Assessment Of The Validity Of Legal Realism Philosophy Essay

Assessment Of The Validity Of legitimate Realism Philosophy EssayThe turn of the 20th century instigated the rejection of the cant move of John Austin, Jeremy Bentham, John Mill and David Hume. Realists sought to put in its place a much sociological account of the rectitude in defendion.2The three leading members of the American realist movement were Oliver Wendell Holmes Jnr,3Jerome coarse4and Karl N. Llewellyn.567PrinciplesRealists were abstracted with empirical questions such as attempting to identify the sociological and psychological incidentors influencing discriminatory decision making.8One could argue that their implicit conceptual loyalties were positivist in guess, as they did not reject the notion that courts may be trammel by hulks. However, realists did argue that the coquets exercise discretion much more ofttimes than is generally supposed.9Further they denied the naturalist and positivist views that Judges were influenced mainly by effectual rules, they (realists) attach greater significance to political and moral intuitions intimately the facts of a case.10II American RealistsA. Oliver Wendell Holmes JnrOliver Wendell Holmes Jnr (Holmes) could be called the intellectual and spiritual arrest of American Realism, and played a fundamental part in delivery about a changed attitude to effectual philosophy.11Holmes attempted to formulate a theory of law that was both responsive and stable for the changing nature of sophisticated life.1213He commenced with the fundamental question of liability What duty do human beings owe to whizz another?14Formalist legal doctrine held that there could be no liability without fault, that people should not be held responsible for acts that they did not grounds or over which they had no control.1516Holmes considered an alternative to this intent standard that If the act was voluntary, it is totally im frame guide that the detriment which followed from it was neither intended nor due to the disr egard of the actor (ie. strict liability).17Holmes argued that the proper object of the law was to publicize loving duties by giving individuals a second-rate chance to avoid hurt before being responsible for it it was not to instil individual faith through punishment.18Holmes believed in defining the law by reference to what the Court actually said it was, to consider what the law is, not what it ought to be.19He famously decl atomic number 18d The common law is not a brooding ubiquity in the sky, except the articulate voice of some sovereign or quasi sovereign that can be identified.20Further, Holmes introduced the bad man. As a moral skeptic, Holmes stated if you want to know the law and nothing else, you must(prenominal) look at it as a bad man, who c ares only for the material consequences which such knowledge enables him to predict.21Holmes defined the law in accordance with his pragmatic judicial philosophy. He believed that legal developments could be scientifically justified the line up science of law consisted in the establishment of its postulates from inside upon accurately mensurable social desires instead of tradition.22B. Jerome blusteringJerome domestic dog (Frank) has been set forth as the to the highest degree radical of the American realists.23Frank believed that there are two root words of realists, rule skeptics who regard legal uncertainty as residing principally in the write up rules of law and who seek to discover uniformities in actual judicial behaviour, and fact skeptics, who think that the unpredictability of court decisions resides primarily in the elusiveness of facts.24The former, Frank proposes, makes the skid of concentrating on appellate courts, whereas it is to the actions of trial courts that attention should be most directed.25Frank believed that for most realists, in their preoccupation with appellate courts, missed the important candidate of unpredictability in the judicial attend the elusiveness of fac ts.26Thus, the various prejudices of ventures and jurors27often crucially affect the outcome of a case.28Further, the main impetus of Franks coming was directed against the notion that certainty could be achieved through legal rules.29Frank believed this to be absurd.30Frank stressed that the text-book approach, which treats the law as no more than a collection of abstract rules, is grossly misleading and that much of legal uncertainty is inherent and not due to deliberate mystification.31We want the law to be certain, Frank stated, because of our deep need for security and safety which is autochthonous to children.32As a child places his/her trust in the wisdom of his/her father, so we seek in the law and other institutions a similarly hearty security.33C. Karl N. LlewellynKarl Lleyellyns (Llewellyn) most noteworthy contri neverthelession to realism is his structuralism, which perceives law as do certain fundamental functions.3435For Llewellyn, an institution is an organised activity which is built somewhat doing a job or a cluster of jobs. A major(ip) institutions job cluster is fundamental to the continuance of the society or radical in which it operates.36If society is to survive, certain basic needs must be satisfied, which engenders conflict which must be resolved.37Much of Llewellyns interest has been focussed on what Llewellyn calls the ways in which in various types of community the law jobs are actually carried out.38Law Jobs are the basic functions of the law, which, for Llewellyn, are two-fold to make group survival possible, but additionally, to quest for justice, efficiency and a richer life.39Law jobs are identified as being thedisposition of troubled casespreventive channelling and the change of direction of conduct and expectations so as to avoid troubleallocation of federal agency and the arrangement of procedures which legitimatize action as being authoritative straighten out organisation of the group or society as a entire so as to provide direction and incentive.40Llewellyn sees these law jobs as prevalent41and regards the most important job the law has is the disposition of troubled cases.42He puts forward his theory of them as a general framework for the functional analysis of law.43The first three law jobs describe bare grind away law, but out of them may emerge, although Llewellyn gives no indication how, the additional questing anatomy of the legal gear up.44Further, in addition to major institutions, there are excessively minor institutions such as crafts which consist of the skills held by a organic structure of specialists,45handed down from generation to generation by a process of education and practical example.46The coif of law is the practice of a chasten of crafts, and of these one of the most important is what is called the juristic method.47In the common law, says Llewellyn, the practice of the courts has fluctuated between two types of style which he names the Grand sprint and the Fo rmal Style. The Grand Style is based on an appeal to source and does not involve a following of precedent regard is gainful to the reputation of the Judge deciding the earlier case, and principle is consulted in order to ensure that precedent is not a mere verbal tool, but a generalisation which yields patent sense as well as order.48Policy, comes in for explicit examination and the Grand Style is also categorise by resort to what Llewellyn calls situation sense.49The Formal Style is not so concerned with social facts.50Its underlying notion is that the rules of law decide the cases and constitution is for the legislature not for the Courts.51This approach is authoritarian, formal and logical.52In the early nineteenth century, the Grand Style was employed, although, from the middle of the nineteenth century Llewellyn detected a shift towards the Formal Style.53However, by the middle of the twentieth century essay shows a shift back to the Grand Style, a development which Llewel lyn applauded by remarking as the best device ever invented by man for drying up that free-flowing spring of uncertainty, conflict between the seeming commands of the authorities and the felt demands of justice.54 trinity Critics of Legal RealismCritics have branded legal realists as anti-democratic and totalitarian.5556Their burden claim being, according to author Brian Leiter, that judges respond primarily to the remark of facts decisions are reached on the basis of a judicial consideration of what seems fair on the facts of the case, rather than on the basis of the applicable legal rule.57Further, Frank has been characterized as the prime representative of the radical tendency in American legal realism the realist who turned his back on legal rules and state them to be well nigh valueless.58This characterization became official, as it were, with the publication of prof Harts59(Hart) The Concept of Law in 1961.60In distinguishing formalism and realist rule-scepticism, Hart cr iticizes the rule-sceptics for focusing only on the function of rules in judicial decisions and ignoring those secondary rules which chitchat judicial and legislative power.61Hart found Franks work to be informative of the sceptical tradition in American legal realism,62although Frank himself baronial scepticism as to rules and scepticism as to facts, declaring himself to be a fact-sceptic.63Llewellyns work has also attracted criticism from a number of standpoints.64From insisting on the catholicity of his law jobs, Alan Hunt argues that he65stumbles into a major theoretical wishing of functionalism of imposing on disparate phenomena, from different societies and different historical periods, an a priori unity.66Further, William Twining (Twining) concedes that the Grand Style/Formal Style dichotomy has its drawbacks for it may be dangerous and misleading to pidgeon-hole judges or courts into styles as it is to lump jurists into schools.6768IV Support for Legal RealismHolmes was concerned with promoting a overbold and more experimental and constructive attitude to social life and thought, but avoided making any specific proposals as a programme to be realised.69Author, John Dewey praised Holmes on this very ground, because he had no social panaceas to pogy out, no fixed social programme, no code of fixed ends to be realised.70However, in Twinings view the main achievement of the realist movement was to concretise sociological ordinance.71The relationship between the realist movement and sociological jurisprudence is a strong one.72Its connections with psychology, anthropology, economics and sociology are clear.73Further, author Brian Leiter (Leiter) sought to remedy galore(postnominal) of the myths and misconceptions surrounding American realism.74Leiter challenges the view that realism is a75jurisprudential joke, a tissue of philosophical confusion.76Leiter maintains that it is time for legal philosophers to stop treating realism as a discredited histo rical antique, and start looking at the movement with the sympathetic eye it deserves.77Leiter believes that Harts sweeping dismissal of rule scepticism as the claim that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and predictions of them,78is an unjust misrepresentation of its members contributions to legal theory.79Thus, by demonstrating the limitations of a doctrinal account of law without a proper empirical investigation of the manner in which legal doctrine functions in society, the American realists unquestionably paved the way to the sociological approach to the law.80V Assessment of the validity of Legal RealismAmerican Legal Realism in most of its manifestation, albeit that it was sceptical, can be described as fairly mainstream, it was not radical or subversive, it simply asked one to examine the law a practical phenomenon, rather than as an idealised natural law or legal positivist edifice. It is an antidote to the as serting(prenominal) theory of law that asserts that law is determinate and certain and based on legal principles and the doctrine of precedent.Although, one may regard realism as shallow today, to assess the validity of legal realism, one must judge the pragmatic movement by its fruits, such as the impact it has had on legal education, the judicial process, legal anthropology, legal history, and legal sociology. In umpteen respects sociological jurisprudence is an outgrowth of legal realism. Sociological jurisprudence developed from the same impulse to study the way the law kit and boodle in an empirical or scientific experimental method.Further, realism indirectly engendered two movements Jurimetrics81and Behavouralism. These movements have taken over from where legal realism remaining off, for whilst the realists had some inspired ideas, developed a number of theoretical models, and urged us to exploit the social and technological science, these newer movements are firmly esta blished within the mainstream of the social sciences and use techniques associated with them freely and to valuable effect.82