Genesis, nature, and specificity of application of realistic approach in the history of American legal thought

Abstract

The subject of the study is the American legal thought of the period of its establishment and theoretical conceptualization, which was closely related to such characteristic as the realistic approach towards law that stood apart in the sociological and realistic directions. The attempts of interpreting the views of this regional intellectual group of legal experts as the classical version of legal realism are subjected to critical reevaluation. For assessing the specificity and content of the direction of legal thought referred to as “American legal realism”, the author explores the philosophical-methodological grounds of the cognition of law and interpretation of its concepts in the context of the aforementioned trend, separate substantial aspects of the genesis of realistic approach towards legal problematic in the history of American legal thought, as well as specificity of such characteristics of the court function as “judicial legislation” in through the prism of “legal realism”.  The novelty of this research consists in detailed clarification of certain essential aspects of the genesis and evolution of American legal thought. Emphasis is placed on the poorly studied aspects of the criticism of legal realism in American literature. The latter is used rarely or fragmentally in the Russian research dedicated to the application of realistic approach towards law in the United States, including correlations with some European direction of “realistic” jurisprudence. Examination of philosophical-methodological framework of American legal realism allows revealing significant inaccuracies and distortions in classification of this trend as realistic, which in fact is rather of nominalistic nature. Realistic in relation to this trend of American legal thought is applicable only to separate characteristics of the sociological study of justice.