Legal Realism

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  • 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?
    • Jerome Frank
      • Even when rules are clear, the findings of judges cannot be predicted
        • The elusiveness of facts generates unpredictability and uncertainty
    • 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
    • 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
    • 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
    • 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
    • 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




This helps alot! 

thank you!

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