The Application Of Legal Realism In Judicial Decision

Originated in the 20th century, legal realism movement was the most important jurisprudence movement inUnited States. This massive movement not only made a profound historical influence for U.S, but also provide reference for the current judicial practice of China.As the representative of legal realism, Holmes, k. Llewellyn, Cardozo, Frank et were all criticize the formalism. Their ideas were based on pragmatism. As the pioneer of legal realism movement, Holmes proposed the well-known thesis:the life of law doesn't lie in logic, but in experience.Legal Realism agreed that legal is uncertainty. Being in a transitional period, our country has taken profound changes in society. Many new problems are springing up This article discusses the spirit of legal realism and judicial practice in the administration of justice,to solve our country's legal issues, this article consists of six chapters. The first chapter discusses the legal formalism as the background. Legal realism developed with the criticism of formalism.Therefore, to discuss the points of legal realism. we need to elaborate the views of formalism.Chapter II, The representative and the main points of legal realism. Summarize the main points of Legal Realism through sum up Holmes, Cardozo, Frank, Llewellyn's point of view:based on the Pragmatism Philosophy thoughts, advocated that legal should be based on reality, focus on the purpose of the law and oppose the absolute concept theory, holding the idea that legal is uncertainty.On the basis of Legal realism's legal concept, elaborate the judicial practice of legal realism:against the logic syllogism of formalism, regard that the referee is the result of many factors, when the factors conflict, judge should use sociological methods. This part discusses the judicial discretion at last.Chapter III, why we need to use legal realism in judicial decision and use case analysis to Elaborate the type of use. Through discussing the objective existence of legal uncertainty, the difference between legal rules and the reality to discourse the need for realism in the judgment. This chapter use case analysis to describe the use of realism in judicial adjudication.Chapter IV, Legal Realism has the possibility to turn to a wrong use. The application of gal realism need the discretion of the judge. Judges need to take the initiative on the facts of the case and the applicable rules to judge. If the judges can not properly treat the main po(?)ts of the legal realism, there will be a risk of abuse. The more the facts do not conform with the law, the greater the judge's discretion exists. This part analyzes and conpounds the abuse of legal realism.Through some cases the author will try to explain how the wrong use of Legal Realism is.Chapter V, Restrictions and limitations use of legal realism in judicial decision.The fourth chapter concludes that the use of legal realism in judicial decision must be limited. As Cardozo said, he agreed with Sociological methods, but he did not deny the role of other methods. Completely exclude or deny rules is not really realize the value and purpose of the law. The application of legal realism should follow the following constraints: to be carried out within the law; accord with the legislative and the judicial policy; do not contrary to judicial interpretation; follow the principles of due process; based on the facts of the case and so on.The last Chapter, Introduce the new legal realism and conclude the thesis.