Assessment Of The Validity Of Legal Realism Philosophy Essay

Assessment Of The Validity Of Legal naturalism Philosophy EssayThe turn of the twentieth century instigated the rejection of the formalism movement of John Austin, Jeremy Bentham, John Mill and David Hume. Realists sought to put in its place a more sociological account of the uprightness in action.2The three leading members of the Ameri stick out realist movement were Oliver Wendell Holmes Jnr,3Jerome Frank4and Karl N. Llewellyn.567PrinciplesRealists were preoccupied with empirical spare-time activityions such as attempting to identify the sociological and psychological factors influencing discriminatory decision making.8One could argue that their implicit conceptual loyalties were positivist in theory, as they did not reject the notion that courts may be constrained by rules. However, realists did argue that the Courts exercise discretion much more often than is generally supposed.9Further they denied the naturalist and positivist views that Judges were influenced mainly by lega l rules, they (realists) link greater signifi arsece to political and moral intuitions about the facts of a case.10II American RealistsA. Oliver Wendell Holmes JnrOliver Wendell Holmes Jnr (Holmes) could be called the intellectual and spiritual father of American Realism, and played a fundamental part in bringing about a changed attitude to law.11Holmes attempted to formulate a theory of law that was both responsive and steadfast for the changing nature of modern life.1213He commenced with the fundamental question of liability What duty do human beings owe to one another?14 statuesqueist legal doctrine held that thither could be no liability without fault, that people should not be held responsible for acts that they did not cause or over which they had no control.1516Holmes considered an alternative to this intent bill that If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor (ie. strict liability).17Holmes argued that the proper object of the law was to publicize brotherly duties by giving individuals a fair chance to overturn harm before being responsible for it it was not to instil individual morality done 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 declared The commonality law is not a brooding omnipresence in the sky, but 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 look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.21Holmes defined the law in accordance with his hard-nosed judicial philosophy. He believed that legal developments could be scientifically justified the true science of law consisted in the establishment of its postulates from within upon accurately measured social desires instead of tradition.22B. Jerome FrankJerome Frank (Frank) has been described as the most radical of the American realists.23Frank believed that there are two groups of realists, rule skeptics who regard legal unforegone conclusion as residing principally in the physical composition 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 mistake 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 aspect of unpredictability in the judicial process the elusiveness of facts.26Thus, the various prejudices of judges and jurors27often cruciall y affect the outcome of a case.28Further, the main impetus of Franks attack 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 system and safety which is endemic 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 too comforting security.33C. Karl N. LlewellynKarl Ll nerve centrellyns (Llewellyn) most noteworthy contribution to realism is his functionalism, which perceives law as serving certain fundamental functions.3435For Llewellyn, an institution is an organised activity which is built virtually doing a job or a cluster of jobs. A m ajor institutions job cluster is fundamental to the continuance of the society or group 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 luxuriant casespreventive channelling and the reorientation of conduct and expectations so as to avoid troubleallocation of authority and the arrangement of procedures which legitimatize action as being authoritativenet organisation of the group or society as a whole so as to provide direction and incentive.40Llewellyn sees these law jobs as universal41and regards the most i mportant 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 bone law, but out of them may emerge, although Llewellyn gives no indication how, the additional questing phase of the legal order.44Further, in addition to major institutions, there are likewise small(a) institutions such as crafts which consist of the skills held by a body of specialists,45handed down from generation to generation by a process of education and realistic example.46The practice of law is the practice of a set 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 port which he names the Grand Style and the Formal Style. The Grand Style is based on an appeal to reason and does not involve a pursual of precedent regard is paid to the rep utation 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 categorised 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 polity 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 pitch towards the Formal Style.53However, by the middle of the twentieth century evidence shows a shift back to the Grand Style, a development which Llewellyn applauded by remarking as the dress hat device ever invented by man for drying up that free-flowing spring of uncertainty, conflict b etween the seeming commands of the authorities and the felt demands of justice.54III Critics of Legal RealismCritics harbor branded legal realists as anti-democratic and totalitarian.5556Their core claim being, according to author Brian Leiter, that judges respond primarily to the stimulus 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 determination in American legal realism the realist who turned his back on legal rules and declared them to be well nigh valueless.58This characterization became official, as it were, with the issuance of Professor Harts59(Hart) The Concept of Law in 1961.60In distinguishing formalism and realist rule- skepticism, Hart criticizes the rule-sceptics for focussing only on the function of rules in judicial decisions and ignoring those secondary ru les which gossip judicial and legislative power.61Hart found Franks work to be illustrative of the sceptical tradition in American legal realism,62although Frank himself distinguished 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 universality of his law jobs, Alan run argues that he65stumbles into a major theoretical deficiency 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 new 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 dole out, no persistent 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 jurisprudence.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 many of the myths and misconceptions surrounding American realism.74Leiter challenges the view that realism is a75jurisprudential joke, a meander of philosophical confusion.76Leiter maintains that it is time for legal philosophers to stop treating realism as a discredited historical antique, and start looking at the movement with the sympathetic eye it deserves.77Leiter believes that Harts sweeping dismis sal 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 unfair 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 emphatically 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 declaratory 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 many respects sociological jurisprudence is an outgrowth of legal realism. Sociological jurisprudence developed from the same impulse to study the way the law works in an empirical or scientific experimental method.Further, realism indirectly engendered two movements Jurimetrics81and Behavouralism. These movements have taken over from where legal realism left 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 established within the mainstream of the social sciences and use techniques associated with them freely and to valuable effect.82