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Lecture

LWSO 201 Lecture Notes - Legal Realism, Legal Positivism


Department
Law and Society
Course Code
LWSO 201
Professor
Marywyatt Sindlinger

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Legal Realism
1) Legal Realism
a) Incorporates human agency that legal positivism marginalized or failed to take
into account
b) Law is not an object to be empirically studied, nor is it about universal truths
c) Functionalist approach – look at both purpose and effect of the law
d) Sceptical about centrality of rules and about determinacy of the law
e) Sceptical that judicial reasoning is neutral; views it as a judgment and value laden
activity
f) Interdisciplinary
2) Oliver Wendall Holmes
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.
c) It is wrong to consider that the only force at work in the development and
application of the law is logic
d) Judgment always lies underneath the claimed logic of the law a judgment as to
the relative importance of competing legislative values and grounds
e) Judgment is often inarticulate and unconscious
3) Summary of key themes of course to date:
i) Looking at ideas about the law and not absolute answers
ii) Considering “what is law”
iii) Considering the connection between law and morality within the various
theoretic approaches
iv) Considering the role of people within the law