Summary
To speak of legal realism is to recognize law as an effective norm. Plato's classical current, Aristotle and Thomas Aquinas, see law as a just thing. On the other hand, the radical anti-metaphysical attitude of the Scandinavian thinkers Axel Hägerström, Karl Olivecrona and Alf Ross, maintain that the only reality to which legal phenomena correspond is psychology. The current that is born in the United States, where the life of law has not been logical: this has been the experience, according to the significance of the theory of Oliver Wendell Holmes.
What is important is the consideration of the formation of a new legal realism, based on the lines of thoughts on legal globalization, which are intertwined between the current and future law of countries, with social reality.
Introduction
This essay refers to the historical background of legal realism, and concentrates on the three most important currents, as well as their main exponents of each of them through the time line, also from a personal point of view, it is made the approach of a consideration on a possible new trend of legal realism, based on current times.
The objective of the development of this essay is to know the legal realism with an epistemological approach, going through the historical antecedents; as well as the analysis and explanation of the epistemology approach; entering the study of the points of reference of the three main currents of legal realism (classic, Scandinavian and American) and their main exponents; highlighting the importance of epistemology in the history of legal realism; as a penultimate point, exposing a personal consideration of a possible new trend of legal realism, in which current and future law are linked with the social reality of our times; finally the conclusions.
Background to legal realism
With the passage of time and throughout history, there have been various currents of legal realism, in the development of this essay we will only deal with three, considering that they are the most important. The first of these is classical realism, which is very different from the other two, that is, from Scandinavian and American.
This difference lies in the fact that the main exponents of classical realism (Plato, Aristotle, Thomas Aquinas and others), saw law as a just thing, and its main feature was to be a theory of justice and law, built from the jurist's perspective.
Scandinavian legal realism. This current is called this way, by the Scandinavian thinkers, who had in common their attitude "radical anti-metaphysics", according to them the only reality to which legal phenomena correspond is psychology.
On the other hand, In the Legal Review No. 90, of the UNAM Virtual Legal Library, states that:
This is characterized by having a much closer methodological closeness to problems of the legal order, in addition to less attention to judicial decisions. However, they share the fundamental, by taking an empiricist attitude towards human life, and consequently, towards the law.
As well as its main exponents of this trend, the magazine continues to point out that:
The founder of this movement was Axel Hägerström, who along with his disciple A. Vilhelm Lundstedt, and other representatives of this current, such as Karl Olivecrona and Alf Ross, questioned themselves about three basic problems regarding the nature and validity of the law; the significance or insignificance of the elementary conceptions of formalism, and what is characteristic of the notion of justice.
Finally, the American realism, which founds its base and origin in the legal theory of Oliver W Holmes, this current determines that the legal reality is the decisions of the courts. Being the reality of law the final decision of the courts; What is called a legal duty is nothing more than the prediction that if a man does or fails to do certain things, he will suffer such and such consequences due to a court ruling. On this basis developed in North America the realistic current that sought the reality on which the current law is based, and whose main protagonists are J. Frank and KN Llewelyn.
Now, we already know the background of the main currents of legal realism, as well as the birth and origin of the main idea of each of them.
What is the epistemological approach?
The term "epistemology" may seem a bit strange and unknown to us, to get familiar with it, it will be conceptualized in a very clear and simple way. pure, as well as in its causes ”.
The Spanish Royal Academy defines it as follows: (From the gr. Ἐπιστήμη, knowledge, and logy). 1. f. Doctrine of the foundations and methods of scientific knowledge.
To broaden this vision of this approach, it is necessary to point out in detail what the legal epistemology is in charge of, which is summarized in three points:
- Explain if knowledge is possible, what form it must have, what are its ways of presenting itself in society.
As we can see, the importance of this approach, since it enters into a deep reflection on knowledge; To expand further on this aspect, what is stated by Ricardo Teodoro Ricci is stated below:
Epistemology is, in my opinion, that point of view from which I relate to things, to phenomena, to men and eventually to the transcendent. This, which occurs in the personal and daily sphere, also occurs in the scientific sphere, where different currents and systems of thought proliferate that turn out to be, in short, ways of seeing the world.
So we have that epistemology is a science, and that the object of study is knowledge and the ways we have to produce it, which allows us to understand that our perception of reality is related to the point of view we have about something.
With the aforementioned, there is full assurance that what the term “epistemology” means has become clear, and thus better understand the approach that will be given to this essay work.
Main Currents and their exponents
As commented in the section on antecedents of legal realism, where it was pointed out that there are various currents, but for the development of this essay, only three will be analyzed (see diagram No. 1), with this, it does not mean that only the indicated here, but these are considered, due to their degree of importance and relevance.
Scheme No. 1. Currents of legal realism.
Currents of legal realism
Source: Developed during the trial.
Classical legal realism. All the authors agree that it is so called, because it is based on the classical philosophers, as well as on the classical legal thought of the Romans; on the other hand, its main roots are held in philosophical aspects, which corresponds to the conviction that objects have a different existence from the thought of the subject who knows, that such objects are capable of being known, and what they are in themselves themselves, and not what the subject knows about them.
In addition, this current receives this name because it sees law as fair, its main feature is to be a theory of justice and law built from the perspective of the lawyer.
Its main exponents are:
Aristotle. This is the most important exponent of classical realism, which originates from Athens, he is also one of the pioneering thinkers of this realism, whose philosophy influenced this trend considerably.
Thomas Aquinas. The legal philosophy of Saint Thomas was developed around the idea of legal justice received from Aristotle. One of his most important contributions to political thought was the formulation and explanation of his famous definition of the law as "disposition of reason for the common good promulgated by those who take care of the community."
Scandinavian legal realism. This current is called this way, by the Scandinavian thinkers, who had in common their attitude "radical anti-metaphysics", according to them the only reality to which legal phenomena correspond is psychology.
On the other hand, in the Legal Review No. 90 of the UNAM Virtual Legal Library, he points out that this realism:
It is characterized by having a much closer methodological closeness to problems of the legal order, and it also reduces attention to judicial decisions. However, they share the fundamental, by taking an empiricist attitude towards human life, and consequently, towards the law.
As well as its main exponents, the magazine continues to point out that:
The founder of this movement was Axel Hägerström, who along with his disciple A. Vilhelm Lundstedt, and other representatives of this current, such as Karl Olivecrona and Alf Ross, questioned themselves about three basic problems regarding the nature and validity of the law; the significance or insignificance of the elementary conceptions of formalism, and what is characteristic of the notion of justice.
The exponents of Scandinavian realism argue that:
For whom the effectiveness or real validity of legal norms is the determining property, above the merely formal validity and the moral content of the same. What defines the law are not the rules considered in isolation, but the institutions, the system, so the analysis of legal phenomena must be done as a whole.
From the epistemological approach, what these exponents consider is that norms as independent entities do not exist as such, when they speak of norms and obligations, they actually refer to the psychological sensations of people that lead them to feel obligated, for them the legal norms are no longer a mandate of the authority and valuations of justice.
Alf Ross, further specifies the legal norms that are directives that are intended to provoke a certain procedure, in the same sense he maintains that:
The laws are not sanctioned to communicate theoretical truths but to direct the behavior of men (both judges and citizens), so that they act in a certain desired way. A parliament is not an information office, but a central organ of social management.
This exponent considers that the laws are born to direct the behavior of people in society, and that the legislation therefore has a social intention, also considers as a legal norm the directive to the judge and not the directive to the citizen who, in case of non-compliance, gives rise to the directive to the judge.
American legal realism. This trend was born in the United States, and has its base and origin in the transcendence of Oliver Wendell Holmes' legal theory for American realism: "The life of law has not been logic: this has been the experience."
In the Legal Review N ° 90, of the Virtual Legal Library of the UNAM, he points out that: “This phrase of the minister of the Supreme Court of the United States, which identifies law with practical experience, has become the creed of the American realism. "
The magazine goes on to point out that:
Regardless of the empirical methodology of John Locke and David Hume, as well as the pragmatic philosophy of William James and John Dewey, they have been the foundation of American thought and both translate into a realistic attitude towards law.
Analyzing through legal epistemology, what Oliver Wendell Holmes maintains in his theory, is that: Oliver, at no time does he claim to affirm that there is no logic in law, but actually opposing legal formalism.
From a personal point of view, it is considered that this American realism is basically given by the ideology of this nation, followed by a series of very specific issues, such as: historical, social and economic, which to this day continue to characterize it; To support this reasoning, let's see what some legal exponents of this trend, such as Liborio Hierro and Karl Llewellyn, point out in this regard.
Liborio Hierro, in his work "Legal Realism, in Law and Justice", states that they are:
An instrumental conception of law, as a means for social ends; a dynamic vision of society and institutions; distrust of the rules of the traditional legal method; assessment of the rules for their effects; and an approach to law from the perspective of cases and the real problems that arise.
In this regard, Karl Llewellyn, highlights, the conception of law as a reality in motion, as a means for social ends and not as an end in itself; the need to reexamine legal reality to accommodate it to social realities; the methodological separation between being and should be for the purposes of legal research; distrust or skepticism that prescriptive rules or regulations.
Importance of epistemology in the history of legal realism
As already commented in the previous section of the question What is the epistemological approach ?, in that same sense, but more precisely, it can be established as: the person in charge of studying philosophy and knowledge through the response to the three questions seen in the aforementioned paragraph; also the relationship between subject and object, which is the way in which individuals think and solve their problems.
Epistemology in legal realism is the branch of legal philosophy that is responsible for analyzing and explaining the way in which it builds and disseminates knowledge about law, hence its great importance, because it allows us to reflect on the knowledge, the way in which we obtain it and the methods that allow us to validate it.
In the same vein, Aristotle defines what: "It is the science that aims to recognize things in their essence and in their cases".
Personally, the true importance of epistemology in the history of legal realism can be determined, which allows us to understand that our perception of reality is related to the point of view we have about something. Hence, we can talk about different perspectives or different points of view of reality.
New trend of legal realism
Whenever a philosophy of legal realism starts from a good principle, maintaining its base, then the essence of the norm will prevail, in addition the existence of new exponents with specific thoughts, tending to develop a new current, will be originating and accepting.
Now, although the new trend of globalized legal realism seems a bit far-fetched, keep in mind that work has already been done through the phenomenon of legal globalization, where it has been demanding a new paradigm of thought and actions, which has been been expressing and manifesting in various ways in the legal order; In this sense, one can cite the transformations that have occurred in international law; To sustain the aforementioned, I would like to point to international treaties, inter-American conventions; on the other hand, changes in trade, which are what have been giving rise to this new trend.
This trend of the new legal realism is surpassing all the legal barriers existing in all the countries of the world, however difficult they are, and imposing the strongest.
The foregoing brings with it another transformation of the law, also modifying its ends; in this regard Alessandro Pizzorno, points out that:
Increasingly, the norms of international law are moving away from their general impersonal and abstract character that they had for a long time, when they sought to regulate relations between sovereign states with equal rights to protect their governed. Particular norms are now created to protect the interests of the owners of capital, many times overriding the human rights recognized by the same international legal order. These norms, rarely have a superior legal basis that gives them validity, a fact that their promoters do not worry because for them their importance lies in the effectiveness to achieve the ends that are proposed with them.
Held refers in this regard that: “However, three main lines of thought can be identified (see diagram No. 2) that attempt to explain it: that of the globalizers, that of the skeptics and that of the transformers (Held. 2001, XXX -XLI) ”.
Scheme No. 2. Currents of legal realism.
Currents of legal realism
Source: Developed during research, from Held, David, Anthony McGrew.
What could well be considered, as the new current on globalized legal realism, since it conceives Law as a set of instruments that serve the purposes of the countries, and not as a set of means aimed at achieving objectives social. Although there is no really accepted theory, some lines can be seen in this regard, such as those previously seen in diagram No. 2.
Conclusions
Once the essay work has been developed, based on the background of legal realism in its various currents, it is argued that realism is a philosophical current that consists of linking law with social reality, in addition, that it has arisen at different times, according to the current problems and circumstances of each approach.
Of the classic legal realism, it is had that its main root was the one of the most important philosophers of the time; next, Scandinavian legal realism, which passed from philosophers to academics, also did not necessarily have the titles of philosophers; Finally, the American current passed from the philosophy of law to the jurists, who are in charge of administering justice.
According to current times, there are lines of thought that allow me to make my own consideration of what could be a new legal realism focused on legal globalization, based on international treaties and conventions, who change the way of exercising the justice, which are intertwined between the current law of the countries, with the social reality.
In this way, it is intended that this essay serves as a manifesto of a reality that is lived today, with the presumption of new currents, and that there are substantial changes.
References
Bibliographies
- Alf Ross. On law and justice, Trad. Buenos Aires, Argentina, 1963. From Genaro R. Carrió. EUDEBA.Held, David, Anthony McGrew, David Gold blatt and Jonathan Perraton. Global transformations. Politics, economy and culture, translated by Guadalupe Meza Staines. México 2001, Oxford University Press Publishing. Iron, Liborio. Legal realism, in Law and Justice. Iberoamerican Encyclopedia of Philosophy 11. Madrid, Spain, 1996, CSIC / BOE / Trotta.Pizzorno, Alessandro. The legal and state order and globalization, in: Memory, no. 103. Mexico 2006. Wendell Holmes Jr., Oliver. The Common Law, New York, Dover, 1991, "The life of the law has not been logic: it has been experience". Electronic journals. Legal Journal No. 90, THE CONCEPTION OF LAW IN THE CURRENTS OF LEGAL PHILOSOPHY, Bulletin Mexican comparative law,Virtual Legal Library, UNAM.Ricci, Ricardo Teodoro. About an Integrative Epistemology. Chile 1999, Ginta de Moebio Magazine Nº 5 of the month of April, Faculty of Social Sciences, University of Chile. Dictionaries. Royal Spanish Academy. Dictionary of the Spanish Language, Madrid 2011, Editorial Espasa Calpe, SA, Nineteenth Edition. Internet pages. Free Wikipedia encyclopedia, last modified on November 19, 2013, http://es.wikipedia.org/wiki/Realismo_jur% C3% ADdico # cite_note-Hierro-1,.Nineteenth Edition. Internet pages. Free Wikipedia encyclopedia, last modified on November 19, 2013, http://es.wikipedia.org/wiki/Realismo_jur%C3%ADdico#cite_note-Hierro-1,.Nineteenth Edition. Internet pages. Free Wikipedia encyclopedia, last modified on November 19, 2013,
