“ The life of the law
has not been logic, it has been experience.”- Oliver Wendell Holmes Jr. (1841-1935)
Legal
realism or realistic jurisprudence is created by several factors:
1.
Progressive movement in the 1920’s promoted an examination
of traditional values.
2.
Development of the behavioral science.
3.
National reporter system showed variety of
approaches to legal rules.
This thought disapproves the implementation of precedent
(forget what it means? Look my sociological jurisprudence posting). It doesn’t
use the sources of law formally, but it uses a concretely happened behavior of social
actors to judge a case. So that this thought automatically doesn’t trust the
legal certainty that only prioritizes how predictable a law is.
9 points of
departure from common to the realists (Llewellyn):
1.
Law in flux, law is momentary and keeps on
moving.
2.
Law as means to social ends and not as an end in
itself.
3.
Society in flux, law moves slower than society.
4.
The temporary divorce of ‘is’ and ‘ought’ for
the purpose of study.
5.
Distrust of traditional legal rules and concepts
as descriptive of what courts or people actually do.
6.
Distrust of the theory that traditionally
prescriptive rule.
7.
The belief in groping cases and legal situations
into narrower categories (micro analysis).
8.
An insistence of evaluating the law I terms of
its effects (evaluate the effects of law).
9.
An insistence on sustained and programmatic
attack on the problems of law.
The points
is pursed into 4 things:
1.
Realism is contrary to the formal law.
2.
Law is in flux and created by judges.
3.
Law is a means to an end. It serves social
purposes that can be examined.
4.
Judges are human.
There are two kinds of legal realism:
1.
America:
- Rule-skeptics, the rule of law concept is
just rhetorical of the rule of ruler.
- Fact-skeptics, each case is unique.
2.
Scandinavia: Metaphysic skeptics, that the law
is obeyed merely because of metaphysic aspect not because of the moral
obligation of an individual.
American legal realism is focusing
on lawyers’ behaviors in applying the law meanwhile, Scandinavia legal realism
is focusing on the individuals’ psychological reactions about law enforcement.
LAW=LAW IN REALITY (LIVING LAW)
So legislation is not the real law since it is just the
potential of the law.
According to legal
realism, judge is more appropriate to be called as making the law than finding
the law. Judge has to always determine which principle is better to be applied
in a case. Legal realism as it has been explained earlier is the opposite of legal
positivism. It doesn’t believe in law created by legislation (positive law), it
believes that every case is unique and individual therefore after the case has
been experienced it becomes the law (living law).
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