Realism was treated as a conceptual claim for much of the late 20th century due to H. L. A. Hart`s misunderstanding of the theory. [5] Hart was an analytical legal philosopher who was interested in the conceptual analysis of concepts such as the notion 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 provided the necessary and sufficient conditions for the use of the term “law.” Today, legal theorists tend to recognize 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. 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] As a form of jurisprudence, legal realism is defined as focusing 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] For Holmes, rights are sought by the dominant forces of an era and a community. Everything that prevails is right, and therefore all political developments are good until they are no longer on the rise, and every regime is worthy until it is overthrown or disintegrated. The judges themselves, as well as the legislators, must to some extent reflect the dominant forces corresponding to the state`s position in history – understood not as a mere account of events, but as an inexorable process dictating its own moral categories. Holmes was therefore a progressive in this historical sense and not in his individual judgments, which could favor both repressive and progressive law. It can be said that Holmes` thought is reduced to a new “natural” law – a Darwinian process of triumph over inferior forms or progressivism as a theory of law. The essence of Holmes` legal realism—his pragmatism as well as a sinister confidence or acceptance of the progress of history—becomes clear by examining his insistence that courts must interpret and weigh rights. Nowhere is the importance of this balanced legal compensation clearer than in Holmes` jurisprudence on freedom of expression. In Schenck v.
In the United States,[4] Holmes explained the famous “clear and present danger” test as a pragmatic doctrine that avoided examining the content (i.e., nature) of language and focused only on its likely effects. Prior to the articulation of this doctrine, the content of the speech was considered of crucial constitutional importance. Although the American right-wing realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily on a number of earlier thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to law were heavily criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had supported empirical science as a model for all intelligent research, arguing that law should be seen as a practical tool for promoting human well-being. Outside the realm of law, in areas such as economics and history, there has been a “general revolt against formalism,” a backlash in favor of more empirical ways of practicing philosophy and the humanities. [8] But by far the most important intellectual influence on legal realists has been the thinking of American jurist and Supreme Court Justice Oliver Wendell Holmes, Jr. A theory of law and legal reasoning that emerged in the early decades of the twentieth century is largely characterized 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 classical 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 rightly described as “the most important indigenous jurisprudential movement in the United States during the twentieth century.” [7] According to Holmes, the actual justification for the decision was based on the “perceived necessities” of the time; The judges first decide the questions and then find the reasons.
There can therefore be no logical necessity or reasoning on the law, apart from calculations dictated by answers to questions of socio-economic benefit. Holmes argues that one of the problems with the common law before legal realism was that, in a sense, it was not theoretical enough, that is, it did not rely enough on utilitarian social and economic theory, as opposed to understanding eternal questions of justice. In fact, the judge makes his conclusions “on the basis of a belief in the practice of the community or class, or because of an opinion on politics. Such issues are really battlefields where the means to make decisions that are supposed to be good forever are not there, and where the decision can do nothing more than embody the preference of a particular body at a particular time and place. Their law is reviewed if there is a slight change in the habits of public opinion. No concrete proposal can be taken for granted. [3] American legal realists believe that jurisprudence is more than the “mechanical” application of well-known legal principles to the undisputed finding of fact in accordance with the arguments of legal formalism.