School of legal realism: search of balance between the certainty of legal rules and judicial discretion

Abstract

The article addresses the conceptual foundations of the establishers of legal realism in determining the role of the judge’s personality in turning verdict and building legal argumentation. While being in search for instruments to overcome the formalism, realists stressed the importance of the personality of a judge in finding justice, precisely through the prism of establishing and analysing the facts in each particular case. The article analyses the ideas of legal realists in defining the role of judicial discretion in terms of establishing facts that shall be duly assessed and according to which it is necessary to choose the legal norm that need to be applied. The article demonstrates the evolution of the approaches of legal realists in the search for a balance between the judge’s adherence to certain norms of written law and giving necessary discretion for the consideration of cases not formally, but through an individual approach to each case, with a detailed analysis of the facts of the case that form it. Realists highlighted the importance of paying attention and analysing the social reality during legal reasoning. According to the position of realists, judges should not analyse cases and resolve the disputes iseolated from the real life, deducing the abstract judgments based on the content of the legal rules. On the contrary, it is extremely important to analyse the social reality where legal rules operate, in order to meet the needs of society that wants to observe in the judge a person who seeks to find justice. The criticism of the position of legal realists was majorly due to the overburdened role of judges and their authority in the entire decision-making process. The analysis of the work of legal realists demonstrates that in the course of the development of the school, its founders did not absolutize the role of the discretionary powers of the judge, but through the prism of this phenomenon, they tried to prove the importance of the personality of the judge, as the one who, during the judicial proceedings, determines which particular facts took place in the occasion under the dispute, and accordingly, which legal norms should be applied to the defined facts.

Keywords

• legal reasoning
• discretion authority
• facts analysis
• legal rule
• empirical approach
• reality