Legal Realism Research Articles

The Legal Realists on Political Economy

Abstract Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued that there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic mainstream of their era, which did not challenge the legitimacy of market capitalism but wanted to see markets better regulated. I also show that for many of these realists, there were important connections between their jurisprudential and political-economic ideas. I then turn to some neglected writings of Felix Cohen to show that he too saw a direct link between his legal and economic ideas. However, unlike the other legal realists discussed here, he was a radical critic of market capitalism. I use his political-economic writings for a reconsideration of his better-known jurisprudential works.

Implications of Digitalization and AI in the Justice System: A Glance at the Socio-legal Angle

This research paper critically explores the digital transformation of justice systems, applying the theoretical frameworks of “Law and Society” and “Legal Realism” to analyze the socio-legal implications of this shift. As digital technologies increasingly permeate the judicial landscape, they bring opportunities and challenges. The “Law and Society” theory, which views law as a social phenomenon shaped by cultural, economic, and political factors, is crucial for understanding how digital tools can redefine accessibility and inclusivity within the legal system. Conversely, “Legal Realism” focuses on the practical outcomes of legal processes, emphasizing the importance of assessing the real-world effectiveness of these digital tools. This paper discusses the potential benefits and significant challenges posed by digital justice systems, such as disparities in technological adoption and the risk of exacerbating existing inequalities. This study highlights the operational efficiencies gained and the barriers encountered by examining digital initiatives across various jurisdictions. It provides a nuanced view of how digitalization can bridge and widen legal access gaps, emphasizing the need for a balanced approach that considers both technological advancements and their socio-legal impacts. This analysis aims to contribute to the discourse on modernizing justice systems in a way that is equitable, effective, and reflective of contemporary societal needs.

Intellectual Property Rights in the Era of Artificial Intelligence

Purpose: The general objective of this study was to explore Intellectual Property Rights in the era of Artificial Intelligence. Methodology: The study adopted a desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. Desk research is basically involved in collecting data from existing resources hence it is often considered a low cost technique as compared to field research, as the main cost is involved in executive’s time, telephone charges and directories. Thus, the study relied on already published studies, reports and statistics. This secondary data was easily accessed through the online journals and library. Findings: The findings reveal that there exists a contextual and methodological gap relating to Intellectual Property Rights in the era of Artificial Intelligence. Preliminary empirical review revealed that the era of Artificial Intelligence (AI) has significantly transformed the landscape of Intellectual Property Rights (IPR), presenting both opportunities and challenges. It highlighted that traditional IP laws are increasingly inadequate to address the complexities introduced by AI-generated content, necessitating a rethinking of existing frameworks. The study emphasized the need for recognizing AI's role in the creation of new works and inventions and the importance of developing balanced approaches to protect both human and AI contributions. Ethical considerations, such as accountability, transparency, and fairness, were also deemed crucial in ensuring responsible AI use. Overall, the study called for a comprehensive and proactive approach to integrate AI into IPR, ensuring robust protections while fostering innovation. Unique Contribution to Theory, Practice and Policy: The Technological Determinism Theory, Innovation Diffusion Theory and Legal Realism Theory may be used to anchor future studies on Intellectual Property Rights in the era of Artificial Intelligence. The study recommended revising existing IP laws to explicitly include AI-generated content and inventions, clarifying criteria for authorship and inventorship. It suggested expanding theoretical frameworks to accommodate AI contributions, emphasizing the collaborative nature of human and AI creativity. Practical measures, such as enhanced cybersecurity and legal safeguards for AI-generated trade secrets, were advised. Policy-wise, the study advocated for international cooperation to harmonize IP laws concerning AI. Developing ethical guidelines for responsible AI use and implementing education programs to inform stakeholders about AI and IP implications were also recommended. These measures aimed to create a balanced IP framework supporting innovation while protecting the rights of all stakeholders.

The Evolution of Intellectual Property Rights in the Digital Age

Purpose: This study sought to explore the evolution of intellectual property rights in the digital age. Methodology: The study adopted a desktop research methodology. Desk research refers to secondary data or that which can be collected without fieldwork. Desk research is basically involved in collecting data from existing resources hence it is often considered a low cost technique as compared to field research, as the main cost is involved in executive’s time, telephone charges and directories. Thus, the study relied on already published studies, reports and statistics. This secondary data was easily accessed through the online journals and library. Findings: The findings reveal that there exists a contextual and methodological gap relating to the evolution of intellectual property rights in the digital age. Preliminary empirical review revealed that the digital age has significantly transformed the landscape of intellectual property rights, necessitating adaptations to traditional IP frameworks to address new challenges such as digital content piracy and unauthorized distribution. It was found that while digital technologies, like blockchain and NFTs, offer potential solutions for enhanced IP protection, existing laws often fell short of addressing the complexities introduced by these advancements. The study highlighted the need for harmonized international standards and ongoing adaptation to effectively manage and protect intellectual property in the rapidly evolving digital environment. Unique Contribution to Theory, Practice and Policy: The Theory of Technological Determinism, Social Construction of Technology (SCOT) Theory and the Theory of Legal Realism may be used to anchor future studies on the evolution of intellectual property. The study recommended several strategies to address the evolving challenges in intellectual property rights due to digital advancements. It suggested the adoption of technologies like blockchain for better IP management and the need for improved international cooperation to address cross-border enforcement issues. Additionally, it advised policymakers to harmonize IP standards globally and support innovations in IP protection technologies. The study also emphasized the importance of education to enhance awareness of digital IP rights and recommended legal reforms to update existing laws to better suit the digital age.

The Influence of Positivism and Empirism in The Enforcement of Islamic Inheritance Law in Indonesia

Positivism and empiricism are modern paradigms become the basic guidelines for the schools of legal philosophy, namely legal positivism and legal realism. However, the current condition in Indonesia is dominated by the paradigm of legal positivism so that everything must be by written law. The practice of inheritance division that is always based on the concept of 2:1 as in the Compilation of Islamic Law is felt to be incompatible with community justice. The purpose of this research is to enrich the study of the positivism and empiricism paradigms as a renewal of Islamic inheritance law in Indonesia. The benefit of this research is to inform that the integration of positivism and empiricism in law will produce competent law enforcement. This research is a normative research with a conceptual approach and data sources in the form of literature and data analysis techniques, namely evaluation. The results of this research are; (1) The factor that causes judges in Indonesia to use the judicial restraint approach excessively as a characteristic of legal positivism is the legal culture of the application of the civil law legal system. (2) The solution to the problem offered is to borrow Fazlur Rahman's double movement theory, namely historical contextualisation by taking universal values from the norm. Therefore, it is time for judges to be free to move to realize moral justice within the limits set by the Constitution and the Law on Judicial Power.

Kasus Fidelis Ditangkap Dan Ditahan Atas Kepemilikan Batang Ganja Untuk Pengobatan Sang Istri Ditinjau Dari Aliran Realisme Hukum

Legal realism is a school that does not agree with the existence of precedents (the existence of ties between a judge's decision and previous judge's decisions in dealing with similar issues). And understanding legal realism views the law as an advocate views the law. For an advocate, the most important thing in looking at the law is how to predict the outcome of a legal process and what the future holds for these legal rules. The school of legal realism actually hopes for the role of judges in realizing justice, so that in certain cases judges do not always adhere to the provisions contained in legislation only (rule-responsive), they also need to look at the situation that actually occurs in practice (fact-responsive). In this case, it seems that the judge took into account the existence of legal realism by assessing the facts that prompted Fidelis to commit a crime (possessing 39 marijuana stalks) for the treatment of his wife, so the judge imposed a sentence on Fidelis that was far from the minimum threat. And criticism of the school of legal realism was also raised regarding matters relating to its views on the judicial process. In this case, criticism is raised against the Normative statement and the concept of "logic", whereas the realist emphasis is only on difficult cases. Keywords: Ownership of Marijuana Stems, Treatment of the Wife, Legal Realism

Taking Personhood Seriously

This Article takes the recent Twitter merger litigation, along with other high-profile legal developments, as an opportunity to re-examine one of the most important, and misunderstood, concepts in the modern social landscape: legal personhood. The Article makes three main contributions to the literature: first, it originally connects several key stages in personhood’s historical development, from the common law, through the hurdles of legal realism and the early law and economics movement, to the recent revival of substantive personhood, both in scholarship and following the Supreme Court’s decisions on corporate constitutional rights. It then integrates this history with an analysis of the legal scene where personhood achieved its most profound impact, from the 1980s takeover era to the Twitter story: Delaware corporate law. Finally, this Article builds upon these insights to offer a new theoretical account of personhood as a legal degree of freedom, which holds the capacity to generate a practically unlimited range of situational outcomes. So far, scholars have tended to discuss personhood in a limited, context-specific manner. This Article brings personhood front and center in its own right, illustrating for the first time how personhood can be a no less, and often more, significant fact of legal life than contract, property, or public law, and why we should place it at the start of the analysis, prior to delving into the policy discussion of the day.

ПОСТУЛАТЫ ШКОЛЫ КРИТИЧЕСКИХ ПРАВОВЫХ ИССЛЕДОВАНИЙ (НА ПРИМЕРЕ СОЦИАЛЬНО-ПРАВОВОЙ ТЕОРИИ Р.М. УНГЕРА)

The purpose of the work was to identify and formulate the main provisions, the initial views of supporters of the School of Critical Legal Studies, which have developed in the United States since the 1970s of the twentieth century, through an analysis of the views of one of the activists of the movement of critical legal studies, the Brazilian statesman and jurist Roberto Mangabeira Unger. The objectives of the work include studying the conditions for the emergence and origins of critical legal research, analyzing the methodological basis, studying the works and statements of R. Unger, formulating the postulates of the school of critical legal research and the foundations of R. Unger’s political and legal theory. To achieve the set goal and solve problems, the author uses such general scientific and specific scientific methods as analysis, synthesis, historical, system-structural, comparative methods. In addition, the author's interpretation of R. Unger's views is presented based on the translation of his Englishlanguage works.Results: objective and subjective factors in the formation of the School of Critical Legal Studies have been identified, the connection between the ideas of the school’s supporters and the moderate direction of American sociological jurisprudence and the realistic school of law has been identified, the main postulates of the supporters of critical legal studies have been formulated based on the provisions of the political and legal views of R. Unger. Conclusions: The school of critical legal studies arose on the basis of an understanding of law primarily as a social institution designed to ensure a balance of individual, social and state interests. Like legal realists, representatives of the school tried to demythologize legal phenomena by analyzing the legal life of society. In addition, Unger, appealing to O. Holmes’s views on law as a product of experience, saw the further development of human society through the introduction of new technologies and experiments based on social solidarity and cooperation, when the state and law act as guardians of society and do not limit it progressive development.

The Legal Realists on Law and Literature

The Legal Realists on Law and Literature

Commercial Common Sense in Contract Interpretation: A Legal Realist Analysis

Commercial Common Sense in Contract Interpretation: A Legal Realist Analysis

The Judiciary in the Thought of Oliveira Vianna

Between 1920 and 1930, Oliveira Vianna theoretically formulated a new model of the judiciary, aiming for its integration into a corporatist-authoritarian power project that sought to reorganize society and the state. Vianna envisioned a robust judiciary, notwithstanding the dominance of the executive power and administrative agencies. This strength would emerge from the use of the "legal technique" of American legal realism. Moreover, due to its centralization in the Union, judges were expected to play a role in restraining deviations of legislative power and local authorities. The result was an institutional arrangement under tension, where the judiciary served the organization of the Nation but held a position subordinate to that of the head of the national executive power. These tensions reveal legal dilemmas in both authoritarian and democratic contexts.

К ВОПРОСУ ФОРМИРОВАНИЯ ЭТИЧЕСКОЙ ПОЗИЦИИ БУДУЩЕГО ЮРИСТА

The article examines the concept of the ethical position of a lawyer and identifies the main directions of its possible research. The task is to determine the moral foundations and professional values in the law enforcement activities of the future lawyer. The results of a pilot experiment comparing the attitude to law (standardized methodology) and the formation of an ethical position (the author's mini-cases identifying latent support for the rule of law) of second-year legal students are given. The predominance of legal realism of the majority of students, but the unwillingness to demonstrate the ethical position of the future lawyer in legal mini-cases, has been established. The conclusion is made about the need for targeted pedagogical influence during training, contributing to the formation of a stable ethical position of the future lawyer, based exclusively on the rules of law.

Understanding Russian Legal Realism in the Modern Science

This paper is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in particular. Current approaches to the analysis, reconstruction and criticism of legal realism are being developed by leading scholars that indicates the importance of the realistic paradigm in law. The approaches to understanding Russian legal realism considered in the paper especially in the context of classic American and Scandinavian realistic movements allow analyzing the trends in the further development of the theory and practice of legal realism in Russia. The subject of the study is the approaches of modern scholars to the phenomenon of Russian legal realism. The purpose of the work is to clarify the reasonableness of the identification of the Russian realistic movement in law. The novelty of the topic consists of the analysis of works that have appeared in the last decade on the subject of Russian legal realism including a comparison of the principal opinions available in science about the representatives of this movement and the prospects for its recognition as a “classic” realistic movement along with American and Scandinavian legal realism. Descriptive, formal logical and comparative legal methods were used as the key research methods including the analysis of the works of the authors of the English-language collective monograph “Russian Legal Realism” (2018, Springer) and the comparison of American, Scandinavian and Russian realistic movements in jurisprudence. The main conclusions of the paper are the necessity for further research of Russian legal thought of the late 19th–early 20th centuries and its development in the 20th–21st centuries in order to distinguish more clearly the Russian version of legal realism among diverse psychological and sociological theories as well as to compare presumably realistic ideas in Russia with the already acknowledged classic movements of legal realism in the USA and Scandinavia. The significance of such a comparative analysis for justification the existence of a specific Russian movement of legal realism is emphasized. Despite many methodological difficulties an understanding of Russian legal realism is provided that distinguishes the works of its predecessors at the end of the 19th century and supporters (theorists and practitioners) in the 20th century: the proposed understanding also actualizes their significant influence on Russian legal realities in the 21st century.

Legal Protection of Health Workers Against Alleged Acts of Abortion that Have Been Committed: A Legal Realism Approach

Dewasa ini, para tenaga kesehatan yang membantu melakukan aborsi atas permintaan ibu/orang tua selalu didakwa dan dijatuhi hukuman berdasarkan KUHP, padahal tenaga kesehatan sifatnya adalah lex spesialis yang mana memiliki peraturannya sendiri. Kenyataanya, setiap orang termasuk tenaga Kesehatan yang membantu melakukan aborsi selalu dibawa ke jalur hukum untuk langsung diamankan.Tujuan dari penelitian ini adalah untuk mengetahui perlindungan hukum tenaga kesehatan terhadap dugaan tindakan aborsi yang telah dilakukan: pendekatan realisme hukum.Pendekatan yang digunakan dalam penelitian ini adalah pendekatan yuridis normatif, Penelitian ini secara yuridis akan dikaji aspek normatif tentang perlindungan hukum pasien berdasarkan asas kepastian hukum dan peraturan perundang-undangan yang menitikberatkan pada konseptual approach, dan statute approach. Teknik analisis data dalam penelitian ini menggunakan teknik analisis kualitatif.Berdasarkan hasil penelitian menunjukkan bahwa gerakan realisme hukum ini memberikan kesempatan kepada tenaga kesehatan sebagai terduga pelaku tindakan aborsi untuk tidak dilakukan penahanan sebelum terbukti bersalah. Sebab, belum tentu yang dilakukan karena persekongkolan dengan ibu/orang tua. Ada kewenangan dari organisasi profesi tenaga Kesehatan untuk meninjau kebenaran dari kasus ini. Polisi tidak boleh langsung menahan tenaga kesehatan karena hal itu akan mengganggu jalannya pelayanan kesehatan yang diberikan dan mencederai konsep realisme hukum. Upaya untuk tidak menahan tenaga kesehatan merupakan solusi perlindungan hukum tenaga kesehatan atas kasus dugaan tindakan aborsi agar tidak mencederai pelayanan kesehatan yang akan dilakukan oleh tenaga kesehatan tersebut.

About the realism of legal realism

The article discusses the problems of clarifying the nature, content and orientation of legal realism, which has become a popular modern approach to understanding law, primarily related to the history of legal thought in the United States, as well as the works of some Scandinavian authors of the twentieth century. The article demonstrates that legal realism in the interpretation of American and Scandinavian authors often reproduces realism in a peculiar way as a technique of epistemological and ontological nature. As a kind of original paradigm for understanding issues of legal practice and overcoming gaps in legal regulation, American legal realism can be an interesting object of study, however, as a theoretical concept or methodological technique, it has many vulnerabilities, which are especially evident when properly reconstructing the history of legal thought. The novelty of the research lies in highlighting the problems of legal realism from a critical position, both in terms of its name and semantic content. The study draws parallels between the ideas of Marxism about the prospect of the extinction of over-the-top phenomena, such as law, and the slogans of American legal realists about the need to fight theory and conceptualism. New directions and perspectives of the analysis of the history of legal thought of the twentieth century are outlined, which make it possible to more accurately identify the actual scientific and cognitive potential of approaches claiming a realistic understanding of law. It is shown that the requirement of reasonableness and overcoming excessive dogmatism are a cross-cutting theme for the history of legal thought.

The Legalisation of Child Pornography in Sweden and What Followed (1969-1999)


 
 
 After some years of debate among intellectuals about the freedom of individuals in relation to the state, sexual intercourse in public was legalised in Sweden in 1971 with an age limit of 15 for participants, and all kinds of printed pornography were legalised without an age limit for those involved. (The representation and private adult consumption of pornography in moving images remained legally unregulated like before.) The reform was similar to a reform that had entered into force in Denmark in 1969. A re-regulation of pornography was carried out during the period 1973-1999. The result of this study shows that although child pornography in print and sexual intercourse in public were criminalised during the rule of conservative Governments (1976-1982), it was not until 1990 that all political parties took a firm stand against child pornography in moving images. The results have been interpreted in the light of the Scandinavian legal realism that characterised Swedish legislation until the 1990s.
 
 

Digestive Jurisprudence Restated: On Breakfast and Digestion as Bias-Arousers

“Digestive Jurisprudence” is the view that judicial decisions depend on what judges had for breakfast. The view is usually associated with Frank’s version of Legal Realism. The paper shows that, disputable as it is, that view comes from the philosophical background of Peirce’s pragmatism and the legal background of Holmes’ prediction theory. Peirce’s pragmatism was an account of concepts in terms of their predictable consequences. Holmes’ prediction theory was an account of law in terms of predictions of what judges will do. And Legal Realism focused on judicial behavior as determined by various factors including, in its most extreme and provocative version, breakfast quality and digestive processes. The paper does not ascertain whether the digestive view is true (to some extent); rather, it makes the working hypothesis that breakfast quality, or digestion quality, is not a sufficient condition of a certain outcome but, most likely, a bias-arouser.

Systemic Hypocrisy in United States Foreign Policy

Why is contemporary United States foreign policy systemically hypocritical? This essay offers a legal realist perspective, which considers human rights and democracy-oriented narratives as morally appealing meta-discourses that are subject to reframing, weaponisation, and instrumentalisation by a wide variety of contending political actors in pursuit of concrete material or policy objectives. The perspective of legal realism is used in the case of post-Cold War United States foreign policy to understand how normative discourses are used across various geographies of geopolitical contestations in which state-initiated violence and death are prevalent. This commentary suggests that in pursuit of its geostrategic and economic objectives, the United States government’s human rights rhetoric abroad did not match the actual consequences of its domestic and foreign policies, thereby showing systemic hypocrisy.

On benefits of new legal realism for international tax scholarship

ABSTRACT Specialists in international tax law tend to adopt a legal positivism perspective. Although not without merit, legal positivism alone offers an incomplete understanding of international tax law for the purposes of legal theory, law-making and practice. In comparing new legal realism with legal positivism, this article will demonstrate how analytical frameworks that incorporate a new legal realism approach can enhance our understanding of international tax law and its concepts, by viewing it through the real-world lens. It will also outline some issues for future empirical analysis that could help to advance legal positivism theory and connect law-making and the practice of international tax law to the real world.

Legal Realism Roscoe Pound dalam Sidang Pleno MA 2019 tentang Nafkah Madhiyah Anak

The child’s madhiyah income is past income for the child which was not paid for by the father when the father and mother were still in a marriage bond. And the maintenance of this child’s madhiyah is usually required to be paid at the time or after a divorce occurs. This study aims to determine the relevance of Roscoe Pound’s theory of legal realism in the 2019 Supreme Court Plenary Session on the maintenance of madhiyah children. The research method uses a type of library research or library research, with a qualitative approach. The result of his research is that Roscoe Pound’s legal realism thinking prioritizes practical goals. According to Pound, legal practice and its impact on society are more important than the legal texts themselves. Supreme Court Decision No. 608/K/AG/2003 concerning refusal to provide for a child’s madhiyah is considered to be injurious to the value of justice. Until finally the plenary session of the Supreme Court chamber in 2019 decided that a child’s madhiyah maintenance could be brought to court. From the results of the research above, there is a correlation between Roscoe Pound’s legal realism theory and the 2019 Supreme Court chamber plenary session regarding the maintenance of madhiyah children. This research is expected to open up philosophical insights into a legal decision.
 Keywords: Legal Realism, Child Madhiyah Support, Plenary Session of the Supreme Court