6. Legal realism

2017 ◽  
Author(s):  
Raymond Wacks
Keyword(s):  
Legal System ◽  
Abstract Concepts ◽  
Pragmatic Approach ◽  
Legal Realism ◽  
Oliver Wendell Holmes

This chapter first addresses the following question: what are realists realistic about? It then turns to examine American realism. The focus is on the theories of Oliver Wendell Holmes Jr, Karl Llewellyn, and Jerome Frank, and examines the Scandinavian realists: Alf Ross and Karl Olivecrona. Both ‘schools’ seek to demystify law by questioning the use and meaning of abstract concepts such as ‘justice’, ‘commands’, ‘norms’, and so on. Instead they have adopted an empirical, pragmatic approach to law and the legal system. But they differ in several material respects. These distinctions are examined, and their respective standpoints and methodologies criticized.

6. Legal realism

2020 ◽  
pp. 173-192
Author(s):  
Raymond Wacks
Keyword(s):  
Legal System ◽  
Legal Realism ◽  
Oliver Wendell Holmes ◽  
Sociological Approach ◽  
The Relationship

This chapter first addresses the question: What are realists realistic about? It discusses how this movement had little time for ‘theory’, and regarded the essence of law as what courts actually do in practice. The leading exponents of American realism: Oliver Wendell Holmes Jr, Karl Llewellyn, and Jerome Frank are discussed. They have been criticized for their obsession with courts, juries, lawyers and other features of the legal system, but are regarded as an important bridge to the sociological approach to law. The chapter then examines the Scandinavian realists: Alf Ross and Karl Olivecrona whose approach, while it is described as ‘realist’, is markedly different from their American counterparts. The relationship between Scandinavian realism and psychology is briefly considered.

Modern Equity

2018 ◽  
Author(s):  
Emily Sherwin
Keyword(s):  
Legal System ◽  
Traditional Management ◽  
Legal Realism ◽  
Legal Rules

In this essay, I examine the role that equity historically has played in moderating the outcomes of determinate legal rules in particular cases. The advantage of traditional equity was that its role within the legal system was subordinate relatively obscure, allowing courts to affirm the authority of rules while altering their consequences in particular cases. One of the objectives of American Legal Realism was to bring equitable principles to the forefront of law. I suggest that the transition proposed by the Realists may undermine the important compromise courts were able to strike through more traditional management of equity.

The Way The Law Is: On The Coherentist Character of American Legal Realism

1995 ◽  
Vol 8 (2) ◽  
pp. 227-244
Author(s):  
H. Hamner Hill
Keyword(s):  
Legal System ◽  
John Rawls ◽  
Holistic Approach ◽  
Legal Rule ◽  
Legal Realism ◽  
Legal Decisions ◽  
Nelson Goodman ◽  
Legal Rules ◽  
System A ◽  
Clifford Geertz

Clifford Geertz claims that in a well-functioning legal system there should be a fit between what Geertz calls the “if, then” structure of legal rules and the “as, therefore” structure of legal decisions. Put simply, for a system of laws to work, the legal rules used to decide cases must make sense given how one understands the cases to which they are applied, and the resolution of the case must make sense given the legal rule chosen to decide it. There must be, in a well-functioning legal system, a fit, a symmetry, between the rules allegedly used for deciding cases and the actual practice of deciding cases. For Geertz, the following question always makes sense in a legal system: “How, given what we believe, must we act; what, given how we act, must we believe.” Geertz recognizes that his question parallels the sorts of questions that Nelson Goodman asks in epistemology, or that John Rawls asks in ethics, and he embraces what I take to be a Goodmanian, holistic approach to codifying the rules that govern practices.

scholarly journals Empirisk forskning om domstolar i Finland

2017 ◽  
Vol 104 (2) ◽  
pp. 153-160
Author(s):  
Mika Sutela
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Empirical Studies ◽  
Process Data ◽  
Legal Research ◽  
Judicial Process ◽  
Legal Realism ◽  
Judicial Decision Making ◽  
Procedural Law ◽  
Wide Range

The subject of my article-based dissertation in law was decision-making in the general courts of Finland. My research aimed to describe how uniform decisionmaking is in the Finnish courts. With regard to district courts convictions of  gravateddrunk driving were the main focus of my study. The results show that there are regional differences in the sentences. Results are based on empirical legal research that draws on aspects of criminal and procedural law as well as criminology. Prior to this, only a few empirical studies had been conducted in Finland that focused on the courts and other criminal sanctioning systems. In the current dissertation, the equality and predictability of judicial decision-making at the international level where the influence of legal and extra-legal factors, e.g., offender age, on sentencing is explored. At a more theoretical level, the dissertation reflects the research tradition of legal realism. Empirical legal research will play an increasingly important role in the future. It can increase both equality before the law, as well as the transparency of decision-making and confidence in the judicial process. Data on, e.g., punishments meted out by the courts, should be kept as current as possible since information on the functioning of the legal system is important. Empirical court research provides a unique basis for discussing levels of punishment. The functioning of the legal system has a major impact on society. Empirical data, including statistics, provide a good basis for a wide range of research.1.

Sociological Jurisprudence and Legal Realism as a Basis for the Development of Judicial Law-Making

2019 ◽  
Vol 9 (5) ◽  
pp. 1528
Author(s):  
Gyulnaz Eldarovna ADYGEZALOVA
Keyword(s):  
Legal System ◽  
The United States ◽  
Regulatory Function ◽  
Legal Realism ◽  
Sociological Jurisprudence ◽  
The Law ◽  
Anglo American ◽  
Historical Comparative ◽  
The Right ◽  
Law Making

The aim of the present work is to study the role of sociological jurisprudence and legal realism for the development of judicial law making in the modern legal system. During the study, the author used general scientific methods, including historical, comparative, and logical ones. An analysis of legal documents was also performed, which allowed making conclusions about trends in the Russian legal system. The study showed that sociological jurisprudence and the realistic school of law of the United States were milestones of the development of the same socio-legal school. It was determined that the supporters of sociological trends could be attributed to the moderate direction of the American sociological legal school, and the legal realists – to the radical one. The basis of the socio-legal school is formed by the ideas of pragmatism, which are expressed in the functional and instrumental approach to the law. One of the basic tenets of the proponents of socio-legal school is the following: the law shall harmonize the interests, actually act and be implemented in the activities of the court. Views of sociologists of law contributed to the approval of the idea of judicial law making not only within the Anglo-American legal family but also in the legal systems of the Romano-Germanic legal family. They drew attention to the process of decision-making by the court, the process of setting up the rule of law by the court. The novelty of this research is that we have identified not only the influence of supporters of sociological school of law on the beginning of the new phase in the development of law, but also that the process was legitimate, and representatives of the scientific direction were able not only to recognize the pattern of ongoing legal development but also tried to steer the process in the right direction, so that the law would not lose its regulatory function and would not become a soulless mechanism in the hands of law enforcers.

Some Realism about End of Life: The Current Prohibition and the Euthanasia Underground

2007 ◽  
Vol 33 (1) ◽  
pp. 55-95
Author(s):  
Stephen W. Smith
Keyword(s):  
End Of Life ◽  
Rule Of Law ◽  
Legal System ◽  
Common Law ◽  
Real Life ◽  
Legal Rules ◽  
Oliver Wendell Holmes ◽  
The Past ◽  
Henry Iv

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.–Oliver Wendell HolmesThis well-known quotation from one of America's foremost judges provides an important admonishment about the role of history within the law. Holmes’ admonishment is that, even in common law systems, we should not allow ourselves to become too dependent on legal rules laid down in the past. Legal rules laid down long ago are as likely as newly constructed ones to have flaws in their reasoning or be difficult to implement in real-life situations. Furthermore, even in cases where the rule may have originally served some purpose, it may nevertheless be out of date and therefore have little continuing benefit to a particular legal system.

scholarly journals Ontological Metaphor in Economic News Reports: A Pragmatic Approach

2017 ◽  
Author(s):  
Arab World English Journal ◽  
Fareed Hameed Al-Hindawi ◽  
Wafaa S. Al-Saate
Keyword(s):  
Formal Language ◽  
Figurative Language ◽  
Research Work ◽  
Abstract Concepts ◽  
Pragmatic Approach ◽  
Rhetorical Device ◽  
News Reports ◽  
Economic News ◽  
News Websites ◽  
The World

With the development of the world of economy, economic reports in journals, magazines or news websites have become an essential part of daily life. Economic news demonstrates rigid and abstract concepts and meanings. It is a truism that clarity is as important as accuracy. However, writers of such news should not stick only to formal language. Their words would sound boring. To keep the audience interested, figurative language is manipulated. One rhetorical device frequently used in this genre is metaphor. It sheds some colorings on the rigid language of finance and economics. Thus, it deserves an investigatory research work. This paper sets itself the task of exploring one particular kind of metaphor, i.e. ontological metaphor. It aims at pragmatically exploring its kinds that can be possibly utilized in economic news reports. This involves specifying the most prevalent kind of ontological metaphor. It is hypothesized that in such a kind of news, ontological metaphorical uses show different manifestations like metonymy, personification or hyperbole. However, it is assumed that metonymy is the most prevailing one. The data chosen for the analysis are randomly taken from different economic websites and are analyzed by means of a model developed by this study. The analysis is quantitatively supported by a statistical analysis conducted via the percentage equation. The most significant findings of the analyses vindicate the two hypotheses set above. This paper is hoped to be valuable to pragmaticians and economic news writers or journalists who should be aware of such rhetorical devices to make use of them.

A pragmatic approach to teaching clinical physical diagnosis

1981 ◽  
Vol 45 (9) ◽  
pp. 585-588
Author(s):  
MJ Kutcher ◽  
TF Meiller ◽  
CD Overholser
Keyword(s):  
Pragmatic Approach ◽  
Physical Diagnosis ◽  
Approach To Teaching
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