The Development And Enlightenment Of American New Legal Realism

At the beginning of the 21st century, American scholarship in law start a movement to focus on the interdisciplinary and empirical legal research method on law which was derived from the university of Wisconsin law school. And the movement triggered a large scale of legal research with enthusiasm. Now the movement is named by people "New Legal Realism". The generation of new realism jurisprudence is not accidental, but a historical inevitability. New problems caused by the rapid development in today’s society have sprung up in various fields. Meanwhile, the traditional legal scholars’conservative and rigid thinking of law cannot respond to the needs of the times. And the theory of new legal realism is put forward to deal with these problems, which contributed to the emergent of the new legal realism.At present, the new trend of the legal thoughts has different variants which can be divided into:the behaviorism, contextualism and institutionalism. Behavioral economics use the principles of cognitive psychology to analysis and explain the human’s behavior. And behavior economics has a difference with neoclassical law and economics. Behavior economics never use a prior theory, namely rational choice theory, to explain the human’s behavior. Contextualism claims that only if we combine the law with the contextual situation we can catch the real meanings of the law. The instituionalists assert that every institution has its internal bias. And the bias will affect the result made by the instThe reason why we call it "new" is in order to make a difference with the legal realism put forward by the Frank and Llewellyn. The new one has a deep relationship with the old one in theory. The new one has inherited the core ideas of the old one. They both adopt the same idea of dichotomy of law which divides the law into "the law in action" and "the law in book". And both of them assert that legal scholarship should focus on "the law in action". In the new legal realists’opinions, "the law in book" is distorted by the factual elements and turned into "the law in action". And then "the law in action" has the real effects on people’s behavior when the law in book is applied to deal with the problems. So for the scholars of new legal realism the real law is "the law in action". It’s meaningful to do legal research on it. Unlike the old legal realism, new legal realism has a wider horizon on the research object. In addition to doing the research on the "law in action", the research object of the new realism law will also focus on the "living law", which has not been enacted or recognized by the legislature. But in real life the "living law" is the rules that can affect people’s behaviors, such as the business principles of economic exchanges, habits and practices.The research methods of the "new legal realism" are more advanced than the methods of "old realism jurisprudence". It insists that we should objectively and neutrally take advantages of the method of interdisciplinary and empirical research to do research on "the law in action" and "the living law". Interdisciplinary research refers to the approach of taking the advantages of the development of other social disciplines, by which we can objectively and scientifically do empirical research on law. New legal realism will analysis the status quo of operation of law and find out the difference between the law in action and the law in book. Then new legal realism can construct an effective institution to complement the defects of law. Of course, the research method of new legal realism sometimes can slide into the pitfalls. If we failed to recognize this, we will not be able to draw the right conclusion. So it’s necessary to face with these pitfalls, which can promote the development of the new legal realism.New legal realism is full of pragmatism, which could response to the problem generated in the society. At present China is undergoing the social transformation. And the social conflicts always happen. Although our nation put forward the slogan of "rule in law" several years ago and the basic system of socialist law has been built, the problems of the society don’t have been solved. Therefore, new legal realism as the new trend in American legal scholarship is meaningful for our development, when we try to crack the difficulties.