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What`s a Legal Realism

Posted 5. Dezember 2022 by Logistik-Express in Allgemein

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.” 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. Holmes is a prominent figure in American legal thought for many reasons, but what realists have drawn most from Holmes is his famous predictive theory of law, his utilitarian approach to legal reasoning, and his “realist” insistence that judges in deciding cases not simply infer legal conclusions with relentless and mechanical logic.

but are influenced by ideas of equity. Public order, prejudice and experience. In the first paragraph of The Common Law, he wrote: It is rare for the law to completely favour one side over the other. There is usually a legal argument that must be made on both sides of a particular issue. However, the law generally leans in one direction, and I have found that the legal force of a case is less important than the given facts of the case. In my experience with local judges, it is often the facts that determine the outcome of cases, not the law; That is, I have had many situations and cases where the law is stacked on my side to some extent and my client has always received an unfavorable outcome. Conversely, I scratched my head on the results where I was disadvantaged by the law, but I got a victory for my client on the basis of favorable facts. I think it is because most trial judges are legally realistic. This school of thought sought to use the common law to resolve disputes in a practical manner.

A judge was expected to conduct a four-step procedure when issuing an opinion. Legal realism can also be described as a naturalistic approach to law. Do not follow traditional legal principles, but question these traditional principles. Legal realism asserts that courts can logically and objectively apply the rules and principles that guide them. As a form of jurisprudence, legal realism is defined by the emphasis 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] 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 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] Legal realism was primarily a reaction to the legal formalism of the late 19th and early 20th centuries and was the dominant approach for much of the early 20th century. With her negative willingness to challenge formalistic assumptions, she managed to ensure that judges always do what they said, so that it is often said that “we are all realistic now”. Realism, however, has failed in its positive quest to find a better way to predict how judges would behave than relying on the reasons given by judges. In my experience as a relatively young lawyer, I have sometimes been frustrated to find that most trial judges look like 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.

Next, Holmes presents his most important and influential argument, the theory of the “bad man” right: “If we adopt the view of our friend, the evil man, we will find that he cares neither about morality nor the logic of the law.” For the wicked man, “legal duty” means only “a prophecy that if he does certain things, he will face unpleasant consequences of imprisonment or coercive payment.” [10] The villain does not care about legal theorization and only cares about practical consequences. In the spirit of pragmatism, Holmes suggests that this is a useful way to reveal the true meaning of legal concepts. It has long been said, “A good lawyer knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first.

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