Legal Realism Research Articles

The Dual State in the United States: The Case of Lynching and Legal Lynchings

Abstract This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.

Form and Function in Tort Theory

Abstract Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.

Putting behavioural economics in its place: the new realism of law, economics and psychology and its alternatives

The behavioural turn in economics has spilled over into the field of law and economics. Some scholars even consider behavioural economics a variety of new legal realism, invoking earlier efforts to promote law as a behavioural and social science. In fact, behavioural economics works towards more realistic assumptions about human behaviour by drawing on empirical research methods, namely economic experiments. However, not all realisms are alike. Much of the mainstream of behavioural economics is inspired by cognitive psychology, which entails a move from behaviour to cognition and, ultimately, to brains. For scholars with a socio-legal background, legal realism rather points in the opposite direction: to the social contexts and institutional frameworks that shape individual behaviour. By exploring alternative options for a new realism at the intersection of law, economics, and related disciplines, this article exposes the relative neglect of institutions in behavioural economics and the tendency to reduce them to a corrective for cognitive biases in applications to law. At the same time, it provides a broad overview of different varieties of realism next to behavioural-economic ones.

The natural law in the political constitution of Colombia, a vision from the postulates of Javier Hervada

The thematic plurality and the prolixity of the texts and acknowledgments that are integrated into the Political Constitution of Colombia of 1991 allow it to be studied and considered from different perspectives and criteria, both doctrinal and argumentative. On this occasion, we will proceed to demarcate those features of the constitutional text that allow us to highlight its correlation with the postulates that, regarding the theory of natural law, Javier Hervada has established. To achieve this objective, the criteria of a dialogical methodology will be used, through which it is possible to establish a kind of conversation between the constitutional texts and the postulates that Hervada expresses, which are typical of the so-called natural law. The method used in this research does not deviate from the methodology that will be used, since it corresponds to the dialogical criteria between texts, which will allow the construction of conceptual reasoning that denotes the conceptual identity between the Constitutional Charter and the principles of law. natural, expressed in the work of Hervada. With this paper we intend to address a conceptual problem that demands that the relationship of the criteria of a conceptual aspect of Law, such as Natural Law, be clarified from a theoretical perspective, with an apparently neutral text, in terms of what that it refers to its ideological source, such as the Political Constitution of Colombia, which in its practical development, and more in the evolution, which the judiciary has given it, has been valued from the criteria of legal positivism, of legal realism, and even from the orbit of ius-naturalism.

A. Hagerstrem's Legal Views: the Conflict of Idealistic Objectivism and Psychologism

The subject of the study is the legal views of A. Hagerstrem, a Swedish philosopher, lawyer, founder of the intellectual trend in European legal science and epistemology, which has received the name of Scandinavian legal realism. The positions of this scientist constitute a significant milestone in the history of the philosophy of law of the twentieth century. At the same time, they remain poorly studied, both in Russian and in European literature. Among the few studies devoted to the study of the content and specifics of A. Hagerstrem's legal views, the similarities of his main positions with the ideas of phenomenological teaching are mostly uncritically reproduced, parallels are drawn with those movements in jurisprudence and philosophy that declared a struggle against metaphysics. Special attention is paid to the analysis of the nature of the conflict of principles of the concept of objective cognition and psychologism in law. The article presents brief results of the analysis of both the principles of the epistemological teaching of A. Hagerstrem, and provides a deeper analysis of the content of legal representations in comparison with traditional interpretations of his views. Moreover, the study demonstrated that the principles of the epistemological teaching of this scientist significantly contradicted the ideas of his so-called practical philosophy in the field of the study of law. The nature of the relevant conflict can be explained by an attempt to combine idealistic objectivism with a psychological approach to understanding law. The study contains the results of the analysis of A. Hagerstrem's legal ideas, which allow us to significantly clarify the nature and content of the views of this scientist in the recent history of legal thought.

Lifting the Veil: How the Brain Decides Blame and Punishment

During the early 20th century, legal scholars were gripped in fierce debate: legal formalists, led by Harvard Law School dean C.C. Langdell, argued that judges should be impervious to emotion and guided by reason alone; in contrast, legal realists maintained that judges are people who have the same foibles and idiosyncratic biases as everyone else. The realists were building on ideas expressed by future U.S. Supreme Court Justice Benjamin Cardozo, who wrote that forces “deep below consciousness”—“the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions”—shape judges and litigants alike (1).

Scandinavian Legal Realism in Two Criminal Convictions of The Same Thing

Human life is regulated and will never be separated from the provisions of binding regulations. Binding rules or norms in human life have the purpose of creating order, justice, and public welfare. The paradigm of legal positivism has always relied on the logic and validation of the ruler which makes people think that the ruler is the only law. This is strongly criticized by legal realists. The interesting thing about legal realism is the view that law must depart from the study of facts. American legal realism states that a judge decides something based on his personal preferences, and then makes a legal analysis to justify the expected outcome. This is different from legal realism in Scandinavia, which is based on logical positivism that developed in the modern era. Legal realism in Scandinavia intends to make legal science more scientific. Criticisms of legal realism include: legal realism presents the law only as a tool for resolving disputes on a case by case basis, there is no need for legal certainty because the approach is very casuistic so that judge’s understanding of cases can vary widely. Using legal studies approach, be expected that it can provide an overview of the problems that occur related to Scandinavian Legal Realism in the adultery case of SS with minors which is contrary to The Law of Number 35 of 2014 concerning Child Protection in conjunction with Article 65 Paragraph 1 of the Criminal Code. The judge's authority over the case is to give a verdict related to the SS case in accordance with positive law, the facts that actually happened, and the truth of the case that has been observed by the people involved and legal experts with the aim of maintaining order and protecting the community so that they always do the right thing.

Scandinavian Psychological Theory of Law

The article examines the nature and main characteristics of the legal views of Scandinavian lawyers, who are traditionally identified in the history of modern legal thought as representatives of legal realism. The focus is, first of all, on the nature and methods of substantiating law as a psychological fact, which largely determines the profile of the legal views of Scandinavian realists (on the example of the writings of A. Hagerstrem and A. Ross). In this regard, the psychological orientation of the theoretical and legal views of the Scandinavian realists makes it possible to more accurately highlight the question of the place, meaning and orientation of the psychological by its nature Scandinavian theory of law in the history of modern legal thought. In addition, the study focuses on the features of epistemological approaches underlying the legal views of the realistic movement in legal thought in the Scandinavian countries. В The novelty of the research lies in the fact that it gives a problem-critical assessment of the content of the legal views of the Scandinavian realists, determines the specifics of the semantic load of realism as an epistemological attitude underlying their philosophical, ethical and legal views, reveals the peculiarities of the interpretation of law as a psychological fact, and also demonstrates the possibilities of typologizing the corresponding ideas about law as a psychological theory law and its regional interpretation. In addition, clarifications are made to the definition of the place and significance of the psychological theory of law of Scandinavian authors in the history of pan-European legal thought, and some essential features of psychologism in the legal understanding of the considered regional group are identified.

ABOUT ISSUE 1 OF 2022

This is the first issue of Access to Justice in Eastern Europe in 2022 and I am delighted to present our authors’ contributions. The research articles section opens with the article related to a very important practical issue in procedural law and the theory of law – the division of cases into easy ones and hard ones. It seems that the digitalisation of justice may significantly impact this division because of the courts’ decision-making processes in such cases. In this essay, the author examines whether the solutions proposed by legal positivism (such as applying syllogisms and precedents) are sufficient to deal with easy cases and what factors analysed by legal realists have an impact on judges when making decisions in hard cases. Learn more about this topic and why and how these changes occur in the article of a young and promising researcher from Vilnius University, Goda Strikaitė-Latušinskaja. A fresh and interesting perspective on derivative lawsuits and the right to file such a lawsuit was included in this issue. The regulation of derivative lawsuits differs in each jurisdiction, despite sharing common features, raising a variety of issues to be resolved. It is a great pleasure for me to highlight that the author Heorhii Smirnov is apostgraduate Student of our Law School at Taras Shevchenko National University of Kyiv. An excellent study related to land rights disputes and the effective protection of rights was prepared by Oleh Ilnytslyi and Ivan Boychenyk. I highly recommend reading this article to discover more about how procedural legislation and the practice of its application to unresolved issues have limited methods of protection in cases of the rights and interests of persons to land by courts of different jurisdictions and the possibility of their cross-application in Ukraine. I also particularly want to draw the attention of our readers to the very interesting and inspiring note prepared by Dobrosława Szumiło-Kulczycka from Jagiellonian University as part of the ‘Costs of a Criminal Trial in View of an Economic Analysis of Law’ project. In her article, prof. Szumiło-Kulczycka points out three fundamental factors determining the amount of the expenses, i.e., the fact of the accused being imprisoned during the proceedings, the use of scientific evidence (opinions produced by expert witnesses), and the participation of a public defender remunerated by the State Treasury. Joanna Bodio’s review on the book ‘Implementation of the principle of the best interests of the child in mediation in matters concerning the exercise of parental authority and contacts’, edited by Joanna Mucha,appears in our issue as well. This monograph was prepared with the wide participation of colleagues from European states and focused on a very important goal – the thesis that in court proceedings in matters relating to a child and mediation in matters concerning the exercise of parental rights and contact with a child, the primary value to be protected should be the best interests of the child. I would like to thank both of my colleagues – the reviewer and the editor of this excellent book – and sincerely hope that we will continue this promising and important research. A few notes have also been included in this issue due to their interesting insights and importance for further research.

What Do Good Lawyers Know that the Rest of Us Don't? Introducing First-Year Law Students to 'Legal Realism'

What Do Good Lawyers Know that the Rest of Us Don't? Introducing First-Year Law Students to 'Legal Realism'

V.S. Gruzdev. Realism in jurisprudence: theoretical, methodological and historical aspects

In the review of V.S. Gruzdev’s monograph “Realism in jurisprudence: theoretical, methodological and historical aspects” it is noted that the research of the author of the reviewed work seems to be in demand by modern philosophy and jurisprudence. The purpose of this monograph is to study on the basis of original texts the main directions of legal realism as a paradigm of legal understanding in the context of its genesis, typology, main interpretations and directions of development, to show its evolution and interpretation. To achieve it, the author solves a number of theoretical, methodological and methodical tasks: generalizes approaches in domestic and foreign literature to the interpretation and justification of realism as a theoretical and methodological attitude and method of cognition of law; identifies the main directions of evolution and typology of conceptual legal realism; explores the concept of activity as a semantic characteristic of legal practice; analyzes the most significant trends in the evolution of legal realism in the history of Western European and Scandinavian legal thought; explores the specifics of American legal realism; determines the role of realism among the dominants in the history of Russian legal thought. The issues raised in the monograph and their presentation are of interest for further scientific research in the field of theory, Philosophy and Sociology of Law, history of political and legal doctrines, history and methodology of legal science.

Понимание конституционности в философско-правовом дискурсе: мнимые и подлинные альтернативы

Ensuring compliance of legal acts with the constitution is a problem of legal dogma and practice, as well as of the philosophy of law. In the latter, these ques­tions are linked with more general problems of validity of normative orders, in­cluding a legal one. In positivist philosophy of law, there are two alternative ap­proaches to their understanding – analytical jurisprudence and legal realism. The first describes the legal order as a system of norms, where the validity of a norm is determined by its compliance with a norm of higher level. However, because of the ambiguity of constitutional text it is often impossible to give a definite answer on the conformity of law with the constitution. The recognition of a law as constitutional depends upon the discretion of the constitutional re­view body which decides a case. These approaches of the analytical philosophy of law are practically identical to the legal realists position according to which a normative text doesn’t have any meaning before it’s interpretation by the autho­rized body, that determines a real content of a text. Within the framework of these areas of legal thought, the idea of ​​ constitutional review loses any meaning, and the effectiveness of the constitution, not only its supremacy, is called into question. Non-positivist approach is a genuine alternative to this understanding of constitutionality. According to it the limiting of public authorities and human rights realization are the purposes of a constitution. In formal legal sense, consti­tution as a normative act only fix those principles that guarantee the proper orga­nization of government. These principles express the essence of the constitution and serve as standards of constitutional review. Such understanding of constitu­tionality justifies different interpretations of constitutional text, and at the same time sets limits to it with the help of agreed understanding of general principles.

New Legal Realism: A Promising Legal Theory For Interdisciplinary And Empirical Disability-Research

New Legal Realism (NLR) is a relevant theoretical strand advancing a constructive relationship between law and the social sciences. NLR broadens the ‘scene’ in legal studies by placing legal issues in their broader social contexts and follows the aspiration of the scientific study of law. Based on the literature review, this article presents a brief discussion on NLR. It argues that an NLR approach might be useful for carrying out research on compliance with (international) law in practice, i.e., the ‘law-in-action’. This article finds that four main characteristics of NLR, mainly its law-centred, interdisciplinary, empirical, and constructive legal action character yields useful results to analyse States’ compliance with the law. It concludes that an NLR approach contributes to moving from exploring law in books to investigate ‘law-in-action’. This involves analysing compliance with the (international) law through domestic law and policy instruments, as well as compliance through social practices. This means to explore the social context within which the law operates. In other words, to investigate the impact of the law at the point of delivery (or the ‘law-in-action’). The underlying purpose of this article is thus to call for collaborative action among legal and social scientific researchers by considering to adopt novel theories, such as NLR, to mix normative legal analysis with consideration of broader and holistic perspectives on the law. Lastly, due to the current research interests of the author, this article includes a brief reflection on adopting an NLR approach to analyse State Parties compliancewith the UN Convention on the Rights of Persons with Disabilities (UN CRPD). Notably, in the available literature, this is an underexplored issue.

International Law in Europe and Legal Realism

International Law in Europe and Legal Realism

Legal Realism and 'Working' Rules

Legal Realism and 'Working' Rules

Legal Realism and Australian Constitutional Law

Legal Realism and Australian Constitutional Law

American Legal Realism Today: An Idiosyncratic Restatement

American Legal Realism Today: An Idiosyncratic Restatement

THE DOCTRINE OF PRECEDENT: AN ANALYSIS FROM SOCIOLOGICAL SCHOOL OF JURISPRUDENCE & AMERICAN REALISM

“One precedent creates another and they soon accumulate and constitute law. What yesterday was a fact, today is a doctrine.”JuniusFrom time immemorial it has been observed that with the development of people, law has evolved to maintain peace and order in the society. It is where law is considered to be superlative, the anticipation and debate about the supremacy of the law formulating body is never ending. Thinkers and scholars from time to time have been promoting different ideologies to figure out the body which formulates law and the premise on which the law is operational. The overlapping between the thoughts of advocates of sociological school and American Legal Realism has been prominent as both the ideological grounds support the view that law finds its source in the society itself. The former argues that the addressing of the issues in the society is the key to formulate of law while the latter supports the view that law is formulated within the courtrooms by giving primary importance to the ‘judge made law’. The focus of study in this research paper will be upon the understanding of precedents and the interface between sociological school of law and the American legal realism and the impact of precedents in modern legal societies. The research also aims to find out the role of the precedents in formulation of principles, doctrines and how does it contribute to law making.

Alf Ross's Critique of American Legal Realism - and a Naturalistic Critique of Ross

Alf Ross's Critique of American Legal Realism - and a Naturalistic Critique of Ross

Piotr Winczorek – badacz, nauczyciel i przyjaciel

This article was written to commemorate Professor Piotr Winczorek, who passed away on 9 February 2015. He was associated with the Faculty of Law and Administration of the University of Warsaw for over 50 years. However, the article focuses on three dimensions of Professor’s academic activity: those of a researcher, teacher and friend. Piotr Winczorek’s scientific interests evolved. Initially, he studied the functioning of political parties, especially in Poland during the communist regime. In this context, he tried to study various forms of social and political pluralism. In the 1980s, Piotr Winczorek concentrated on the issues of legal theory, developing his own approach to legal realism. After 1989, Professor focused on issues of public law, especially on axiological assumptions and the practice of constitutionalism, particularly the primacy of the constitution in the legal order, the rule of law, the separation of powers, and equality before the law. Piotr Winczorek was also an extraordinary teacher. He conducted classes with students, initiated new subjects and new curricula. He wrote several textbooks and coursebooks for students, including the textbook Introduction to Jurisprudence, which had 14 editions published over the past 30 years. Professor was also known for his many articles and commentaries on constitutional issues. For his younger colleagues, Piotr Winczorek was a true friend. He would invite them on a daily basis to cooperate, do joint research, and publish together. He also showed great civil courage in defending us against bureaucratic or political attacks. His honesty and wisdom is still remembered well beyond the walls of the University of Warsaw.