At the source of American legal realism
Journal Title: Polish Law Review - Year 2017, Vol 3, Issue 1
Abstract
American legal realism is not very popular in the continental jurisprudence, strongly dominated by legal positivism. The purpose of the paper is to remind the characteristic features of that movement, as they are conceived nowadays. First and foremost it is an attempt at identification its socio-historical sources and intellectual climate which inspired its absolute precursor, justice Olivier Wendell Holmes. Several different characterisations and definitions are outlined, which are only partially overlapping. It seems that the realists have never constructed their own, consistent programme, but were much better at criticising legal positivism and natural law concepts. We may distinguish three generations of realists, who developed their ideas under the influence of two wars (American Civil War and First World War) and the rapidly changing economic and social environment. Holmes represented the first generation and used to be more a practising lawyer than a philosopher. His main thesis included in his papers, speeches and justice’s opinions are further discussed. Especially I emphasise his anti-formalism, pragmatism, instrumental approach to the law and his prediction ontology of law which are rooted in the evolutionary and historical thinking. Even though he preached against formal legal reasoning and legal positivism in general, in several cases he did not avoid applying those criticised legal methods, which gave rise to the unjustified claim, made by some contemporary philosophers, that legal realism was anchored in the positivists’ ontology.<br/><br/>
Authors and Affiliations
Marcin Gorazda
Keywords
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