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Lecture 21

Philosophy 34-226 Lecture 21: Notes on Legal Realism

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University of Windsor

Lecture 21 on Legal Realism Legal Realism (Holmes & Frank)  Begins 1920-1930s  Great Depression  Use law to create better social means and social ends  Rooted on social facts (Hart)  You can use law to change law and create a different society  You can make the law whatever you want it to be to achieve social ends  thus, utilitarian  Law economic theory and feminist theory Introduction: Legal Realism vs. "Legal Formalism"  Legal formalism (Aquinas)  judges must follow the laws written down, the laws are the solution for all similar cases  The law is nothing but human bias, prejudice, and power according to legal realism Philosophical Influences  Pragmatism  focus on practical function of knowledge o A pragmatist argue the reality is nothing what you want it to be o Knowledge is only knowledge when it is useful o Most interested in knowledge and science  Egoism (psychological egoism)  not philosophical egoism o "I decide what my self-interest, I decide what is right and wrong" o What is right or wrong is what I say it is  Aristotle's Virtue Ethics  Frank (practical wisdom) o A virtue is that by which you can achieve excellence o Habit  you require habit, exercise and practice to achieve excellence o Judges require wisdom, fairness, honest  **these influences might not be connected at all; they each play different roles in legal realism Legal Formalism (Holmes)  Legal realism  Behind the laws is nothing; just like what egoism refers to  For legal realist  what are reasons? Rationalization refers to reason, is an after-thought; doing anything to cover your tail  When judges give reasons, they're not reasons; they are nothing but judges' biases  Unconscious drives the law, not the consciousness  Critic of legal realism  The laws justify the judges' unconscious; it's all about perspective  Frank  "the law is nothing more than what the judge had for breakfast" "Mechanical" View (Frank)  Focuses on procedure (how judges work in different systems)  Judges have no laws to apply Two (sometimes 3) theses: 1. Local Indeterminacy Thesis o Legal terms, principles and values are not sufficient to logically give a unique legal outcome 2. Discretion Thesis o Judges make new law in deciding legal disputes through the exercise of a juridical discretion o Judges actually exercise discretion; has lot of power 3. Legal Instrumentalism o Law should be a tool to realize social purposes and balance competing social interests (not all hold this) o The law is primarily about (positive or negative) social ends (doesn't matter the means are just or unjust) Precedent: "Rule Fetishism"  (Frank)  Fetish mean
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