Priel D (2018) The return of legal realism. In: Dubber MD, Tomlins C (eds) The Oxford handbook of legal history. Oxford University Press, Oxford Llewellyn KN (1960) Jurisprudence: Realism in Theory and Practice. University of Chicago Press, Chicago Legal positivism is a separate topic from legal realism. The discrepancies are significant both analytically and normatively. Both structures consider the rule as a human creation. Unlike American legal realists, positivists argue that in certain situations, the law gives well-defined instructions to its subjects and judges, at least in the courts. Niklas Luhmann concludes: „One can reduce positive law to a formula, the law is not only raised by judgment (i.e. chosen), but also by decision-making power (i.e.

dependent and variable). Positivists, however, do not say that anyone`s decision validates a law. According to Hart, the truth of legislation is a matter of customary and collective judicial process. As for the legal value of the law, it is a question of universal values defended by both positivists and realists. In this situation, „the power of judgment“ has no important function, because individual judgments are never used to establish a collective standard of acceptance, so it would be implausible to believe that moral values are thus determined by anyone. The most prominent criticisms of legal positivism stem from the assumption that it somehow refuses to give morality the honor it deserves. A philosophy based on the factuality of the law seems to contribute nothing to our perception that the law plays a crucial role in the advancement of human life, that the rule of law is a valued value, and that the vocabulary and application of the law are highly moralized. Accordingly, proponents of positivism believe that the most salient attributes of law are not to be seen in its source-based nature, but in the ability of law to promote the common interest, protect civil rights, or govern with dignity.

As Hart explains in his theory, this completely ignores the idea that judges use laws to guide their decisions, rather than as evidence to determine their final judgments. Many critics have argued that realists have reduced the extent to which the law is full of loopholes, ambiguities, etc. „interspersed“ is exaggerated. The fact that most legal questions have simple and clear answers that no lawyer or judge would dispute is difficult to reconcile with the realistic bold arguments about the pervasive legal „vagueness.“ Many writers, including Ronald Dworkin and Lon Fuller, have disappointed legal realists for their strenuous efforts to distinguish law from morality. By realist legal theories I mean theories that: (1) define what the law is and how it functions in human cultures without sentimental or moralistic illusions (descriptive adequacy takes precedence over moralizing sermons); (2) to recognize that the law is rarely sufficient to justify the manner in which the courts decide all proceedings before them; and (3) indemnify justice and jurisprudence to the fullest extent of the law. By „legal positivism“ I mean the interpretation of the essence of the law that H.L.A. Hart formulated most forcefully in 1961 and Joseph Raz developed further in the 1970s and 1980s, according to which (1) where there is a legal structure, there is a „rule of recognition“ that defines the conditions under which norms are the true law; and (2) the rule of law is nothing more than a complicated deception. This ensures that rules and legal frameworks are essentially based on the traditional procedures of civil servants.

Legal realists believe that jurisprudence should examine law only through the worthless methods of the natural sciences, rather than through philosophical inquiries into the nature and meaning of law, which are separate and distinct from law as it is actually practiced. In fact, legal realism claims that the law cannot be separated from its application, nor can it be understood outside its application. As such, legal realism focuses on the law as it actually exists, not the law as it should be. By situating the importance of law in areas such as judges` legal opinions and their respect for or rejection of past precedents and the doctrine of stare decisis, he emphasizes the importance of understanding the factors involved in judicial decision-making. It is rare for the law to completely favour one side over the other. There is usually a legal argument that must be made on both sides of a particular issue. However, the law generally leans in one direction, and I have found that the legal force of a case is less important than the given facts of the case. In my experience with local judges, it is often the facts that determine the outcome of cases, not the law; That is, I have had many situations and cases where the law is stacked on my side to some extent and my client has always received an unfavorable outcome. Conversely, I scratched my head on the results where I was disadvantaged by the law, but I got a victory for my client on the basis of favorable facts. I think it is because most trial judges are legally realistic. In contrast, „legal realism“ is the concept that the law, as a male, malleable corpus of directives, should be applied creatively and liberally so that the law serves good public order and social interests.

Legal realists see the legal world as a means of promoting justice and the protection of human rights. Legal realists often believe that judges should gradually develop and update the law because, as the closest branch that comes into contact with economic, social and technological realities, they should and can adapt the law accordingly to meet these needs. They often believe that judges should have broad discretion and decide issues on an individual basis because legislators are known to be slow or innate in responding to such pressures for change. In my experience as a relatively young lawyer, I have sometimes been frustrated to find that most trial judges look like legal realists rather than legal formalists. I sincerely believe that to be true, but it may not be the judges who simply prefer one legal philosophy to another. Rather, I think it stems from practical needs that exist in today`s courtrooms. The rules that remain in force within this framework depend on the legal rules that the authorities consider relevant; such as legal measures, court decisions or social practices. The reality that a policy is moral, reasonable, effective, or reasonable is rarely enough to believe that it is truly the norm, and the possibility that it is unfair, reckless, wasteful, or reckless is never a sufficient reason to question it.

Law, according to positivism, is a question of what has been presented (ordered, determined, exercised, accepted, etc.). Austin found the thesis „simple and impetuous.“ While this is undoubtedly the dominant opinion among analytically oriented legal theorists, it is still the target of conflicting definitions, as well as frequent criticisms and misunderstandings. Alexander L (1998) The Banality of Legal Argumentation. Notre Dame Law Rev 73:517-533 American legal realists believe that jurisprudence is more than the „mechanical“ application of well-known legal principles to the undisputed conclusion of fact in accordance with the arguments of legal formalism. Some realists believe that one can never be sure that the facts and law identified in the judge`s reasoning were the real reasons for the verdict, while other realists accept that one can often rely on a judge`s motives, but not always. Realists believe that the legal principles that legal formalism treats as unchallenged actually hide controversial political and moral choices. 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 the strong realistic assertions 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] Following Holmes and other critics of legal formalism, a number of iconoclastic jurists founded 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. Although some elements of legal realism are still considered simplistic or outdated, most jurists will admit that realists have been successful in their fundamental goal of rejecting „formalistic“ or „mechanical“ legal ideas and logic. Today, it is generally accepted that law is not and cannot be an exact science, and that it is important to identify what judges actually do when deciding cases, not just what they say.