide an accurate answer to the most anticipated legal questions. The British legal thinker H.H. Hart, in his 1961 book The Concept of Law, began with what other academics considered a “decisive blow” to legal rationality, questioning the statistical philosophy of law that OW Holmes adopted from other realists. Hart points out that if a law is simply a predictor of what the courts will do, a judge assessing the legal facts of a dispute before him is actually thinking, “Why should I resolve this issue?” Realism was used for much of the late 20th century. == References ===== External links ===* Official website Hart`s misunderstanding of theory. [5] Hart was an analytical legal philosopher interested in the conceptual analysis of concepts such as the concept of “law.” This included identifying the necessary and sufficient conditions for the use of the term “law”. When realists like Oliver Wendell Holmes pointed out that those involved in the legal system generally wanted to know what was going to happen, Hart assumed that they offered the necessary and sufficient conditions for the use of the term “law.” Nowadays, legal theorists tend to realize that realists and conceptual jurists were interested in different issues.
Realists are interested in methods to predict judges more accurately, while conceptual lawyers are interested in the correct use of legal terms. The training and experience that an individual lawyer undergoes to prepare for the bailiff aims to move away from this human condition and make it an objective thinker. The abstract quality society that attempts to teach lawyers and judges is called the “cognitive” decision-making process. Most individuals are usually “affective” thinkers. It simply means that most people use the right side of their brain to make decisions.