Understanding Legal Realism: Concepts and Applications
Legal Realism
Legal Realism is a school of thought that emerged not only in the U.S. but also in Europe, mainly Scandinavia, where Ross was its most representative figure.
American Realism is a reaction to what was considered excessive formalism and positivism—a critical realism that viewed law as a complete and consistent system of rules, where the judge’s role was a socially neutral judicial function.
This criticism mainly stems from the fact that American lawyers lacked large, codified bodies of law to which formal properties such as consistency, clarity, and precision could be ascribed. This conception of the Code as a coded body was seen as the work of a purely rational legislator. American jurists, in this context, attempted to show that reality sometimes requires adapting the rule to make it effective, and the problem of interpreting the law appeared as an item and work of the jurist.
The lawyer had to investigate and determine the meaning of the judge’s decision.
According to Tarello, American Realism involves studying the regularity of behaviors presupposed when resolving disputes and interpreting and applying the law. This makes the interpretation and application of the law primarily a practical problem, emphasizing the resolution and the solution reached.
Most authors who can be placed into this stream of realism share two fundamental ideas:
- The first is that most of them deny that legal phenomena can be explained solely from endogenous variables within the law itself. This implies that they defend the idea that the analysis of law should be open to other social sciences, such as sociology and economics.
- Second, there is a clear and comprehensive rejection of the possibility of building a body of theoretical legal concepts systematically developed (which is central to legal formalism and legal positivism) as a proper element of analytical jurisprudence.
Legal realism stems from a certain skepticism about the rules and is a reaction against legal formalism’s conception of law as a logically closed, perfect system. Realism, in that sense, criticizes the purely formalistic conception of law and the legal reality experienced by European citizens. It considers that real law is not in the rules of the codes but must be analyzed by taking into account the behavior of individuals. The real law is created by the judge when intervening in a case. The subjects of interest to legal work will be to investigate the meaning of the judge’s decision, as clearly seen in Holmes.
Furthermore, it is important for realists to consider whether the law is effective when analyzing it. It is effective if applied by the court and if it solves the problems presented by practical reality. However, early on, this position became very radical and moderate. Liborio Iron is skeptical about this approach, not ignoring the rules absolutely, but emphasizing the scope of the regulatory function and the factors other than the standard involved in shaping legal life.