American Realist Movement Essay

1852 Words Mar 13th, 2006 8 Pages
HAS THE AMERICAN REALIST MOVEMENT LEFT ANY SUBSTANTIAL MARK ON JURISPRUDENTIAL THOUGHT?

We must approach this question in consideration of the fact that the American Realist movement never purported to formulate a complete theory of law which could stand alone to tell us what law is. Instead, the basis was that official conduct in dispute settlement in all kinds of dispute was the focal point for the analysis of the law's impact, facilitating the ability to make legal predictions based on expected official action. I think that to measure the impact of this type of thinking on jurisprudential thought, we need to keep in mind how it seeks to differ from other theory.

There are quotations that encompass Realism's ideals very well.
…show more content…
Further, what can be said of precedent if all cases are subject to moral determination whereby a judge can choose between a plethora of precedents and fit them to his facts. Llewelyn has written that legitimate premises for judges are always at least two in each case. Also it may seem unfathomable that we do not live to a rule of recognition, because if the law is solely how judges act in courts, do we not live in that world where we will be alone and die young, a world without order? In fact, it would seem to me that it is at this point that perceptions of realist thought often become distorted. The moderate American Realist does not disregard rules entirely. The realist investigation is actually how far justice can obtain certainty and with how far it is attained through rule and form. The essence for someone like Llewelyn, was to use decisions as the focus of study in order to ascertain the extent that we are governed by pre-decision rules. To my mind, the American Realist movement is the only practicable way of viewing law as something which can encompass command by rules and/or decisions simultaneously. Command in this sense is common acceptance of what is law. Scepticism is not to say non-existence, but it is to say that scarcely (or ‘not ever' for the Realist) would a judge be bound to defer to one particular source in one factual circumstance, but that is not to say that he will not.

As with most

Related Documents