Realistic Theory Or Legal Realism

Realistic theory or legal realism

Introduction

In this essay we will analyze the realistic theory or also known as legal realism, we will analyze from its origin, characteristics, principles and objectives, making it clear that this theory considers law not as a set of laws but rather as a set of decisions that make a Judge to solve a problem.

Developing

Realistic theory is a set of philosophical doctrines, that is, a set of ideas, principles and thoughts. Bembibre (2009) states: "A doctrine is a set of teachings, principles or positions based on a system of principles or knowledge" (paragraph 1). Realistic theory not only considers that the law is not formed by statements as equal content on what is mandatory but rather by the rules observed by society or imposed by a state authority, but also sees the right fairly. Velasco (2016) affirms: For legal realism, the fundamental core of law is not the laws, but the facts, effective social behaviors, mainly taking into account the interests, purposes and values ​​that are revealed by the interpreter jurist and by The judge applies to the law in relation to the specific cases and situations presented by real life. (Paragraph 2) Realistic theory opposes the criteria exposed by legal positism and considers that the fundamental center of law is not the laws, they are the facts, it is believed that this theory was especially developed in the twentieth century.

It has several characteristics where they stand out:

• Law intermination: realists often believe that positive law is to say mandatory laws and precedents do not determine true solutions to cases. It is an interdisciplinary approach: several realistic jurists have been interested in statistical, sociological and anthropological studies.
• It is an instrumentalist approach: they believe that the law serves or should serve as an instrument to achieve social purposes. (Valdivia, Fares, 2020) This theory is considered as a basis for others, with this theory emerged several currents of legal realism. Legal guides (s.F.) affirms: "Within legal realism, two large currents, the American and the Scandinavian are forced" (p. 1).
• Classic. – They consider law as a fair something, they sought to be a theory of justice and law, their main exponents were Plato, Tomás de Aquino.
• Scandinavian. – Consider that the only right is the one applied by de facto judges, their exponents were Karl Olivecrona and Alf Ross.
• American. – The right is based on the decisions made by a corresponding judge or officials to solve a problem, its main protagonists are J. Frank and k. N. Llewelyn.

conclusion

The realistic theory considers that the only right is the decision making of a judge to resolve an inconvenience raised between two people or a group of people, personally I do not agree that the right is represented by a single person, I consider that He must be raised on something like our Constitution and that to elaborate it this is based on the decision of several people and not only on one, in this way the decisions of a judge must be based on these laws.

References

• Bembibre, v. (2009). Definition of doctrine . Obtained from ABC definition: https: // www.DEFINITIONABC.com/social/doctrine.PHP
• Legal guides. (s.F.). Legal realism. Obtained from Legal Guides: https: // guiasjuridicas.Wolterskluwer.is/content/document.ASPX?params = h4siaaaaaaeamtmsbf1jtaaaumza3njtbluoon
• Valdivia, Fares. (April 22, 2020). Legal realism [VIDEO]. Youtube. Obtained from https: // www.Youtube.com/watch?V = S4WI1BKXF7U
• Velasco, c. (2016). Legal realism. Obtained from Digital Platform for Law, Social Sciences and Humanities: https: // lawderecho.Org/Realism-Juridico/