Legal realism is a modern philosophy of law that looks at the law from a “real world” perspective and suggests that it is not actual legislation that shapes legal outcomes, but what judges will apply and what a legal community or the general population will accept. It competes with an approach of “mechanical jurisprudence” which considers technical legislation as an ideal law on which judges govern. Legal realism has often generated healthy debates in legal communities or legal education programs about what the law “should be.”
Legal realism is a philosophy of law that originated in the twentieth century. As a fairly modern legal philosophy, legal realism brings its own kind of perspective to modern legal practices and national legal systems of modern countries. A key aspect of legal realism is that it differs from a more technical legal approach.
Forms of legal realism became popular in both the United States and Scandinavia in the 1900s, and some elements have persisted ever since. The philosophy looks at the law from a “real world” perspective and suggests that it is not actual legislation that shapes legal outcomes, but what judges will apply and what a legal community or the general population will accept. A “realistic” approach to law also argues that technical law as legislated is often flawed and may not conform to some commonly accepted human principles.
Important people, including senior judges in some countries, have embraced legal realism over the years. This type of legal philosophy competes with an approach of “mechanical jurisprudence” which considers technical legislation as an ideal law on which judges govern. Conversely, the more intuitive approach gives much more power to judges than to legislators, at least in theory.
Legal realism has often generated healthy debates in legal communities or legal education programs about what the law “should be.” A similar idea that is being incorporated into these debates is the idea of a ‘superior law rule’. The rule of a superior law argument separates the legislation of a national government from the principles of morality, decency, and humane treatment of individuals; tries to show how the former can be guilty in various ways, or, in a legal context, submitted in practice to the higher principle, i.e. in the courts.
In addition to being a tool for debating legal structures in the role of law within a society, the idea of legal realism can help outsiders analyze a legal system in various ways. Part of what has made this idea thrive is its distinction from a merely empirical view of law, and for those outside a system, a legal realist approach can be extremely helpful in judging not only the intent of the legislation, but its actual results. Journalists and others concerned with legislation may find legal realism concepts and related concepts to be the best basis for an analysis of legal changes and law-related opinion pieces.
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