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American Legal Realism

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The American Realist movement grew during the 1930s from the philosophical views associated with James and Dewey. Both rejected ‘closed systems, pretended absolutes and origins’ and turned towards ‘facts, actions and powers’. The realists studied law on the basis of rejection of ‘myths and preconceived notions’ and on the acceptance of recording accurately things as they are, as contrasted with things as they ought to be. A true science of law demands a study of law in action. ‘Law is as law does’. According to the realists, law consists of a body of generalisations about the conduct of judges or officials. For example Cook treats rules as descriptions of past decisions. He states: “This past behaviour of the judges can be described in terms of certain generalisations which we call rules and principles of law”. Law is, according to the realists jurists, what officials (judges) do; it is not to be found in, and cannot be deduced from, the mere rules by which those officials are guided. An investigation of the unique elements of cases, an awareness of irrational and non-logical factors in judicial decision-making, an assessment of rules of law by an evaluation of their practical consequences- these are some of the characteristics of the realist approach. The main concern of the realist movement was the desire to discover how judicial decisions were reached in reality, which involved a playing down of the role of established rules, or the ‘law in books’, to discover other factors that contributed towards a judicial decision, in order to discover the ‘law in action’. Once the realists had deciphered the factors that lead to judicial decisions, both non-legal and legal, they were concerned with the prediction of future decisions to be made.
American Legal realism is approached from two perspectives; rules scepticism and fact scepticism. Rule sceptics are those who

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