Legal Realism

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  • Created by: Launston
  • Created on: 12-05-14 15:10

Legal Indeterminacy

The traditional view of law is that existing legal doctrines can supply uniquely correct answers to every legal problem, and the judicial task involved the mechanical, uncontroversial derivation of legal conclusions without regard to their consequences. Legal Realists wish to challenge these traditional views, and they claim legal reasoning is purely a myth.

Legal rules are not capable of yielding uniquely correct answers; general propositions cannot determine concrete cases. Plus the amount of rules means that there will generall be equal support for both sides in a legal dispute and precedents are capable of being interpreted in numerous different ways, if this is the case, how can there only be one answer to issues which comes from the legal doctrine?

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Jerome Frank

Even where legal rules are clear, the findings of judges can never be predicted, they do not operate as machines which are likely to generate the same answers each time. The elusiveness of facts yields unpredictability and uncertainty, so it is impossible to apply just one set of rules to numerous different facts in each case.

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Agrees with legal realists that in some situations legal rules cannot offer answers, and cites the example of so-called 'hard' cases.

However, does believe that rules can have an agreed upon meaning and they are not all like the penumbra.

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Dworkin also disagrees with the legal realists way of thinking. He claims that, even if there is ambiguity surrounding a statute or a precedent, there is still right and wrong ways to read them.

He uses the example of an Act applying to shock received at the scene of a crime. If a mother sees her son in hospital and then goes into shock, will this still be covered by the Act considering it is happening after the accident has happened?

Realists say that there is broad and narrow ways to read the precedent, and the outcome of the case would depend on which way the judges choose to read it.

Dworkin says it depends upon whether the moral principles in the earlier case apply in the later one also.

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Oliver Wendell-Holmes

To understand fully what comprises laws, it is necessary to look at law in the way that the 'bad man' does, ie. he wants to know what will send him to prison. Therefore, we can say that something is a legal duty if, and only if, the court will enforce it.

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Distinguishes between real rules and paper rules. Real rules are what the court will do in a given situation. He believes that the sovereign law maker is therefore the judiciary and not the legislature as Austin suggested in his command theory. 

There are criticisms to this approach. If rules are based purely on predictions about what the court will do in a given situation, this entirely excludes the nomativity of law, which refers to law as being a guide to conduct. 

Llewellyn's approach also means that, if no appeal can be made from a court's decision, you cannot say the court was wrong as that was the rule which was actually applied. Hart disputes this; the court can be wrong, there may be some parts of law which they did not apply in the case.

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Decision Making

The realists believe that judges cannot therefore be criticised for departing from standards of judicial decision making as these standards do not actually exist. Instead, when judges hear a case, they get a gut instinct on the case and then go and find material to support this gut instinct, to make it seem as though they took their reasoning from established sources.

It has been suggested that adjudication should be studied as observable behaviour, which led to crude stimulus-response models being established. Llewellyn picked up on different style characterising the reasoning of common law judges. The grand style refers to judges coming to reasonable results which fit contemporary needs and the formal style is the deduction of answers from pre-existing rules.

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