Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal thought. It is now widely accepted that law is not and cannot be an exact science, and that it is important to look at what judges actually do when deciding cases, not just what they say they do. As evidenced by ongoing debates about legal activism and judicial deference, legal scholars continue to disagree on when it is legitimate for judges to “make laws” rather than simply “obey” or “apply” existing law. [20] But few would disagree with the realists` fundamental assertion that judges (for better or worse) are often heavily influenced by their political beliefs, personal values, individual personalities, and other extrajudicial factors. [21] Although the American legal realist movement first emerged as a cohesive intellectual force in the 1920s, it relied heavily on a number of opinion leaders 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.
Nglish: Translating Realism for Spanish Speakers As a form of jurisprudence, legal realism is defined by its emphasis on the law as it actually exists in practice. and not as it exists in the 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] The legal theory and 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] Legal realism is a naturalistic approach to law. It was felt that jurisprudence should imitate the methods of the natural sciences, i.e. be based on empirical evidence. Hypotheses must be tested against observations of the world. [ref. needed] 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 the strong realistic assertions 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] Because of their worthless approach, legal realists oppose the traditions of natural law. Legal realists argue that these traditions are historical and/or social phenomena and that they should be explained by a variety of psychological and sociological assumptions, with legal phenomena being considered determined by human behavior, which should be studied empirically, rather than theoretical assumptions about law. As a result, legal realism contrasts with most versions of legal positivism. 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. Realism continued for much of the late 20th century thanks to H. L. A. Hart`s misunderstanding of theory as a conceptual claim. [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. Legal realism is associated with American jurisprudence of the 1920s and 1930s, especially among federal judges[1] and lawyers in the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant, and Warren Seavey,[1] many of whom were associated with Yale Law School. As Keith Bybee argues, “Legal realism has exposed the role of politics in judicial decision-making, challenging conventional efforts to anchor the judiciary on a solid and impartial basis.” [2] Contemporary jurists working in the tradition of law and society have broadened the foundations of legal realism to postulate what has been called the new legal realism. 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.