Open AccessLEGAL REALISM AS DIRECTION OF SOCIOLOGICAL JURISPRUDENCE
Author(s) -
Oleksandr Voloshenyuk
Publication year - 2020
Publication title -
vìsnik harkìvsʹkogo nacìonalʹnogo unìversitetu ìmenì v.n. karazìna. serìâ pravo
Language(s) - English
Resource type - Journals
ISSN - 2075-1834
DOI - 10.26565/2075-1834-2020-29-03
Subject(s) - legal realism , legal formalism , jurisprudence , law , supreme court , empirical legal studies , adjudication , legal profession , sociology , sociology of law , realism , majority opinion , legal opinion , legal research , political science , legal history , comparative law , black letter law , epistemology , private law , philosophy
The article is devoted to the disclosure of features of legal realism as a special direction of sociological jurisprudence. The historical prerequisites for the formation of American legal realism are considered. It was emphasized that legal realism emerged as a reaction to the formal principle of adjudication, which insisted on the need for strict adherence to case law. The leader of American legal formalism, K. Langdell, viewed law as a combination of legal concepts derived by inductively generalizing previous court decisions. It has been proven that one of the first to disagree with this approach was judges of U.S. Supreme Court Justice O. Holmes and B. Cardozo. A comparative analysis of the views of K. Llewellyn and J. Frank, who are recognized leaders of the movement of legal realism, was done. It was established that K. Llewellyn considered that law is not only the judge decide but also any other persons with powers over the disputes. He paid particular attention to the study of the activities of the High Courts and emphasized the need to use the so-called Grand-style in the judicial decision-making process, which allows the law to be adapted to the real circumstances of the case and to contemporary social change. In contrast, J. Frank insisted that the judge was the creator of the law, and that the courts of first instance played a major role in the administration of justice. In his opinion, one of the decisive factors in the administration of justice is the personality of the judge, his individual and psychological qualities. It has been found that despite the lack of unity of positions of the supporters of legal realism, they are united by the underestimation of positive law as a factor of certainty and stability of legal relations, an instrumental approach to law and excessive psychologization of the judicial process. It is concluded that despite the significant shortcomings inherent in legal realism, this line of legal thought has made a significant impact on the general theory and philosophy of law through the combination of methods of sociological and psychological study of legal reality and the disclosure of internal mechanisms of formation judicial decisions.