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Realism Vs Legal Realism Essay

Amid the transverse from the bounds of conventional life to constitutionality we find ourselves at a divergence of sorts. A proverbial fork in the road that only jurisprudents must navigate. On the left we have the concept of legal realism while on the right we have the more dialectic concept of legal formalism. It is in this vein of thought that I base this paper on with the added objective of juxtaposing the two concepts. After which it will become increasingly apparent that legal realism is the superior methodology.

Accordingly, my aim is to demonstrate that jurisprudents owe it to themselves, institution, and the people to utilize legal realism when determining a verdict. Are point of departure starts with first defining the concepts legal realism and legal formalism. Legal formalism is in a practical sense the direct interpretation of the law with no deviation in logic. A legalistic syllogism of sorts so one who would implement such methods is beholden to the systematic use of premise deduction. Formalists would abhor any outside convention outside the natural deduction established to the particulars of a case.

Legal realism is counteractive to the pure logical reason that legal formalism upholds. Legal realists determine that pure logic alone will never be pertinent in every litigation proceeding. Cases will arise when the judge will be required to account for extraneous factors that will not be considered when a formalist judge is at watch. Point of difference between the two methods being that a legal realist advocates the necessity of judicial interpretation while a legal formalist would contend that the law should be algorithmic through logic.

Former Supreme court justice Oliver Wendell Holmes a fierce opponent of legal formalism articulated that “if you want to know the law and nothing else, you must look at as a bad man, who cares only for the material consequences which such knowledge enables him to predict not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience” (Holmes). For I resign to this point when thinking of the debate between legal formalism & legal realism. Conceptually the point is that when we operate judicially as the metaphorical bad man then we are judging without morality.

Morality has obligatory relationship to the law. Should we treat the law as a logic like a legal mechanization then we run the risk of losing are morals in the process of attempting to distribute true justice. May we not forget that justice runs a parallel road with the necessitations of morality therefore we make laws for a preservation of morality. Albeit that the law is not a slave to morality or vice versa. Together they share a symbiotic relationship that harmoniously raises all ships ashore. A society must make it a point to not see the law beholden to any institution or ideology.

Risk of extraneous interference from theological or ideological conceptions is to great however to remove the morality element from the law on account of it being a theological principle is caustic to the natural objective of the law. Morality is a part to a greater whole in theology therefore when we conceive of morality then it should not be that we think of divinity. Essentially this is the same philosophy that we should also apply to the law. To treat morality as a whole instead of a part of something exclusive to religiosity is to be the bad man.

To treat the law without some character of morality is to be the bad man. Legal formalism circumnavigates the moral concerns of the law in return it becomes a cold calculated machine blind from seeing the bigger implications. Legal formalism is making the egregious error of abandoning necessary variables when determining the law furthermore to leave out morality is just one such necessary variable to account for. Risk of removing morality from the law runs the risk of tyranny still let me explain further on that controversial point.

For demonstrative purposes lets construct an imaginary state called Monarchastan. Monarchastan is a tyrannical state led by a lone despot whom recognizes that other responsibilities require him to delegate judging duties to appointed individuals of his choosing. Naturally then he chooses his judges meticulously along with explaining the expected duties of each individual. Subsequently he then rolls out a large draft of laws along with each rule is subtext that relays logistic commands such as if not a then b or apply this resolution in this case.

The tyrant of Monarchastan then explains to his newly appointed panel of judges that this is the law that you will see carried through. Should anyone deviate from the precise logical outline given then that individual will be subjected to the law. Purpose of this short story is to show that appointing judges with legal formalist exclusive mentalities is analogous with appointing legal indentured servants that have no autonomy of power or influence. Voice boxes so to speak of the law so by that logic it would be conceivable to see such responsibility to be delegated to an automatic system in the future.

Justice would take the shape of being a cold systematic machine of pure logic. Keep in mind that this supposed machine of logic would vary depending on the input of laws. Were the input draconian or unjust laws then the output would be of a nefarious nature. Because it would be absurd to ever conceive of a computer debating with the laws being possibly unjust in a given circumstance since that the input prevents the computer from any deviations from pure logic. Now let’s go back to Monarchastan where the newly appointed judges have just been given in all practical sense their input.

Practically all of the laws are self-serving to the tyrant plus it has Hammurabi like punishments for small offences. Again Monarchastan is led exclusively by formalist judges so no matter how inequitable the judge by legal formalist logic would be obligated to see the law carried out as it is written. Fortunately, we do not live in Monarchastan nevertheless the principle remains the same. Removing the autonomy of a judge being a judge runs a risk of perpetuating an unjust society.

Obviously the United States is not Monarchastan accordingly the nature of the establishment of the laws would be significantly less sinister. Once again though I have to maintain that the principle remains the same. Only in the United States the unjust application of the legal formalist methodology would be feeding into unjust laws instead of feeding into a lone tyrant like Monarchastan. In a nutshell the legal formalist method prevents judges from asking the critical questions, to look at the bigger picture, and in an ultimate sense to be a judge.

Legal formalism is an apathy of moral justice but perhaps that is the intent. Legal formalism is clearly a form of justice but also clearly a resignation of moral-justice. Essentially it resigns judges from looking at other crucial factors making justice the equivalent of a calculator. Justice must be distributed though it should also serve as a learning opportunity for the community as a whole that serves the need of societal progression. Cases do not just effect the individuals involved directly.

They also effect as well as shape the world around us so pretending as if judging is something outside politics is fraudulent. Legal realism takes account for all of this by acknowledging that other factors are at play when judging. Legal realism does not attempt to remove the morality from justice or perpetuate the repetition of an unjust law. It is interpretative albeit requiring the judge to be much more than just a calculator. On that I conclude with my final argument being that to judge is not to be a slave but to be a stoic arbiter of the law.

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