Next, Holmes presents his most important and influential argument, the theory of the “bad man” right: “If we adopt the view of our friend, the evil man, we will find that he cares neither about morality nor 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 is a naturalistic approach to law. It was felt that jurisprudence should imitate the methods of the natural sciences, i.e. be based on empirical evidence. Hypotheses must be tested against observations of the world. [ref. Realism was treated as a conceptual claim for much of the late 20th century because of H.L.A. Hart`s misunderstanding of 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.
What did Oliver Wendell Holmes want to accomplish? Holmes delivers his point of view in a simple statement: “Morality deals with the actual inner state of the mind of the individual, what he actually intends.” Holmes was a legal realist; Listen to Holmes again: “The error I refer to is the idea that the only force at work in the development of law is logic.” 1. Hegal states in his “Philosophy of Law”: “It is the absolute right of the idea to manifest itself in legal dispositions and objective institutions, beginning with the laws of marriage and agriculture. Whether this form takes the form of divine legislation and favor or violence and misconduct – this right is the right of heroes to establish states. I believe that a lawyer or judge in his own mind wants to be a “hero” in establishing a socially favorable form of legal institution. 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. 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 oppose the traditions of natural law because of their worthless approach. 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. Legal realism reached its peak from the 1920s to the 1940s. In the 1950s, legal realism was largely supplanted by the legal litigation movement, which viewed law as a process of “reasoned elaboration” and asserted that appeals to “legislative ends” and other established legal norms could provide objectively correct answers to most legal questions. In his 1961 book The Concept of Law, British legal theorist H. L. A. Hart dealt a “decisive blow” to legal realism[16] by attacking the predictive legal theory that many realists had adopted from Holmes. Hart pointed out that if a law is just a prediction of what the courts will do, a judge thinking about the legal merits of a case before him really asks, “How am I going to decide this case?” As Hart notes, this completely overlooks the fact that judges use legal rules to guide their decisions, not as data to predict their eventual involvement.
2. Oliver Wendell Holmes` quotations are from his writings entitled The Path of the Law, Applewood Books, Carlisle, Massachusetts. Therefore, I maintain that legal realism, as advocated by Holmes, is the best philosophy of law on which modern society can be based. My support for legal realism is based on its preference for “common sense” that legal realism best serves good public policy and social interests, recognizing that natural law and the need for law to promote what is just and decent can be what a society should strive to achieve through its legal system. I respected Oliver Wendell Holmes much more after witnessing what he explained so well for 30 years. It`s one of those ideas like, “I wish I had known then.” Learning the formalistic legal theory that the order of society and the rights of citizens are defined by “legal duties,” which in turn establish “legal rights,” was as if my head was slammed against the wall of reality by Oliver Wendell Holmes. Witness Holmes explains what a legal duty really is: “A so-called legal duty is nothing more than a prediction that if a person does or refrains from doing certain things, he will have to suffer in one way or another by judgment of the court and therefore by a legal right.” Ouch, it hurt my belief that people have acted, or should act, out of faith in what is morally right, not just to avoid punishment. Holmes further refined his thinking about law and morality.
Look at these statements from Holmes: Here`s what Holmes would say – judges are indeed people, shaped by their personal experiences, especially in childhood and adulthood. Therefore, they have particular political values and beliefs. Moreover, the way they do things in their courtrooms is peculiar to their personal experiences, just as a professor teaches, much like he or she remembers his or her best teacher. Judges also have feelings. Although a lawyer and a judge learn the law to learn cognitive decision-making to infer it from using the right side of their brain, the lawyers I know personally mostly turned to the legal field because they were emotional and creative people interested in helping people. They preferred “common sense” to legal decency and dogma (ala Holmes). Therefore, judges will view hearings and trials as human dramas rather than abstract matters, and will seek to respect the “right of heroes” in defining the law.1 Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: “formalist” or “mechanical” conceptions of law and legal argumentation. refute. It is now widely accepted that law is not and cannot be an exact science, and that it is important to look at what judges actually do when deciding cases, not just what they say they do.
As evidenced by ongoing debates about legal activism and judicial deference, legal scholars continue to disagree on when it is legitimate for judges to “make laws” rather than simply “obey” or “apply” existing law. [20] But few would disagree with the realists` fundamental assertion that judges (for better or worse) are often heavily influenced by their political beliefs, personal values, individual personalities, and other extrajudicial factors. [21] 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. 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] â The law speaks of rights and duties, of malice, of intent and negligence, and so dignified, and nothing is simpler, or, if I may say so, more common in legal argumentation than to take these words in their moral sense, at a certain stage of the argument, and thus to fall into error. A statistical method for natural language processing was used, to automatically predict the outcome of cases heard by the European Court of Human Rights (e.g. violation or non-violation of a specific article) based on their textual content and achieve a prediction accuracy of 79%.
[22] A subsequent qualitative analysis of these results provided some support for the theory of legal realism.