As a form of jurisprudence, legal realism is defined by the emphasis on the law as it actually exists in practice, rather than as it exists in books. To this end, he focused on the actions of judges and the factors influencing judicial decision-making processes. As Karl Llewellyn argues: “[t]he decisions are judges; Judges are men; As men, they have a human past. [3] Thus, law did not exist in a metaphysical domain of fundamental rules or principles, but was inseparable from human action and the power of judges to determine law. To understand the decisions and actions of legal actors, legal realists turned to social science ideas to understand human behavior and relationships that resulted in a particular legal outcome. [4] Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal thought. 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] Another school of thought that influenced Bentham is known as legal pragmatism. Unlike legal and economic representatives, legal pragmatists do not offer a formula for determining the best ways to improve the well-being of society.
Instead, pragmatists argue that judges need only set a goal they hope to achieve in resolving a particular legal dispute, such as preserving social stability, protecting individual rights, or delineating the powers and responsibilities of the state. Judges must then develop the best court order to achieve this goal. Pragmatists argue that judges must choose the appropriate social objective by weighing the value of the competing interests of a trial and then using a “bag of goodies” of “anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, habit, memory, experience, intuition and induction” to achieve the appropriate balance (Posner 1990, 73). Legal positivism is a philosophy of thought for theoretical jurisprudence founded in the 18th and 19th centuries mainly by legal theorists such as Jeremy Bentham and John Austin. Although Bentham and Austin formulated the philosophy of legal positivism, empiricism provided the theoretical basis for these innovations. The positivist argument does not suggest that the principles of law are incomprehensible, unimportant or ancillary to legal theory. This means that they do not decide whether there are rules or legal frameworks. Whether a country has a legal framework, it depends on the existence of such governance mechanisms, not on the extent to which it respects the principles of freedom, equality or the rule of law. A statistical method of natural language processing was used to automatically predict the outcome of cases heard by the European Court of Human Rights (violation or non-violation of a particular article) based on their textual content, achieving a prediction accuracy of 79%. [22] A subsequent qualitative analysis of these results provided some support for the theory of legal realism. The authors write: “In general, and despite the simplified snapshot of a very complex debate we have just presented, our findings could be understood to support the basic legal and realistic intuition that judges respond primarily to non-legal rather than legal reasons when deciding difficult cases.” Moral realists contradict the principles of natural law.
Legal realists argue that these cultures are historical and/or natural concepts and should be approached by a variety of psychological and sociocultural assumptions, with legal concepts perceived as determined by human behavior that should be evaluated empirically, rather than theoretical assumptions about the law. Legal realism is therefore at odds with most versions of legal positivism. Legal realism was largely a response to the legal formalism of the late 19th and early 20th centuries, which became the dominant style for most of the early 20th century. In her negative optimism, she managed to suspect formalistic expectations that judges actually do what they want to say, so that it is always claimed that “we are only realistic now”. Realism, however, has struggled in its positive quest to find a reliable way to anticipate how judges will act, rather than relying on judges` explanations. 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.
These include: Law and economics is a school of thought whose origins date back to benthamitic jurisprudence. This school, also known as the economic analysis of law, holds that judges must decide cases in order to maximize the prosperity of society. According to representatives of law and economics such as RICHARD POSNER, every person in society is a rational maximizer of his own interest.