1) Legal Realism
a) Incorporates human agency that legal positivism marginalized or failed to take
• Human emotions and experiences play a key role in law.
• Law is part of a larger social construct.
• Law is one of many social constructs and they are always changing
b) Law is not an object to be empirically studied, nor is it about universal truths
• Laws is implemented through people
c) Functionalist approach – look at both purpose and effect of the law
• what law strives to achieve, how it fail and its purpose.
d) Sceptical about centrality of rules and about determinacy of the law
• if you take the rule and apply it to facts you will determine the specific
e) Sceptical that judicial reasoning is neutral; views it as a judgment and value laden
• sceptical of the centrality of the rule
• sceptical that judges are leaving there personal opinions to the court.
• legal realist believe that the outcome of the legal dispute will vary
according to the political, cultural, economic views of the judge.
• law is flexible
• subjectivity of the law. e.g. assisted suic