USQ Law Society Law Review Winter Edition 2022

Page 112

USQ Law Society Law Review

Adam Hartley

Winter 2022

IS LEGAL REALISM A LEGAL THEORY OR DESCRIPTION OF WHAT LAWYERS DO? ADAM HARTLEY1 I

INTRODUCTION

This paper shows that legal realism is a legal theory and not just a description of what lawyers do. The paper also outlines the key concepts of legal realism, and how the concepts are identified and utilised in the modern law setting. Moreover, the paper shows why legal realism was the catalyst for judicial activism. Finally, the paper will explores how lawyers have adopted this theory and manipulate its core principles in an attempt to provide legal justification for the decisions.

II

WHAT IS LEGAL REALISM?

The establishment of the legal realism theory was first constructed by Oliver Wendall Holmes an American jurist who served on the Supreme Court of the United States.2 Holmes’ believed that general legal rules are by nature incapable of providing uniquely correct answers in particular cases.3 These thoughts spawned American realism. The theory of American realism is quite different from the theory of Scandinavian realism4 although scholars of both theories reject the formal description of law as given by legal positivists.5 American realists propose that law in real life is very dissimilar to law as stated in law books. Real law is dependent on the interpretation of the written word by the appellate court and how the trial courts determine the facts of a particular case.6 Scandinavian realism is based on a scientific theory, that discounted metaphysical explanations, with law not being able to solely be determined by facts alone.7 It can be argued that realism is a reaction to the black letter approach to the law that was being advocated through the formal syllogistic application of law to the facts. 8 Legal realism is difficult to define which has resulted in it being defined in several ways. First, an explanation of Legal realism can be described as an attempt to use social science and rational reasoning to

1

This paper was originally submitted as assessment for the subject LAW2224 Theories of Law.

2

Michelle Sanson and University Thalia Anthony, Connecting with the law (Oxford University Press 4th ed, 2019) 329. 3

Ibid.

4

Ibid 330.

5

Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 109.

6

Sanson (n 1) 329.

7

Ratnapala (n 4) 109.

8

Sanson (n 1) 329.

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