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What is Legal Realism?
Legal realism is a philosophy of law that originated in the twentieth century. As a fairly modern legal philosophy, legal realism brings its kind of perspective to modern legal practices and the national legal systems of modern countries. One prime aspect of legal realism is that it distinguishes itself from a more technical legal approach.
Forms of legal realism became popular in both the United States and in Scandinavia in the 1900s, and some elements have persisted ever since. The philosophy examines the law from a “real world” perspective, and suggests that it is not the actual legislation that shapes legal outcomes, but what judges will enforce and what a legal community or general population will accept. A "realism" approach to the law also contends that technical law as legislated is often faulty and may not conform to some commonly held human principles.
Important figures, including high level judges in some countries, have embraced legal realism over the years. This kind of legal philosophy competes with a “mechanical jurisprudence” approach that holds technical legislation as an ideal law to be ruled on by judges. In contrast, the more intuitive approach gives a lot more power to judges than it does to legislators, at least in theory.
Legal realism has often generated healthy debates in legal communities or legal education programs about what the law “should be.” One similar idea that gets incorporated into these debates is the idea of a “rule of higher law.” The rule of a higher law argument separates the legislation of a national government from the principles of morality, decency, and humane treatment of individuals; it seeks to show how the former may be at fault in various ways, or, in a legal setting, subjugated to the higher principle in practice, i.e. in the courts.
Beyond being a tool for debate over legal structures in the role of law within a society, the idea of legal realism can help outsiders analyze a legal system in various ways. Part of what made this idea thrive is its distinction from a simply empirical view of the law, and to those outside a system, a legal realism approach can be extremely useful in judging not only the intent of legislation, but its actual results. Journalists and others who weigh in on legislation could find legal concepts of realism, and related concepts, to be the best basis for an analysis of legal changes, and law-related opinion pieces.
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![Many judges have started to embrace legal realism in recent years.]()
By: RobMany judges have started to embrace legal realism in recent years.
Discussion Comments
@Charred - Well my philosophy is simple. I believe in natural law – or divine law, if you will. We have within each of us a sense of right and wrong, and this is something that transcends the particular laws of a society.
Given that this is the case, all laws should proceed from natural law. If they violate natural law then it’s certainly valid for us to question their efficacy or legitimacy. To this end I think legal realism is very useful and more preferable to legal formalism which simply follows the letter of the law without regard to its spirit.
@everetra - It never ceases to amaze me how many pundits there are on television and in print who think they’re qualified to pontificate on matters of law.
It used to be that only lawyers and judges could do that. But now everyone’s a critic, so it seems. I have to blame this legal process theory which attempts to ascertain not only intent but also results.
It’s like everyone’s is trying to judge the validity of a law based on what kind of effect it has on people, instead of judging it by firmly established legal principles. I am not a fan of this approach and I think it serves to weaken the rule of law in society, treating it as subject to the people’s whims.
@MrMoody - I don’t agree with your assessment. Legal realism does not necessarily lead to judicial activism. It jus acknowledges that there are higher laws, as the article points out.
People have conscience and they also have religious convictions. Legal realism jurisprudence allows such individuals the choice of opting out of practices that are antithetical to their deeply held convictions.
This approach to the law recognizes that personal convictions take a higher priority, within reason of course. I don’t think you would do a reasonable job of persuading a judge that your conscience forbade you from paying your taxes for example, although some have tried.
This new legal realism sounds good on the face of it, but I think it accords too much power to the judiciary. It forces judges to think about nebulous things like “intent” and in my opinion this leads down to the slippery slope of judicial activism.
At that point in time neither the intent nor the letter of the law is upheld; judges just read their own interpretation into the law, and as is commonly stated, they begin to “legislate from the bench.”
In my opinion judges should simply enforce the law as it stands without trying to finesse its nuances. If the law needs to be changed then it’s up to the legislators to change it.
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