A report on Legal Realism

8/18/2019 A report on Legal Realism

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LEGAL REALISM


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• A theory that all law derives

from prevailing social interests andpublic policy According to thistheory! "udges consider not only

abstract rules! but also socialinterests and public policy whendeciding a case In this respect! legalrealism di#ers from legal formalism

• Either theory can be understood ina descriptive way! prescriptive way!or both wa s at once


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LEGAL REALISM AS A$IS%I&'%

()RIS%I' S'*++L


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• According to Edgar ,odenheimer and (ulius Stone! legal realism considersthe same factors that functional "urisprudence deals with in the studyof the nature of the law

• )nli-e functional "urisprudents! legalrealists are more concerned with the

operation of the legal order in terms ofe.periences and intere.periences forthe people in the legal ordering ofsociety


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• Legal realists are not merelyadvocates of certain tendencies of

the functional school of "urisprudence

• Legal Realism has three forms/

– Social Legal Realism – 'ritical Legal Realism

– 0sychological Legal Realism


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()$I'IAL LEGAL REALISM


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• %he theory of law styled "udicial legalrealism is characteri1ed by a healthy

s-epticism for the traditionalperspectives of law

• Li-e other aspects of the legal realistschool of "urisprudence! "udicial legalrealism doubts the positivist and

transcendentalist approaches to theproblem of the nature of the law interms of what it is and what it ought tobe


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S+'IAL LEGAL REALISM


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• It is the philosophy of education of (ohn $ewey that social legal realism

is based

• $ewey held that -nowledge is part of

life2e.periencing involving3intercourse of a living being with hisphysical and social environment4

• Learning becomes e#ective andade5uate to necessities of life only

when it is coordinated with


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• 3Life of the law is the sociale.perience of the people and tested

and guided by social e.perience4

• %he law cannot be understood apart

from its social environment but mustpro6t from social e.perience in thedevelopment of concepts! rules and

regulations


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A S+)R'E +7 LA8

• $ewey said that the source of law isthe social e.perience of all thepeople! not some transcendental

concept! since all that the people canappreciate well are their owne.periences


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, E&$ +7 0)R0+SE +7 LA8

• %he matter of the end or purpose of lawwould be outside the domain of thee.periences of the people

• %he end or purpose of the law is thedeliberate achievement of social contentment

• It remains social in nature for it is found inthe society of the individual members that

compose it as a whole


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' A00LI'A%I+& +7 LA8

• 8hat is called application is notsomething that happens after a ruleor statue is laid down but is a

necessary part of them

• 8hat the law is as a matter of fact

only by telling how it operates andwhat its e#ects are in and uponhuman activities that are going on


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'RI%I'AL LEGAL REALISM


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• %he critical legal studies movementwas formally organi1ed at the 7irst

'onference on 'ritical Legal Studiesheld at the )niv of 8inconsin


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• %he legal realism of this

"urisprudential movement is acriti5ue directed against thediscourse agenda and practices of

the dominant liberal paradigm suchas the ways in which the language ofimpartiality! ob"ective due processand value2free procedures which hideand conceal partisan operations ofpower and elite forms of socialvictimi1ation


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7or critical legal realism! the results of theerroneous tradition maintained by the

dominant liberal paradigm are/

9: %he State has become the organi1ationof the dominant liberal class

;: %he law has become the rationali1inginstrument of alienation and oppression

yielding concessions only when absolutelynecessary in order to avoid protests andcontradictions


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•


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• 7or critical legal realism ! the e5ualprotection of the law principle issimply not ade5uate to protect

individuals against collective tyrrany


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0S='*+L+G+'IAL

LEGAL REALISM


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• 0sychological legal realism in an approachto the study of the nature of the law

pursued by a small but vigorous group ofScandinavian "urisprudents

• It states that legal activities that is to say

legislation! e.ecution of statutes andad"udication of cases are essential to thesocial order! and to assure the legal

ordering of society the law and itscomponent "ural relations must be basedon the 3feeling for "ustice prevalent andcurrent within society4


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• %his is di#erent from the concept of "ustice propounded by the natural

law philosophers which indicates orpoints to the one and only solution

• 7or psychological legal realism! thelaw and its component system of

"ural relations are real because they

are social facts %he evaluation! then!of the law and "ural relations is nolonger to a.iological criteria but tothe feeling of what is good forsociet


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Documents

A report on Legal Realism