Saturday, August 1, 2009

Legal realists are tacitly legal positivists

When this statement (title) was brought up in class, it surfaced many of the confusions I’d been having in properly understanding the different legal theories.
Legal realism and positivism seem similar since both understand law to be something constructed by man—that there is a definite difference between morality and law. While positivists think that laws come from social norms, realists think that the decisions made are influenced by the judge’s sociological context (the social norms around them). The difference would seem to be that in the positivist’s case, while the laws come from social norms, they are strictly to be applied as they are on the basis of what the text reads. The realists on the other hand, would think that it isn’t just the written law, but other factors play a crucial role in jurisprudence as well, and therefore the decisions made are on the basis on the context.
In taking the context into account, they analyse the cases with respect to things like public opinion and why there might be a reason to go beyond the written law and see what’s right. Here, considering the individual interpretation behind the reasoning for a decision makes the realist’s stance more pragmatic. But, I feel that this tends their argument towards the natural law theory because in going beyond the written law, they are trying to look for what’s actually right. This may not be the same as looking for the purpose of a law and trying to apply that, but why would one go beyond the written law if the decision it proposed didn’t seem right?
P.S: I’m sure they vary, I’m just a bit confused here.

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