Aliran Legal Realism
In the United States, empiricism has its own form, namely a school of pragmatism that denies the possibility for people to know the theoretical truth. It is necessary to conduct an examination of ideas in the practice of life. It began in the early nineteenth century, when empirical science and technology strongly dominated the development of American society, and with this development produced intellectual movements that influenced philosophy and social sciences, even logic. It is used to explain and expand knowledge empirically and to find practical solutions to social problems. Such an attitude of pragmatism in the United States is considered realistic. Some philosophers of American legal realism are O.W.Holmes, J. Frank, K.Llewellyn and W. Twining. Their thinking had a great influence in the early twentieth century. In the United States, there has been a movement from a very individualistic form of society to a collective form of society. Moreover, for American legal realism, the most important thing that the law actually deals with. The party who enforces the law is limited to the judge and the parties who are before the courts.
They are the ones who are considered legislators. Therefore, the rules of the law are a generalization of the power of judges. The science of law must be directed by the judge. The influence of the school of fragmentatism in philosophy is strongly felt in the school of legal realism. It is known that at that time (at the beginning of the 20th century) in the world of philosophy, the teachings of this pragmatism developed and adopted by William James and John Dewey, among others. In fact, it can be said that pragmatism is in fact a philosophical basis against the school of legal realism. In the writings of the followers and inspirations of the school of legal realism, such as the writings of D.ari Benjamin Cardozo or Oliver Wendell Holmes, the influence of this doctrine of legal pragmatism becomes very clear. Legal realists do not believe in the positivist and naturalistic kaurn`s approach to the law, who claim in principle that hakirn only applies hukurn made by the authors of the law. In fact, as noted by the Hukurn School of Formalism, legal reasoning is syllogism, where the main premises are Hukurn rules and smaller premises in the form of relevant facts, while the result is a decision of a judge. According to the teachings of legal realism, Allran`s positivism and formalism underestimate the application of the law by judges, the role of hakirn being limited to the application of the law, according to this group, or interpreting most broadly only the law, since there is a rule of law.
On the contrary, according to the school of legal realism, judges do not simply apply or interpret the law. Dalarn many things, when hakirn decides a case, hakirn actually makes a law. Hukurn yAng was made by hakirn and is usually heavily influenced by the political context and feelings of the Hakirn who decided the case. The so-called frank realism is the existence of a similarity on a characteristic negative link, which is skepticism towards conventional legal theory. Skepticism is simulated for a spirit of reform in favour of justice from the Court`s point of view. As far as the logic of law is concerned, legal realists are criticized for the fact that legal realists, especially Joreme Frank, do not see that logic is not a tool for finding things, but a demonstration in which certain conclusions can still be drawn from the premises with logical reasons. As is well known, legal realists oppose drawing legal conclusions using logic through syllogisms. In fact, however, Hukurn realism distinguished between the reason for an opinion and the logic of making a legal decision. Followers of the School of Critical Law also went further than the Hukurn School of Realism in trying to analyze it in a theoretical and social view of legal policy. What he did was analyze the role of the “neutral Hukurn” myth, which legitimized any legal concept, and analyze how the Hukurn sisters transformed social phenomena loaded with political elements into these already politicized operational symbols. It is clear that the School of Critical Jurisprudence categorically rejects the efforts of the teachings of legal realism in relation to the attempts of the School of Legal Realism to reformulate the “element of neutrality” of the right-wing faction.
This relationship between the Hukurn School of Realism and the Sociological School of Law is very unique. On the one hand, some of the foundations of the school of law-sociology have similarities or overlaps, but on the other hand, the two schools are actually opposites in some respects. Roscoe Pound, a follower of the school of sociological jurisprudence, is one of the Aiiran`s critics of legal realism. What is clear, however, as the name suggests, is that the school of legal realism is more topical and has more real agendas than the school of sociological jurisprudence. Hukurn`s school of realism essentially puts forward some of the following theses: The vision of legal realism comes from the view of neopositivism. A point of view that comes from the point of view of positivism, which is based on empiricism and favors scientific science. Figures of positivism such as Jerremy Bentham, John Stuart Mill, Adolf Merkel and John Austin avoid all statements that cannot be explained scientifically. Im XX. A development began in which the idea that knowledge is not an unreliable ilmah led philosophers to look for a way out of the problem of knowledge by examining in depth the content of understanding and language.
This distinguishes the vision of neopositivism from the vision of positivism, in which the vision of neopositivism pays greater attention to the logic and relationships of the age of logic and language. Legal realism looks at the law as a lawyer looks at the law. For a lawyer, the most important thing when you look at the law is how. predict the outcome of a court case and the future of the rule of law. Therefore, in order to accurately predict the outcome of a court decision, a lawyer must also consider previous court decisions in order to then predict future decisions. Critics of the school of legal realism have also been raised against questions about its views on the trial. In this case, criticism is made against normative statements and against the concept of “logic”, while against the emphasis placed on difficult cases by realists. As a school that explores the world of philosophy, it is natural that there are differences of opinion and criticism against the school of legal realism.
In fact, the concepts of this school had become a fairly lively debate among lawyers in the early days of its birth.