USQ Law Society Law Review
Fatema Nazari
Winter 2021
there is more to adjudication than the mere mechanical application of established legal principles to uncontroversial fact-finding. For these scholars, the rules which legal formalism treats as uncontroversial, essentially conceals contentious moral and political choices. Realists also deem it uncertain whether the law and the facts recognized in the judge's reasonings are the actual reasons of the decision.6
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REALISM’S COMMON THEMES:7
Influences of authority and economics Realists believe that the common law principles protect the commercial and economic interests of most powerful figures of the society. Courts uphold the interests of the members in power, behind the judgement of what is right.
A doubt of the judicial technique of apparent deduction of legal conclusions from the rules of law The realists believe that law is not a set of rules that is clear, consistent, and complete as formalists claimed. Relatively, the law is packed with ambiguities, vague terms, contradictions, and incompatible rules of interpretation. Resultantly, there is usually no correct answer unique to any hard case which judges decide.8
Law as an instrument for society’s welfare Realism maintains that the law does and should serve social ends.9 Judges do take considerations of public policy and fairness into account to enhance society’s welfare.
A pragmatic approach for sustainable results Realists believe that law should be viewed scientifically, as an empirical science to resolve legal disputes. Judges must survey competing interests, substitute approaches and their consequences when they hand down opinions.10 It mandates to cite that Realists do not propose that judges disregard the rule of law. Rather, they uphold that the role of the rule of law is minimized in the process of their decisionmaking.11 Nonetheless, legal realism is not a unified school of thought, but it generally analyses the motives that provoke the behaviours of judges.
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Glendon Schubert, ‘Judicial Attitudes and Voting Behaviour: The 1961 Term of the United States Supreme Court’ (1963) 28 Law and Contemporary Problems 100, 100. 7 Singer (n 4) 502. 8 Brian Leiter, ‘Rethinking Legal Realism: Toward a Naturalized Jurisprudence’ (1997) 76 Texas Law Review 267, 301. 9 Singer (n 4) 515. 10 Ibid 502. 11 Capurso (n 4) 13.
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