Legal realism can also be described as an approach to law that is naturalistic. Not following the traditional legal principles but in effect challenging these traditional principles. Legal realism holds that the courts can apply in a logical and objective manner the rules and principles that guide them.
The legal realism movement was started in 1881 by Oliver Wendell Holmes Junior when he published The Common Law. The publication was an attack on the traditional view of the law. Those that believed in the legal realism movement were referred to as realists.
There are five schools of thought that dominate this movement:
- Power and economics in society
- Persuasion and Characteristics of the individual judges
- Society’s welfare
- Practical approach to a durable result
- Synthesis of legal philosophies
Power and Economics in Society
This school of thought holds that the law is tailored so as to suit the interests of the most powerful members of society. In essence, the law should not be changed so as to prevent an outcome that would be in the best interest of members of the public.
Examples of these laws that the realists were against are in the case of labor laws that would allow management to replace any striking workers and contract laws that allowed the employers to terminate contracts with their employees at will without any legal reason.
Persuasion and Characteristics of the Individual Judges
In this case, the realists believed that the law or the outcome of a case was dependent on the religious, cultural and political ideologies of the judge. To the realists, the law was nothing more than what the courts said it was on any specific day.
Formalists, who were opposed to the realist’s view of the law, were of the opinion that the judges only interpreted what the law already stated and that their judgment was not clouded by their personal thoughts and views.
The realists were convinced that the law principles that existed could be manipulated by the judiciary and they were concerned that this could spark chaos and instability in the society if every judge were to follow their political beliefs.
The realists held that the judges should decide cases in a manner that would maximize the pleasure of the most fragile members of society. This school of thought enabled a change in the law that saw legislation put in place that protected the rights of vulnerable employees, especially women, protecting them from harsh working environments.
Practical Approach to a Durable Result
This school of thought sought to utilize the common law to settle legal disputes in a practical manner. A judge was expected to take a four-step process when giving an opinion.
First, the judge was to identify all the competing interests in the case. He or she was then to analyze all the possible ways of handling the case. The judge was then to weigh all the possible consequences of each of the possible ways of handling the case and their effect on the individuals involved.
Finally, the judge was to choose an outcome with the most suitable and durable result.
Synthesis of Legal Philosophies
With this school of thought, the realist movement sought to unify all the preceding thoughts into one.
Since they had already established that a judges’ decision could be influenced by his or her sociological, political, historical and economic thoughts, lawyers who studied these elements in depth had a clearer and better idea of how a judge would rule in a case.