I believe trial judges are more likely to be legally realistic for a variety of reasons. First and foremost, I believe their overburdened court cases force this into local courtrooms. Judges are often placed in situations where they must act quickly to deal with the large number of cases before their respective courts. They often “split the baby in half” to solve certain problems. They don`t have the time to sift through lengthy briefs that lawyers are known to write, and frankly, they don`t have the time to spend the time that a cognitive approach would require on joint litigation. It is much easier and more efficient for judges to resolve cases quickly by doing what they believe is the best outcome for the parties to the court, regardless of complex legal concepts. They have a general understanding of the many legal interests and have a working knowledge of the fundamental concepts that guide their day-to-day decision-making. They are not interested in being published in the Yale Law Review for their ingenious thoughts or opinions on an original topic. They just want to get through the day and be able to sleep with the decisions they made from the bench. By realist legal theories I mean theories that: (1) define what the law is and how it functions in human cultures without sentimental or moralistic illusions (descriptive adequacy takes precedence over moralizing sermons); (2) to recognize that the law is rarely sufficient to justify the manner in which the courts decide all proceedings before them; and (3) indemnify justice and jurisprudence to the fullest extent of the law. By “legal positivism” I mean the interpretation of the essence of the law that H.L.A.
Hart formulated most forcefully in 1961, and that Joseph Raz evolved in the 1970s and 1980s, that (1) where there is a legal structure, there is a “rule of recognition” that defines the conditions under which norms are of true right; and (2) the rule of law is nothing more than a complicated deception. This ensures that rules and legal frameworks are essentially based on the traditional procedures of civil servants. Appellate judges, on the other hand, tend to focus on the most abstract principles of law. That is because, first, they have never met with the litigants. Second, they are not under the same pressure that court judges must act quickly to clarify a case. Third, the decisions they make are often cited by future cases as a precedent to guide them in applying the law, so thorough legal reasoning is needed to prevent injustices in future decisions. For these reasons, I believe I have seen more success in the courts of appeal, where the law favours my side over the facts. Realism was treated as a conceptual claim for much of the late 20th century due to H. L. A. Hart`s misunderstanding of the theory.
[5] Hart was an analytical legal philosopher who was interested in the conceptual analysis of concepts such as the notion of “law.” This included identifying the necessary and sufficient conditions for the use of the term “law”. When realists like Oliver Wendell Holmes pointed out that those involved in the legal system generally wanted to know what was going to happen, Hart assumed that they provided the necessary and sufficient conditions for the use of the term “law.” Today, legal theorists tend to recognize that realists and conceptual jurists were interested in different issues. Realists are interested in methods to predict judges more accurately, while conceptual lawyers are interested in the correct use of legal terms. In my experience as a relatively young lawyer, I have sometimes been frustrated to find that most trial judges look like legal realists rather than legal formalists. I sincerely believe that to be true, but it may not be the judges who simply prefer one legal philosophy to another. Rather, I think it stems from practical needs that exist in today`s courtrooms. Legal realism reached its peak from the 1920s to the 1940s. In the 1950s, legal realism was largely supplanted by the legal litigation movement, which viewed law as a process of “reasoned elaboration” and asserted that appeals to “legislative ends” and other established legal norms could provide objectively correct answers to most legal questions.
In his 1961 book The Concept of Law, British legal theorist H. L. A. Hart dealt a “decisive blow” to legal realism[16] by attacking the predictive legal theory that many realists had adopted from Holmes. Hart pointed out that if a law is just a prediction of what the courts will do, a judge thinking about the legal merits of a case before him really asks, “How am I going to decide this case?” As Hart notes, this completely overlooks the fact that judges use legal rules to guide their decisions, not as data to predict their eventual involvement. Legal realism is associated with American jurisprudence of the 1920s and 1930s, especially among federal judges[1] and lawyers in the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant, and Warren Seavey,[1] many of whom were associated with Yale Law School. As Keith Bybee argues, “Legal realism has exposed the role of politics in judicial decision-making, challenging conventional efforts to anchor the judiciary on a solid and impartial basis.” [2] Contemporary jurists working in the tradition of law and society have broadened the foundations of legal realism to postulate what has been called the new legal realism. As a form of jurisprudence, legal realism is defined by the emphasis on the law as it actually exists in practice, rather than as it exists in books.
To this end, he focused on the actions of judges and the factors influencing judicial decision-making processes. As Karl Llewellyn argues: “[t]he decisions are judges; Judges are men; As men, they have a human past. [3] Thus, law did not exist in a metaphysical domain of fundamental rules or principles, but was inseparable from human action and the power of judges to determine law. To understand the decisions and actions of legal actors, legal realists turned to social science ideas to understand human behavior and relationships that resulted in a particular legal outcome. [4] The law does not always follow the criteria by which it is properly evaluated. Politics should be honest, but perhaps it is not; he should maintain the greatest good, but sometimes he does not; It must preserve human values, but it can struggle miserably. This is what we would call the principle of moral fallibility.