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When Is Legal Realism Used

by admin on 11. Dezember 2022 No comments

Many critics have argued 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 strong realistic claims 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] Holmes is a prominent 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 do not simply infer 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 writes: Legal realism can also be described as a naturalistic approach to law. Do not follow traditional legal principles, but question these traditional principles. Legal realism asserts that courts can logically and objectively apply the rules and principles that guide them. Following Holmes and other critics of legal formalism, a number of iconoclastic jurists launched the legal realism movement in the 1920s and 30s. Among the leading right-wing realists were 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 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. 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. As a form of jurisprudence, legal realism is defined by the emphasis on 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] It is rare for the law to completely favour one side over the other. There is usually a legal argument that must be made on both sides of a particular issue. However, the law generally leans in one direction, and I have found that the legal force of a case is less important than the given facts of the case. In my experience with local judges, it is often the facts that determine the outcome of cases, not the law; That is, I have had many situations and cases where the law is stacked on my side to some extent and my client has always received an unfavorable outcome. Conversely, I scratched my head on the results where I was disadvantaged by the law, but I got a victory for my client on the basis of favorable facts.

I think it is because most trial judges are legally realistic. It has long been said, „A good lawyer knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first. In my experience, judges rarely make decisions based on particular relationships or preferences for a particular legal counsel or parties. Of course, this is a great generalization and I am sure it happens somewhere in the democratic world from time to time, but I firmly believe that it rarely happens. Judges, while human, regularly strive to be impartial towards individual litigants or criminal defendants. What is happening, however, is that judges, for the sake of „general fairness,“ sometimes deviate from the strict application of the law when this does not seem to be „common sense.“ American legal realists believe that jurisprudence is more than the „mechanical“ application of well-known legal principles to undisputed findings of fact consistent with 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 motives, but not always. Realists believe that the legal principles that legal formalism treats as unchallenged actually hide controversial political and moral choices. 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.“ Well, this philosophical battle has been fought for many centuries. At its heart is the clash of two schools of jurisprudence known as „legal realism“ and „legal formalism.“ .

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