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. 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. This chapter challenges two widely held views on the relationship between theories of jurisprudence known as «legal realism» and «legal positivism.» The first is that the two doctrines are essentially philosophically or conceptually incompatible or opposed. The second is that legal realism is a jurisprudential joke, a network of philosophical confusions – confusions that the main positivist of the 20th century, H. L. A.

Hart, more than thirty years ago in the famous Chapter VII («Formalism and skepticism of rules») of the concept of law. The two views are related in the following way: Hart sealed the grave of realism as a serious legal theory, giving credence to the idea that realism and positivism were opposing doctrines. The chapter denies both views by careful examination of Hart`s influential criticism. Realism was treated as a conceptual claim for much of the late 20th century due to H. L. A. Hart`s misunderstanding of the theory. [5] Hart was an analytical legal philosopher who was interested in the conceptual analysis of concepts such as the notion of «law.» This included identifying the necessary and sufficient conditions for the use of the term «law». When realists like Oliver Wendell Holmes pointed out that those involved in the legal system generally wanted to know what was going to happen, Hart assumed that they provided the necessary and sufficient conditions for the use of the term «law.» Today, legal theorists tend to recognize that realists and conceptual jurists were interested in different issues.

Realists are interested in methods to predict judges more accurately, while conceptual lawyers are interested in the correct use of legal terms. 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 writes: Next, Holmes presents his most important and influential argument, the theory of the «bad man`s right»: «If we take the point of view of our friend, the bad man, we will find that he cares neither with morality nor with 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. 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. 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. 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] American legal realists believe that jurisprudence is more than the «mechanical» application of well-known legal principles to the undisputed finding of fact in accordance with the 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. Following Holmes and other critics of legal formalism, a number of iconoclastic jurists launched the legal realism movement in the 1920s and 30s. Among the leading right-wing realists were Karl Llewellyn, Jerome Frank, Herman Oliphant, Underhill Moore, Walter Wheeler Cook, Leon Green and Felix Cohen.

Two American law schools, Yale and Columbia, were hotbeds of realist thinking. Realism was more of a mood than a coherent movement, but it is possible to identify a number of common themes. 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. A theory of law and legal reasoning that emerged in the early decades of the twentieth century is largely characterized by the assertion that the law can be better understood by focusing on what judges actually do when they rule on cases, rather than what they say they do. [6] The central objective of legal realism was legal formalism: the classical view that judges do not make a law, but apply it mechanically by drawing logically unambiguous legal conclusions from a set of clear, coherent and comprehensive legal rules.

American legal realism has been rightly described as «the most important indigenous jurisprudential movement in the United States during the twentieth century.» [7] As a form of jurisprudence, legal realism is defined by emphasizing 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] 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.

Although the American right-wing realist movement first emerged as a cohesive intellectual force in the 1920s, it drew heavily on a number of earlier thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to law were heavily criticized by thinkers such as Roscoe Pound, John Chipman Gray, and Benjamin Cardozo.