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. 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. Realists believe that the legal principles that legal formalism treats as unchallenged actually hide controversial political and moral choices. 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. 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] 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. By realist legal theories I mean theories that: (1) define what the law is and how it functions in human cultures without sentimental or moralistic illusions (descriptive adequacy takes precedence over moralizing sermons); (2) to recognize that the law is rarely sufficient to justify the manner in which the courts decide all proceedings before them; and (3) indemnify justice and jurisprudence to the fullest extent of the law. By “legal positivism” I mean the interpretation of the essence of law that H.L.A.
Hart most forcefully formulated in 1961, and that Joseph Raz evolved in the 1970s and 1980s, that (1) when there is a legal structure, there is a “rule of recognition” that defines the conditions under which norms are true right; and (2) the rule of law is nothing more than a complicated deception. This ensures that rules and legal frameworks are essentially based on the traditional procedures of civil servants. This article was written by Vividh Jain, a student at Nirma University Law Institute. In this article, the author challenges two general views on the relationship between the theories of so-called “legal realism” and “legal positivism” in jurisprudence. 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. Legal realism is characterized as a type of jurisprudence by emphasizing the law as it currently appears in reality, rather than how it works in books. To this end, it has focused on the conduct of judges and the conditions under which this conduct affects judicial decision-making processes.
As Karl Llewellyn says: “Judges uphold judgments; Judges are men; They have a human history as men. Thus, law was not in an abstract domain with universal laws or values, but was inseparable from human behavior and the ability of judges to decide the law. To understand the decisions and actions of legal actors, legal realists have turned to social science ideas to understand the human relationships and behaviors that have resulted in a particular legal outcome. 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] The training and experience that an individual lawyer undergoes in preparation for the bailiff is intended to escape this human condition and make it an objective thinker. The quality abstract society that lawyers and judges try to teach is called “cognitive” decision-making. Most individuals are usually “affective” thinkers. It simply means that most people use the right side of their brain to make decisions.
These people tend to be emotional, creative, and interested in people rather than legal issues. They often see hearings and trials as human tragedies rather than abstract issues. Cognitive thinkers, on the other hand, are supposed to argue with the left side of their brains. This thinker is more interested in abstract issues than people, likes to wait and not decide until all the evidence is received, and uses inductive reasoning to make a final logical decision. That being said, no one is completely “cognitive” or “affective”; On the contrary, each person is a combination of both, and a continuum is probably a better perspective than a strict answer to the question of what kind of thinker is a particular person. For obvious reasons, most judges tend to be more cognitive thinkers; Again, however, it is a matter of degree. Each judge has a different mix of the two types of thought patterns and can be influenced by a variety of factors when making a decision based on who he or she is. Legal realists believe that jurisprudence should examine law only through the worthless methods of the natural sciences, rather than through philosophical inquiries into the nature and meaning of law, which are separate and distinct from law as it is actually practiced.
In fact, legal realism claims that the law cannot be separated from its application, nor can it be understood outside its application. As such, legal realism focuses on the law as it actually exists, not the law as it should be. By situating the importance of law in areas such as judges` legal opinions and their respect for or rejection of past precedents and the doctrine of stare decisis, he emphasizes the importance of understanding the factors involved in judicial decision-making. 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.