LWSO 201 Lecture Notes - Legal Realism, Legal Positivism

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Published on 19 Apr 2013
University of Calgary
Law and Society
LWSO 201
Legal Realism
1) Legal Realism
a) Incorporates human agency that legal positivism marginalized or failed to take
into account
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 suicide, abortion.
law is flexible
f) Interdisciplinary
2) Oliver Wendall Holmes
"The life of the law has not been logic it has been experienced"
a) Law is a predictive exercise
b) Rights and duties are also predictions: A duty is a prediction that if a person does
or refrains from doing a certain thing, he will be made to suffer in a certain way
by the courts. Similarly with a right.
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