Legal Realism
- Created by: Launston
- Created on: 12-05-14 12:13
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- Legal Realism
- Eternal factors explain judicial decision making
- Legal indeterminacy
- The traditional view of law was that the existing legal doctrine supplied uniquely correct answers to legal problems - challenged this view
- At the time, the judicial task involved the mechanical, uncontroversial derivation of legal conclusions without regard to consequences
- Realists say legal reasoning is a myth
- Legal rules are not capable of yielding uniquely correct answers - general propositions cannot determine concrete cases
- The amount of rules means support can be formed for both sides of a dispute - precedents are interpreted differently
- How can there be one rule if this is the case?
- The amount of rules means support can be formed for both sides of a dispute - precedents are interpreted differently
- Legal rules are not capable of yielding uniquely correct answers - general propositions cannot determine concrete cases
- Realists say legal reasoning is a myth
- At the time, the judicial task involved the mechanical, uncontroversial derivation of legal conclusions without regard to consequences
- The traditional view of law was that the existing legal doctrine supplied uniquely correct answers to legal problems - challenged this view
- Jerome Frank
- Even when rules are clear, the findings of judges cannot be predicted
- The elusiveness of facts generates unpredictability and uncertainty
- Even when rules are clear, the findings of judges cannot be predicted
- Hart
- Realists are right about hard cases as legal rules cannot be easily applied
- However, most rules do have an agreed upon meaning - they are not all like the penumbra
- Realists are right about hard cases as legal rules cannot be easily applied
- Dworkin
- Where there is confusion about a statute or precedent, there are right and wrong ways to read them
- Example of woman in shock at seeing son in accident or after accident
- Realists: the precedent can be read broadly or narrowly
- Dworkin: depends on whether the moral principles in the early case also apply in the later one
- Realists: the precedent can be read broadly or narrowly
- Example of woman in shock at seeing son in accident or after accident
- Where there is confusion about a statute or precedent, there are right and wrong ways to read them
- Oliver Wendell Holmes
- Law should be looked at as the 'bad man' would look at it
- Something is a legal duty if it will be applied by the courts
- Law should be looked at as the 'bad man' would look at it
- Llewellyn
- Real Rules = what the court will do in a situation
- The sovereign law maker is therefore the judiciary and not the legislature as in the command theory
- Hart: if rights are predictions of the courts, this leaves out the normativity of law (guides to conduct)
- You cannot say the court was right because no appeal can be made - they may have omitted some law
- Hart: if rights are predictions of the courts, this leaves out the normativity of law (guides to conduct)
- The sovereign law maker is therefore the judiciary and not the legislature as in the command theory
- Real Rules = what the court will do in a situation
- Decision Making
- Judges cannot be criticised as departing from the accepted standards as these do not exist
- Judges have a gut instinct to a case and will simply find materials to support this to elude to established rules
- Llewellyn - different styles characterise the reasoning of common law judges
- Grand style: reasonable results which fit contemporary needs
- Formal style: deducing answers from pre-existing rules
- Grand style: reasonable results which fit contemporary needs
- Llewellyn - different styles characterise the reasoning of common law judges
- Judges have a gut instinct to a case and will simply find materials to support this to elude to established rules
- Judges cannot be criticised as departing from the accepted standards as these do not exist
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