Discuss features of realism. Give two examples that explain realism in practice
Legal realism is a philosophy that the law should be applied by judges according to certain principles. It developed in the late 1800's, chiefly by Oliver Wendell Holmes, in opposition to the traditional philosophy of legal formalism.
Legal realists generally felt that the law was not always applied fairly. They questioned the neutrality of laws that all too often favored the powerful. So they adopted a set of principles that they felt realistically looked at the behavior of judges and also helped ensure that the law benefited all the people, not just the powerful. Those principles are:
1. The law usually helps the powerful maintain their wealth. Realists helped combat this problem by frequently ruling against interests who sought monopolistic power.
The following is an example from legal-dictionary.thefreedictionary.com that demonstrates this principle:
For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 a.d. 270 (1805), a downstream landowner asked the New York Supreme Court to grant him the exclusive right to use river water for commercial activity despite any injuries that might result to upstream owners. The court refused to grant such a right because if it did "the public would be deprived of the benefit which always attends competition and rivalry."
2. Judges have their own personal styles and beliefs. Legal formalists would have you believe that the law can only be interpreted correctly in one way. But because of the terms that are used in creating laws, much of the interpretation of the law's applicability in a given case is a matter of a judge's opinion. Those opinions can vary widely, depending on a judges on beliefs and prejudices.
Here's another example from legal-dictionary.thefreedictionary.com:
In The Nature of the Judicial Process, a groundbreaking book first published in 1921, [Supreme Court Justice Cardozo] argued that law is a malleable instrument that allows judges to mold amorphous words like reasonable care, unreasonable restraint of trade, anddue process to justify any outcome they desire.
3. Judges should consider the overall effect of their decisions on society. It is proper, according to a legal realist, to consider what will happen to society as a result of his decision. The aftermath of a ruling matters.
4. Judges should be practical in their decision making and try to arrive at a “durable” decision that will have lasting value.
5. Lawyers should look at the history of a specific judge in order to understand what might happen in his court. It isn't enough just to examine the laws in question in a specific case, you must try study the judge too.