Summary
Summary Shannon Hoctor 'Legal Realism' in Roederer and Moellendorf Jurisprudence.
- Course
- JUR 310
- Institution
- University Of Pretoria (UP)
Summary of Shannon Hoctor 'Legal Realism' in Roederer and Moellendorf Jurisprudence.
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I WHAT IS LEGAL REALISM• Legal realists argue that the role of the judge is much more discretionary and
creative than the dominant mechanical jurisprudence or formal-ism of the day.
• Realists take aim at the dominant mechanical jurisprudence or formal-ism of
the day, which held that judges decide cases on the basis of distinctively legal
rules and reasons that justify a unique result in each case.
• Fletcher expresses the distinction between formalist and realist sceptic
thinking as follows Think of the law as a ray of light that passes through a
drinking glass.
• Formalists contend that there is no water in the glass.
• The light passes straight through the judge and defines the resulting decision.
• The skeptic holds that the glass is full, so full that the light can hardly be
recognized after it passes through it.
• The most important details in this text are that the realist skeptic draws a
distinction between real rules of law and paper rules, between the actual
practice of the courts and legal theory, and that the games analogy
emphasizes the need to distinguish between the theoretical structure and
declared rules on the one hand and observed practice on the other.
• This distinction is further explained by a comparison between legal riles and
rules in games, which emphasizes the need to distinguish between the
theoretical structure and declared rules on the one hand and observed
practice on the other.
• The call of the realists is for the law to be modified and adapted by practice.
• Legal realism is a scientific examination of why decisions are made, rather
than an academic exercise about how decisions could be constructed as
logical consequences of rules.
• There are two independently existing realist modalities, American realism and
Scandinavian realism, which are united in one endeavour to explain what the
law really is, in terms of practicalities rather than theory.
• Both approaches are hostile to formalism, adopt radical empirical methods,
and are antagonistic towards metaphysics and values.
• They focus on facts rather than rules, and are preoccupied with the actual
operation of the law in its social context.
• The differing modalities of realism will now be discussed, with particular
reference to the leading theorists in each approach.
II AMERICAN LEGAL REALISM
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