Llewellyn's Theoretical Study Of Measurability

For a long time,legal realism has had the image of a "rebel",and it has constantly challenged legal formalism.The so-called legal formalism refers to a judicial methodology,mainly about how judges judge cases and how they should judge cases.From the perspective of legal formalism,the law is fixed and unchanging.In the process of judicial adjudication,judges only need to use the syllogism of reasoning,and apply legal concepts,principles,precedents,and rules to specific case facts intact,and then all social disputes can be resolved.Llewellyn believes that the legal certainty pursued by legal formalism and the view that the result of the judgment can be obtained by using syllogism is unrealistic.In order to be able to break this false theory of legal certainty,Llewellyn proposed the theory of estimability,but he did not use the term "certainty".Instead,he used "evaluability" instead of "certainty"..In fact,Llewellyn did not use the term "evaluability" at will,but deliberately.In his view,"scalability" contains a dynamic judicial orientation,and the realization of this goal does not rely on the deduction of static and literal legal rules,but a dynamic judicial practice.The resources to achieve scalability include the use of grand style,attention to behavior and purpose,attention to the judge's sense of situation,the real reasons on which the judgment is based,and the various influencing factors considered by the judge.Luelin believes that the core of the law is to focus on officials' dispute resolution.The role of legal rules is limited and should not be the focus of jurisprudence research.The focus of jurisprudence should be shifted from rules to behaviors,distinguishing between "Law on Top" and "Law in Action" enhance the subjective role of judges in judicial practice.At the same time,Luelin emphasized that judges should respond to social needs,take the initiative to narrow the distance between law and society,and use multidisciplinary methods to have a more thorough understanding of legal subjects and their behavior.The theory of scalability constructed by Llewellyn is,in the final analysis,a theory of legal certainty,but the way of realizing certainty is very different from legal formalism.The research results on certainty issues in academia are very rich.Pound disclosed the nihility of absolute reality on a deeper level by analyzing and studying the relationship between fact and value.Pound tends to use comprehensive theoretical research methods to communicate traditional schools of law and realist law,focusing on the role of rules,systems and behavioral factors in the entire judicial process,so as to achieve legal certainty.Hart analyzed the certainty of law from the perspective of language analysis,trying to find a balance between legal formalism and realist jurisprudence.In his view,language is an indispensable element of legal rules,but language itself has a core range and ambiguity.In order to make up for the uncertainty in the marginal areas that may be caused by the open language structure,Hart created a set of rules,including primary rules and secondary rules,in order to reduce the uncertainty of judges when trying difficult cases.Dworkin believes that the law is deterministic,and the constituent elements of the law include not only legal rules,but also legal principles.In the process of adjudicating cases,judges may not find suitable legal rules because of the complicated circumstances of the case,but they can still use legal principles to find the only correct answer.