Legal realism and its importance in law
Historically, legal thinkers have discussed the different theories or conceptions from which the right in their practical sense is based or should be performed. Among them we have as more frequent and attached;Iusnaturalism and iuspositivism, aspects that bring us analogous positions on law, the first admits that natural law is that "ideal" that has no limitations of time or space, it is innate to be from the rationalist and rational point of view andIn the same way it has its religious variations that approve that a right comes from divinity. As for positive law, this is only interpreted as that set of current written norms that must be complied with as approved.
Contrary to these and other aspects and fundamentals we find legal realism, the main object of analysis in this essay. Legal realism contains some variants, but this generally conceives of law as that real practice regarding the behavior of the human being, which leaves the ideal taxes of justice of natural law, as well as the positive legal systems as in this right.
Legal realism is a way of conceiving law from the different indications of behavior of a society and the human being that seeks the effectiveness and relevance of the norms that unlike other foundations or theories that seek justice and validity. That is, legalistic realists have a more practical vision of law, taking with great consideration the decisions of the courts and judges and how these were taken, the background and behaviors of both those involved in the process, as well as the judgesthat preceded these decisions factors known as extrajuridic. Thus, from this aspect, law is defined as a discipline that enjoys a kind of uncertainty regarding the changing characteristic of it.
It is important that we make the analysis of how this theory or foundation is born and implemented, the author Bobbio defines three moments in which legal realism is being developed in its various points and why this is so important and one of the most effective,We will analyze these three specific moments or points to have greater clarity of the origin of this thought.
We have as a first point that legal realism was born against the imposition of legal romanticism which aims to be rational and imposing before a society that intends to be always equal or stable, that is why the historical school of the right that had as one of itsRepresentatives to the author Savigny, establishes as a principle that the law cannot be this rational if it must be presented to the reality of changing society and its spontaneous behavior. In this sense, it is important to emphasize that from these statements the idea of taking the custom as an indication of law arises. As a second point, it arises as a consequence of the industrial revolution where we find the sociological conception of law, this is born when seeing the ineffectiveness of valid norms and the application of an effective right is sought more, not as much as in the previous point, fromthe custom, if not from the decisions of the judges with respect to each specific case and their needs. And, finally, as a third point we must already mention the integral application of these postulates, that is, the applications of the judges who become "creators of law" specifically in North America. (Bobbio, 1991)
Before analyzing the two types of realism as well as the American and the Scandinavian, it is created to analyze the different types of thesis on which legal realism is based, which resolves some gaps in terms of the application of legal realism and characterizes it inthree thesis from which three important questions arise when solving.
We find methodological realism, which raises what is the interpretive form of the right that refers to the judicial interpretation activity carried out by the judges when resolving the cases, as well as the jurists or lawyers who analyze all the legal texts ornormative, this activity is defined as an activity of will and not knowledge.(Kelsen, 1934)
Following this Ricardo Guastini states that jurists do a kind of construction when treating the norms, we have the existence of lagoons, the hierarchies existing between norms and consequently the application of principles, weighting, and the existence of the existence ofnon -explicit norms that are usually born from interpretation. We also have ontological realism that tries to define the law either as a set of laws or normative texts that are dictated by competent authorities following all the steps for it and that are in force, all these rules clearly with their proper interpretation and scope according to thecase concrete. And finally, we have epistemological realism which tells us about the law as part of a scientific knowledge, which comes from the doctrine, of interpretation, of the practice referring to jurisprudence and the regulations that are in force.(Guastini, 2013)
As is of knowledge, there are two clear differentiations between legal or legalistic legalistic realisms, who guide differences from their conceptions, their actions and their origins, despite this they generally have several similarities that are of fundamental analysis:
American legal realism
This is the name of a group of theories and foundations of US authors who create guidelines on legal realism. Judge Holmes who have been recognized for having a very clear position against the application and the foundations of law can be identified as a key indication, he argued that the obligations that come from the laws are nothing more than a kind ofprediction that whether or not men do or not certain things have to suffer a punishment or sentence. (Holmes, 1897)
This postulate meant the beginning of the legalist to define law as a practical and logical system that as already mentioned above pays attention to the changing nature of societies and law, this criticism in the face of typical and frequent institutions in law also alsoIt extended to the political and economic issue of the United States that was cracked by the events of World War II. (Latorre, 1968)
The presence of legal realism in the United States, achieved a change in actions of judges, jurists, lawyers and even the way of teaching law within schools. According to some authors, three premises are identified that can generally define the positions collected from some authors on legal realism. The first highlights the difference between the written norm and what happens in reality, the second talks about the lack of coincidence between the norms that are general and the behaviors in specific cases and finally there is an awareness that the functionJudicial can be a creator of law. (Pekelis, 2002)
Scandinavian legal realism
This current comes from Europe, this current goes against iusnaturalism and positivism and the formality of its norms. This realism wants to be merely rational when analyzing the law, maintaining that if you wantedcan give in this, subjecting it to a purely objective analysis. The most obvious difference between the legal realism of North America and the Scandinavian is that unlike the first. (Latorre, 1968)
That is, these analyzed in general the entire legal spectrum and not only the decisions of the different courts in specific cases, so it could be said that Scandinavian legal realism is broader when analyzing the various realities without looking at aSingle point.
The aforementioned is given, among other reasons why the Americans mentioned the judges as creators of law, instead the Scandinavian realists establish that this would not make sense since a point would arrive where the judges decide the cases with the rules thatThey themselves have created with respect to a single reality, that is why, as already established, a general system analysis is sought and not only of a standard that serves as an example to a single case.
In an unofficial way within the doctrine, a type of realism has also been identified that is not included in the analyzes frequently, there is talk of the existence of a Soviet legal realism, which includes not only the different conceptions in thelegal plan but also on the political and sociological level of the time.
This type of realism is totally disconnected from the Scandinavian and the American especially in their liberal parameters and focuses more on Marxist definitions and postulates, which says in a general way that bourgeois law is a weapon or an instrument to oppress to a greater extent toThe lowest social classes or the proletariat, begin to talk about a revolutionary justice in which the judges and courts should only apply the decrees of a Council of Commissioners of the People, where issues that are in contradiction of contradiction ofThese ideals so this type of realism seeksAs we can see this change was fundamental within the courts and of course within the jurists. (Stucka, 1974)
As previously mentioned, the different sources of realism are coupled to the different legal systems around history, a great sample of this is the practice of Anglo -Saxon law, as we can also mention the jurisprudential and preceding practice in precedents inUnited States, where judges are real creators of jurisprudential or law precedents since the majority of resolutions of coming cases mean serious postulated from previous cases. In our country we find even more the prevalence of positive law, that right that is written and in force, but that is undoubtedly changed to social needs
In conclusion, we have that legal realism is a conception of law that goes far beyond traditional conceptions, that is, this position appeals much more to the realities and concrete behaviors of people to define the law. Try to have a much more real analysis of the effectiveLook for iusnaturalism in its different aspects that were initially mentioned. Within the analysis of the different types of realisms, we see how it has already been analyzed, broader to Scandinavian realism that does not focus on the actions of the judges but also on the legal system in general and can be better at the time ofattend to the need to create new standards. This current is very interesting when analyzing the regulations and effectiveness of these within the countries.
Bibliography
- Bobbio, n. (1991). General Theory of Law .
- Guastini, r. (2013). Redefined legal realism. .
- Holmes, or. (1897). THE ROAD OF THE LAW.
- Kelsen, h. (1934). About the theory of interpretation.
- Latorre, a. (1968). Introduction to Law. Barcelona: Ariel.
- Pekelis, a. (2002). The key to an estimated legal science. Jan. Haba, American thought.
- Stucka. (1974). Law and revolution.
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