Legal formalism reinforces the concept of predictability while the legal realism negates the element. Under the legal formalism framework, judges are expected to align their decisions with current laws without any alterations. Legal formalism is augmented by the assumption that common law can only be progressive if it is made to follow a specific set of principles, which are drawn from a country’s legal authority. Essentially, the judge’s role in litigation cases was assumed to be solely the interpretation of the law and not analysis (Leitter, 1999). The extended decisions were, therefore, predictable and overlooked the need for the assessment of the environment and circumstances.
Alternatively, Legal realism alluded to the versatility of the prevailing laws. Essentially, the realists were aligned towards the notion that the life of the law was not subject to logic but rather experience. It does not assume a specific formula that is to be used by the judges in solving legal disputes. Instead, the realists believe in the pragmatic notion that environment and influence ought to play a hand in deciding the outcomes which are determined by the judge (Leitter, 1999). Predictability of law application in the formalist school encouraged the implementation of legal principles without change or revision while in the realist frame, it was viewed as a concept which demeaned the efficiency of the decisions which were engaged in the solving of litigation cases. [“Write my essay for me?” Get help here.]
The difference between legal formalism and legal realism concerning predictability shifts the subject matter of analytical jurisprudence from the operation of the law to the changes in the conception of the laws which is intended to cater for creative activity. Essentially, the main theme in the argument is no longer aligned towards the determination of the legal framework in place but rather the changes that are extended to the law with regards to the prevailing environment and circumstance.
No. It is not possible for a legal formalist to also be a positivist. Firstly, legal positivism emphasizes the notion that the existence and elements of the law are influenced by the prevailing social factors in the given society. Under this framework, the law cannot a priori exist on merit. Essentially, the law is not created as a mechanical policy to be applied in its entirety in every related case (Leitter, 1999). Formalism does not support such calls since it predicates that the application of the law should be whole and unrevised. The law should thus be applied to it without the assessment of the environmental and social factors. Essentially, positivism has no conceptual link to formalism as it aims to achieve a less predictable goal with regards to the application of the law. Formalists reflect a conservative stance with regards to the interpretation of the law while positivism, like realism, encourages the assessment of the prevailing social factors before a decision is engaged (Sebok, 1998). [Need an essay writing service? Find help here.]
Yes. It is possible for a legal realist to be a naturalist. This is because both the naturalist framework and realism metric are aligned towards the extension of a realistic picture of the law. Fundamentally, they are both committed to the assertion that all scientifically ratified principal must be empirically assessed to determine their efficiency in a given situation (Sebok, 1998). Based on this notion, a realist, like a naturalist, believes in the progression of philosophy. Therefore, a legal prescript is only viable if it can be structured to reflect the prevailing social and environmental factors. The application of the law should be a subject of versatility.[Click Essay Writer to order your essay]
Leitter, B. (1999). Positivism, Formalism, Realism. Columbia Law Review, 5, 1138-1164.
Sebok, A. (1998). Legal Positivism in American Jurisprudence. New York: Cambridge University Press.