How Does Legal Realism View Theory? ——Take Llewellyn’s Bramble Bush As An Example

The legal realism movement is the most important jurisprudence movement in the United States in the twentieth century.It has a profound theoretical impact on both legal education and legal science.However,the research on legal realism in my country’s academic circles is not in-depth,and it is accompanied by many misunderstandings.In terms of current related research,the following questions are worth noting:How does legal realism view legal rules?Is legal realism opposed to theory?What is Llewellyn’s theoretical position?Regarding the above-mentioned problems,the academic circles have always had different understandings.This article takes Llewellyn’s views in Bramble Bush as an example,supplemented by a targeted analysis of the content of the debate between Dworkin and Posner,hoping to objectively demonstrate the theoretical position of legal realism.The structure of this article is as follows:The first chapter is the question of this article.This chapter explains what "theory" is and the meaning of "theory",because it is a prerequisite for analyzing the theoretical position of legal realism,and it is also a refutation of the viewpoint that questioned the importance of theory.At the same time,this chapter also makes a targeted combing of Dworkin’ s and Posner’ s controversial views,mainly including theory and practice,law and morality,and hopes to respond to the legal profession’ s rebellion against theory and to better analyze Llewellyn Realist legal thoughts.The second chapter is an in-depth discussion and research of Llewellyn’s realistic legal thoughts in Bramble Bush.Llewellyn constructed his own realistic legal theory based on his keen observation of the changes in American law.His move to include "the judge’s resolution of disputes" in the scope of the law in Bramble Bush has attracted a lot of criticism for himself,but Llewellyn does not intend to define the law,nor is it an answer to the concept of law.Critics also believe that Llewellyn has denied the legal rules and concepts.Although Llewellyn questioned the certainty of the rules,he never advocated giving up the study of legal rules and concepts.He was only trying to clarify the reality of the rules in the judicial system.utility.Llewellyn’s realist legal theory shifts the research center from "words" to "behavior",and also aims to call people to pay attention to reality.Chapter Three explains the theoretical influence of the legal thoughts in Bramble Bush on the later generations.Many schools that emerged after the legal realism movement,such as behavioral jurisprudence and critical jurisprudence,developed on this basis.As the standard bearer of the legal realism movement,Llewellyn’s thoughts and theories have also been widely inherited and developed by later generations.In terms of contribution to the Uniform Commercial Code,no one can match Llewellyn.He tirelessly promoted his realistic legal thoughts to fight against formalism and at the same time ease the contradiction between the stability of positive law and the changing and developing society.Critical jurisprudence inherited the spirit of legal realism,not only implemented the unfinished plan of the legal realism movement,but also surpassed the legal realists.Of course,Llewellyn has also made great contributions to the improvement of the legal education model.The fourth chapter reorganizes the content of the debate between Dworkin and Posner from the perspective of Bramble Bush.Although the debate between the two sides is complicated,the combing of the content of the dispute can help us to understand the legal thoughts contained in Bramble Bush more clearly,and correct Llewellyn’s theoretical attitude.0 n the one hand,it is the differentiation and analysis of legal reasoning viewpoints.Posner advocates a practical method,while Dworkin advocates a theoretical legal reasoning method.The overall goal of this method is to establish a legal and community structure of equality and justice.Compared with the former two,Llewellyn advocates the transformation from "paper rules" to "actual rules" in the process of legal reasoning,which requires the application of law to follow the theory of fairness and justice.It can be seen that in the process of legal reasoning,although Llewellyn advocates to be based on the real world,he does not ignore the value and importance of the theory,and he himself does not oppose the theory.On the other hand,it is an analysis of the position of the theory of truth.Posner put forward two propositions to show his opposition to moral theory,and pointed out that moral theory cannot provide a solid foundation for moral judgment and judges should ignore moral theory.Dworkin countered that no matter how to denigrate moral theory,judges cannot avoid moral controversy.Unlike Posner’s clear-cut anti-ethics theory,Llewellyn was mistaken for the separation of the relationship between law and morality just because he proposed a temporary distinction between "actual" and"ought to".In fact,Llewellyn’s distinction between the two and the analysis of the distinction between what morality should be and what is true in law is not the same thing at all,and he did not oppose the theory of morality.The last is the conclusion of this article.In the process of investigating the realistic thoughts in Bramble Bush,we found that Llewellyn did not deny the legal rules,but to guide people to pay more attention to other legal affairs,not to limit their eyes to the legal rules.Research.Moreover,Llewellyn does not oppose theory.He not only constructs a grand theoretical picture of legal rules,but also often integrates his deep understanding of moral theory into legal practice and legislation.The writing of this article is centered on the question of " how does legal realism view theory",aiming to show the theoretical standpoint of legal realism from the perspective of Bramble Bush and deepen people’s understanding of realism law.