The Discussion And Ebaluation Of Balanced Realism Of Tamanaha

The judicial referee theory is always a controversial thesis in the legal field, American legal scholar Brain Z-Tamanaha puts forward a new kind of way to think. He thinks that American law referred to in the history of scholars "legal formalism era" has never existed and the legal realism is not known as people always know. He thinks that the judicial judgment have to consider two kind of factors, one is the rules of the suspected factors, another is the rules bound factors, and the judicial referee theory ought to concentrate on how to. compromise the two factors. It is called a "balanced realism". Among them, the rules of doubt refers to the knowledge of the limitation and openness of law, this means that sometimes the judge can choose law by his own favor, the judge can make a decision by his own favor,the judge's mood of the day will affect the result of the referee. Rules bounding factors means the content and the procedure to apply the law has a certain binding, the judge can't break the binding to make a wrong decision. Regulations and rules of suspected of mutual checks and balances, make the judicial referee process predictability and forecast. But there are a lot of criticisms, some lawyers believe that Tanamaha had deleted some important chapters or key problems in his theory, many academics put out some negative evidence to refute Tamanaha. This paper will sum up Tamanaha's theory and other scholar's criticism. Finally, this paper can evaluate the academic value of the theory.