Law Is An Action

Frank is one of the representatives of the American legal realism. His ideas havea place in the history of American jurisprudence. Frank constructed a theory of legalparticularity against legal formalism. He draws on a wide range of social sciencemethodology. In particular approach on behavioral science and psychology. Approachcombining external and internal approach has created a unique Frank’s theory of legalparticularity. This theory is actually composed of four aspects, namely behaviorism,skepticism,legal positivist methodology and psychology on the approach, pragmatismand legal theory of value on substantive justice.Behaviorism ontological means Frank is concerned the behavior of the judge’sruling, as distinguished from the rules formalism preferences. In the judicial process,there is a large part of the uncertainty, Frank made three theories of skepticism: Rulesskepticism,facts skepticism and legal reasoning skepticism. For a general rule, hedoes not think you can directly guide the specific case of the conclusion. Thisconclusion must be interpreted by a judge, judge-made law is inevitable. For legalfacts, Frank is more skeptical. Legal facts investigated mainly by the trial court, butthe ability of trial judges and the existing judicial system problems make it hard toinvestigate the facts. In legal methodology, Frank advocate distinguishing between is and ought.He use of a psychological approach to resolve the factors behind the judge’sdecision. Meanwhile, he considers idolatrous legal certainty can not be justified, thisis a " children’s dependence on his father." Frank advocates on legal instrumentalism,but it is not a moral nihilist. He has his own quest for justice. This justice is reflectedin each specific case in which, rather than abstract concepts. Behaviorism, skepticism,positivism, pragmatism and substantive justice perspective constitute legalparticularity theory. This theory is based on the operation of the law, for theadministration of justice, legal action by microscopic analysis methods.Frank stressed the special nature of the theory of jurisprudence incur somecriticisms. Some of these criticisms are fair, some are misunderstanding.In addition,Frank’s theory can give us a lot of revelation. The first is that the law is a combinationof rules and facts. Secondly,the uncertainty of legal operation should be recognizedand face.Thirdly, we should learn from the existing achievements of positivism andcross-disciplinary perspective to expand research in the field. Fourth, we shouldconsider pragmatism and substantial justice in legislation. Finally, for jurisprudence,the appropriate distinguish in the research fields is necessary, jurisprudence can bedivided into macro jurisprudence and micro jurisprudence.