Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute « formalistic » or « mechanical » notions of law and legal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] In my experience as a relatively young lawyer, I have sometimes been frustrated to find that most trial judges resemble legal realists rather than legal formalists. I sincerely believe that to be true, but it may not be the judges who simply prefer one legal philosophy to another. Rather, I think it stems from practical needs that exist in today`s courtrooms. Moral realists contradict the principles of natural law. Legal realists argue that these cultures are historical and/or natural concepts and should be approached by a variety of psychological and sociocultural assumptions, with legal concepts perceived as determined by human behavior that should be evaluated empirically, rather than theoretical assumptions about the law. Legal realism is therefore at odds with most versions of legal positivism. Legal realism was largely a response to the legal formalism of the late 19th and early 20th centuries, which became the dominant style for most of the early 20th century. In her negative optimism, she managed to suspect formalistic expectations that judges actually do what they want to say, so that it is always claimed that « we are only realistic now ». Realism, however, has struggled in its positive quest to find a reliable way to anticipate how judges will act, rather than relying on judges` explanations.
Realism was treated as a conceptual claim for much of the late 20th century because of H.L.A. Hart`s misunderstanding of 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. There are links between legal realism and legal positivism. Legal experts argue that all legislation is a good rule because it is socially dependent. Therefore, the rule is incomplete: there are legal issues that cannot be regulated by law alone. Yet legal realists tend to believe that all laws are good, arguing that positive law underdetermines judicial decisions, at least in appellate proceedings. My point is that there is a divergence in their respective approaches to sources of law after such logical errors have been ruled out. Positivists believe that some branches of legislation are binding, at least for judges. Legal realists argue that other documents are merely permissive: only national laws and affairs sometimes no longer provide for jurisdiction, for example an international legal norm.
Compared to the more common origins of indeterminacy known to positivists and realists, this tends to understand why realists believe that the rule governs too badly in disputes, and why questions of strategy and interest sometimes undermine it. 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. » « Legal formalism » is probably what most people think of when they imagine how a judge thinks. « Legal formalism » is the idea that all political questions have been and must be posed by the legislator alone. Legal formalism is primarily about enforcing what the law actually says, not what it could or should say. It is a theory that law is a set of rules and principles independent of other political and social institutions. This theory is the most famous advanced by Supreme Court Justice Antonin Scalia. The law does not always follow the criteria according to which it is properly evaluated. Politics should be honest, but perhaps it is not; he should maintain the greatest good, but sometimes he does not; It must preserve human values, but it can struggle miserably. This is what we would call the principle of moral fallibility. The argument is correct, but it is not the only property of positivism. The difference between these conditional and absolute choices is all that the philosophy of natural law requires to realize the concept of fallibility.
It is often argued that positivism offers a more stable view of the fallibility of justice, because when we realize that it is a collective creation, we are less inclined to pay undue tribute to it and more able to indulge in a clear rational evaluation of the rule. Nevertheless, positivism is often more credibly associated with the belief that legal theory is or should be value-neutral. Of course, legal positivism is not an « evaluation of its subject, » that is, an evaluation of menstruation. Thus, the suggestion that the life of law is based on social reality does not force us to believe that it is a positive thing. Of course, there is a context in which each definition is filled with meaning. It selects and systematizes only a portion of the infinite number of facts on its subject. 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.