North American Legal Realism

North American legal realism

North American legal realism indicates that it has philosophical sources from the mainly legal understanding of Europe in colonial times and now in the United States .This is also integrated by a set of jurist that in the time of the 30s and the first half of the 40 acquired an aggressive and criticism with several of the qualities included in the Common Law legal system. You have to keep in mind the particular position that the United States had at the beginning of the century, a different system was handled in Europe, a judicial regime was used. Judicial Review was that the judge could invalidate the laws he contemplated unconstitutional was very useful

At that time the judge was known as a true body production body, despite this he found himself linked by determinations that other judges would have ruled in advance

Consequently this was a right not established much with general laws as there was in the multiple sentence that the different and diverse courts of justice were promulgated. This method caused 2 huge difficulties the first is linked to justice, as this could make two different results in cases that had a lot of similarity because they would judge in 2 different courts. The second, there was a considerable problem with the investigation of law. To amend this problems, a new analysis system that was a study of paradigmatic chaos in which the general deduction could be removed for a case with this similarity was implemented in higher education.

American legal realism prohibits a legal instruction that existed in advance of the resolution of the courts. By the opposite, the right is distinguished as a prognosis about which the judge will be taken through the sentences .This implies that the judge is subject to a greater situation that can issue the meaning of his failures accordingly

This means that the judge is subject to a lot of circumstances that can determine the meaning of their decisions to the extent that the lawyer may predict what decision will the judge be adopted, that prediction will be the right. However, some authors disagree about the degree of prediction of the judge’s decision, so while Llewelyn understands that the circumstances surrounding the judge, allow to deduce some type of rationalization of the judicial action, Frank considers instead that the personality of the judge, their tastes and preferences, influence an unpredictable way in their behavior.

Therefore, we must be clear about the contribution that to the analysis of bourgeois law the modern that executed the activity of American legal realism, a contribution that by later helped foundations for the elaboration of other movements that followed with the work of analysis of the law and the judicial systemof the United States, begun by realism as a study of law, law and society and legal conscience

North American legal realism occurred in the first half of the 20th century, it covers the emergence of maximum splendor of American legal realism. This realism has thus shown the US jurist team, I do not form a school but they are well distinguished and proclaimed in law

One of the people who has been a pioneer of the realist of North America is Oliver Wendell Holmes having renown in his occupation of his investigations

North American legal realism had great prestige in the United States, this was intended to achieve a liberalizing legal change, it would even be a constitutional reform and other legal types. Therefore some of his factors results in a way of studying the right for all those involved .In addition, it is intuitive for a greater criticism of judges, lawyers, jurist and academic and are motivated to change their own investigations and practice.

1. The Harvard-Principles Law School exponents

The Harvard Law School is an educational institution of world prestige law, is located in Cambridge, Massachusetts of the United States. In addition, it is the school with the greatest antiquity and history of those that remain in constant operation, even having great category exponents regarding their respective subject, we can take Roscoe Pound, Karl Llewellyn, Oliver W. Holmes and/or Benjamin Cardozo. These mentioned above are the main ideological exponents of American legal realism, who have contributed with important ideas in this regard.

1.1. Roscoe Pound

It has been considered throughout history as the founder of sociological jurisprudence, with great influence and importance, as proof of this we can take into account having been dean of Harvard school since 1916 A1936.

‘He guided the jurisprudence of concepts with a pragmatic approach, and raised the controversy of a legal realism’ (Paba, 2018). That is, this exponent considered jurisprudence from a pragmatic point of view, causing controversy related to legal realism.

1.two. Karl Llewellyn

Karl Llwellyn was an important law theologian in the United States and due to his relevant theoretical contributions he has been considered an important representative of the American School of Legal Realism.

Llewelyn and Pound, between 190 and 1932 they discuss publications about legal realism, about rethinking such ideas in order to be more compatible with current legal reality in law.

1.3. Oliver w. Holmes

Oliver w. Holmes, was an important professor, who fulfilled his work at Harvard’s law and at the same time he was a magistrate of the Supreme Court of Justice of the United States of America. He is not also appointing his outstanding works, including ‘The Common Law’. This being this way, one of the most influenced characters in the twentieth century.

Oliver Holmes was a judge who was in favor of the workers, wanted the rights of the proletariatpriority due to labor abuses to which they could be subjected.

Holmes was also a judicial restriction defender. He affirmed that the judges should not get into the decisions taken by the Legislative Power in certain laws, that is, he thought that the judges should not change the laws based on their opinions but in certain norms.

I also thought the concept of law from a social perspective. That is, that the foundation and as a purpose in law is society, that laws must be for social benefit and that the law must adapt to the social situation of the respective era and that therefore, the most important thing in themselves are notits rules if not society.

1.4. Benjamin Cardozo

Benjamin Cardoza was an American Harvard ideologist of the twentieth century, which plates that legal logic is probabilities. Defines legal realism as “a scientific tendency of law, which sets its attention to legal experience, more precisely in human experience’ ’(Morgan). That is, the law must be based on custom or as it says, on experiences, to create legal norms this point must be taken into account.

Main postulates (Anglo -Saxon Law)

Basic foundations and principles

The bases of this right are found in the analysis of judicial sentences, this often causes jurisprudence not only to become the law between the parties, but also the future cases that are submitted to this.

There are judicial interpretations that create new legal figures, this is understood as the exception rule that is responsible for the modifying interpretation of legal norms. These have respected many legal principles recognized as in which there cannot be a crime without prior law.

The ratio decidendi

In Anglo -Saxon law, it is commonTo knowledge.

This phrase has great relevance, since this is a binding nature, so it forces lower courts to apply the criteria mentioned in similar cases to guarantee the uniformity of jurisprudence this is common to find it at the end of judicial decisions.

Differences with other laws: Continental Law

Anglo -Saxon Law is a particular form of law, which depends on jurisprudence and not on the law, has a series of differences with continental law. Among the main differences to highlight we have:

The hierarchy of Fuentes

The main difference lies in the different hierarchy between the various existing sources, the main source of Anglo -Saxon law are judicial decisions which have a binding character, that is, this are mandatory for the judges if they did not use them, they would be attentive against theJurisprudence uniformity.

In continental law it is rather an eminently legal right, as long as it should be noted that the main source is the law.

Multiple judicial criteria

The Anglo -Saxon law system every ruling of a repeated judge in time feels a firm jurisprudential base, although it must guarantee legal certainty in accordance with the sentences of the highest court in the respective country, we must insist that these repeated decisions are not binding.

The judge cannot depart from jurisprudence

In the Anglo -Saxon system the judge cannot depart from the majority jurisprudence that has remained over time, would cause legal insecurity to the justiciables. In the continental system, each judge can resolve the case presented to him in the manner that he considers most convenient or fair, he can depart from the majority jurisprudence (although they must know in a review of their decisions), as long as it can produce a rulingadjusted to law and with foundations that justify that decision.

Regulatory system composed of judicial precedents

It is commonly expressed from different groups of normative systems;However, each country has its own procedure. That is, the same regulations in all countries are not attributable. Therefore, the same activity can present as a crime in the regulatory system of a country and not applicable any sanction according to the other regulatory system.

Normally there is talk of different sets of normative systems;However, each country has its own system. That is, the same regulations in all countries are not attributable. Therefore, the same activity can appear as a crime in the regulatory system of a country and not applicable any sanction according to the normative system of another.

Precedents

The judge who presides over a case distinguishes which precedents are applicable. The precedents of the main courts are related to the lower courts, in order to promote solidity and coherence in the legal justice system.

However, the subaltern courts can choose to correct or deviate from the precedents if the precedents are outdated, or if the current case is fundamentally different from the previous case. The lower courts can also choose to invalidate the precedent, but this is rare.

This by virtue of principles such as equal treatment, legal certainty, legitimate trust and good faith consigned in the administration of justice, since the precedent is appreciated as the reasons of law based on which a judge solves a casepeculiar.

In that order, there are two types of precedent with the effect of associating different, namely:

1. The horizontal, referring to the impossibility, in principle, that an individual or collegiate judge can disintegrate from the ratio decisive set in their own resolutions.
2. The vertical, which involves that the judges cannot be separated from the precedent ordered by their superiors, particularly those of the high courts.

Similarly, the high corporation indicated that the elements that form the precedent, as a rule, are:

1.  The Decisum, also appointed Resolutive Part, which forces the parts of the process.
2. The Ratio Decidendi, which refers to the arguments that keep strict causal link with the determined decision.
3.  The OBITER dictates, that they are the allegations that help the judge to make the decision, but that are not its basis, so they cannot be used as a precedent for other events.

However, despite the binding nature of the precedent, it is necessary.

Direct violation of the Constitution

In the same resolution, the Constitutional Court clarified that the direct violation of the Constitution is a special cause of origin of the action of guardianship against judicial providence and that, therefore, it is self-sufficient.

The cause is formed when the judge in his decision ignores principles or mandates established in the Constitution. That is, when the judicial officer clarifies a rule and applies it by disregarding the mandate of constitutional supremacy.

For this purpose, constitutional jurisprudence has settled the three assumptions in which this cause can be formed:

• When a constitutional provision is stopped.
• When the interpretation carried out by the judge of the norm in the given case is openly unconstitutional.
• When the judge forgets to use the exception of unconstitutionality, provided that it has been due in the process)

The direct violation of the letter differs from the ignorance of the precedent because the axis of violation in the first is the unconstitutional exegesis applied to the specific case, while in the second it is the rupture of the principle of equality, in a peculiar way, by thedifferent applications of the regulations to similar cases.

Conclusion

The aforementioned exponents are American ideologues of Harvard school, all renowned, who have contributed with ideas in the field of law that have been of great importance especially in North American law, ideas based on custom and legal realism

We can say that Anglo -Saxon law is a legal legal system that speaks mainly in the decisions of the organs of the Judiciary of the countries that apply that system and even above the legal norms. Its obligation guarantees the uniformity of the jurisdictional criteria over time unlike the continental system or legal systems, whose basis is the national legal system of the respective country.

To finish the regulatory system, they are norms that apply in any establishment of our society and we must comply with them in any way, since legislative forms are understood here to facilitate good coexistence between ourselves.

The judges must respect the judicial precedents due to principles since the precedents are the reasons why they themselves resolve the cases, the judges can also depart or disconnect from the cases expressing their due reasons, there are several types of precedents and must be appliedIn the cases that each of them require.

There is a high violation in this issue and it is the ignorance of the precedents due to the violation that must be applied to each case, while the equality is not managed individually by the application of different regulations.