Research On Rule Skepticism In Legal Realism

Legal realism is a movement of great turning significance to legal research in the history of American legal thought.This movement takes criticizing the classical legal formalism as a tool and legal skepticism as a slogan.It aims to destroy the legal research paradigm of legal formalism which is divorced from reality,and advocates to base on reality,pay attention to experience,emphasize the practical function of law,and solve specific legal problems.Legal formalism takes concepts and rules as the core and deductive logic as the method,aiming to achieve the universal formality through the ordering of concepts,so as to obtain absolute certainty.Concept formalism and rule formalism are two forms of legal formalism.The goal of legal formalism is the comprehensiveness of legal procedure,the integrity of legal content,the order of legal concept and the acceptability of legal conclusion.Legal realism subverts the classical legal formalism with the attitude of challenger.Realists take pragmatism as the philosophical basis,anti conceptualism as the thinking mode,act and fact as the center,question the certainty of rules,advocate situational legislation and judicial technology,obtain the certainty of reality,and thus embark on a path of progressive improvement of law.Rule skepticism is the core idea of legal realism,and legal uncertainty is the manifestation of rule skepticism.Rule skepticism is not against the rule itself,but advocates a limited rule theory,which emphasizes the behavior as the center of legal research,and makes up for the rule centered theory’s neglect of reality.Rule skepticism advocates a kind of law as a system,which integrates rules and behaviors and pursues certainty based on practical experience.The certainty of reality includes not only the certainty of the lawyer and the client,but also the certainty of the outsider.The approach of behavior centered theory is helpful to seek such certainty in reality.The pursuit of reality certainty is the way out of rule skepticism,which is mainly manifested in the use of social science methods to study law and restore traditional legal skills.To use social science to study law,we need to regard law as a social science,focus on the facts of behavior in the judiciary,temporarily separate the reality from the ought to be,and at the same time,make sociological analysis of various factors affecting the appeal trial.The tradition of legal skills mainly includes legal method,grand style and situational sense.Legal method involves the performance of legal functions,which is a general description of legal skills;grand style is a macro generalization of the tradition of legal skills under the common law;situational sense is the specific use of legal skills by judges in actual trials.Because the legal skills can only be reflected through the judge’s case judgment,and the immeasurability of the judgment result is also for the case.The certainty of the layman lies in the coincidence of the case judgment and the social custom.Therefore,the sense of situation constitutes the core of the legal skills tradition and the key to the realization of the reality certainty.Rule skepticism has had an important impact on legislative and judicial practice.The unified commercial code and the reform of the way of adjudication advocated by Llewellyn both embodied the spirit of legal realism,especially the rule of skepticism.However,rule skepticism also faces a lot of criticism,which is accused of ethical relativism,misunderstanding the nature of law and the nature of legal science.However,most of the accusations are carried out on the premise of misunderstanding,and the theorists have not made a detailed study of all aspects of the rule skepticism.The rule skepticism advocated by Llewellyn is a kind of moderate skepticism,whose pursuit of legal certainty is a relative and realistic pursuit,and through a series of practical legal skills,the immeasurability of judicial decisions can be greatly improved.Under the label of "rule skepticism",Llewellyn never gave up the pursuit of legal certainty,but analyzed various factors that would affect legal certainty from practical experience.Its attitude based on reality,method of experience and detailed analysis are also of great significance to the legal practice in the transitional period of China.