Moral realists contradict the principles of natural law. Legal realists argue that these cultures are historical and/or natural concepts and should be approached by a variety of psychological and sociocultural assumptions, with legal concepts perceived as determined by human behavior that should be evaluated empirically, rather than theoretical assumptions about the law. Legal realism is therefore at odds with most versions of legal positivism. Legal realism was largely a response to the legal formalism of the late 19th and early 20th centuries, which became the dominant style for most of the early 20th century. In her negative optimism, she managed to suspect formalistic expectations that judges actually do what they want to say, so that it is always claimed that “we are only realistic now”. Realism, however, has struggled in its positive quest to find a reliable way to anticipate how judges will act, rather than relying on judges` explanations. Realist theory had flourished from the 1920s to the 1940s. Legal realism was completely replaced in the 1950s by the movement of legal processes that viewed law as a process of “reasoned elaboration” and asserted that appeals to “legislative purposes” and other established legal norms could provide an accurate answer to the most anticipated legal questions. The British legal thinker H.H. Hart, in his 1961 book The Concept of Law, began with what other academics saw as a “decisive blow” to legal rationality, questioning the statistical philosophy of law that OW Holmes inherited from other realists. Hart points out that if a law is only a predictor of what the courts will do, a judge assessing the legal facts of a dispute before him is actually thinking, “Why should I resolve this issue?” A statistical method of natural language processing was used to automatically predict the outcome of cases heard by the European Court of Human Rights (violation or non-violation of a particular article) based on their textual content, achieving a prediction accuracy of 79%. [22] A subsequent qualitative analysis of these results provided some support for the theory of legal realism.

The authors write: “In general, and despite the simplified snapshot of a very complex debate we have just presented, our findings could be understood to support the basic legal and realistic intuition that judges respond primarily to non-legal rather than legal reasons when deciding difficult cases.” The law does not always follow the criteria according to which it is properly evaluated. Politics should be honest, but perhaps it is not; he should maintain the greatest good, but sometimes he does not; It must preserve human values, but it can struggle miserably. This is what we would call the principle of moral fallibility. The argument is correct, but it is not the only property of positivism. The difference between these conditional and absolute choices is all that the philosophy of natural law requires to realize the concept of fallibility. It is often argued that positivism offers a more stable view of the fallibility of justice, because when we realize that it is a collective creation, we are less inclined to pay undue tribute to it and more able to indulge in a clear rational evaluation of the rule. Nevertheless, positivism is often more credibly associated with the belief that legal theory is or should be value-neutral. Of course, legal positivism is not an “evaluation of its subject,” that is, an evaluation of menstruation. Thus, the suggestion that the life of law is based on social reality does not force us to believe that it is a positive thing. Of course, there is a context in which each definition is filled with meaning. It selects and systematizes only a portion of the infinite number of facts on its subject. American legal realists believe that jurisprudence is more than the “mechanical” application of well-known legal principles to undisputed findings of fact consistent with arguments of legal formalism.

Some realists believe that one can never be sure that the facts and law identified in the judge`s reasoning were the real reasons for the verdict, while other realists accept that one can often rely on a judge`s motives, but not always. Realists believe that the legal principles that legal formalism treats as unchallenged actually hide controversial political and moral choices. Next, Holmes presents his most important and influential argument, the theory of the “bad man” right: “If we adopt the view of our friend, the evil man, we will find that he cares neither with morality nor with the logic of the law. For the wicked man, “legal duty” means only “a prophecy that if he does certain things, he will face unpleasant consequences of imprisonment or coercive payment.” [10] The villain does not care about legal theorization and only cares about practical consequences. In the spirit of pragmatism, Holmes suggests that this is a useful way to reveal the true meaning of legal concepts. Legal realism is associated with American jurisprudence of the 1920s and 1930s, especially among federal judges[1] and lawyers in the Roosevelt administration. Notable jurists associated with legal realism include Felix Cohen, Morris Cohen, Arthur Corbin, Walter Wheeler Cook, Robert Hale, Wesley Hohfeld, Karl Llewellyn, Underhill Moore, Herman Oliphant, and Warren Seavey,[1] many of whom were associated with Yale Law School. As Keith Bybee argues, “Legal realism has exposed the role of politics in judicial decision-making, challenging conventional efforts to anchor the judiciary on a solid and impartial basis.” [2] Contemporary jurists working in the tradition of law and society have broadened the foundations of legal realism to postulate what has been called the new legal realism.

Although many aspects of legal realism are now considered exaggerated or outdated, most legal theorists would agree that realists have succeeded in their central goal: to refute “formalistic” or “mechanical” notions of law and legal thought. It is now widely accepted that law is not and cannot be an exact science, and that it is important to look at what judges actually do when deciding cases, not just what they say they do. As evidenced by ongoing debates about legal activism and judicial deference, legal scholars continue to disagree on when it is legitimate for judges to “make laws” rather than simply “obey” or “apply” existing law. [20] But few would disagree with the realists` fundamental assertion that judges (for better or worse) are often heavily influenced by their political beliefs, personal values, individual personalities, and other extrajudicial factors. [21] As Hart explains in his theory, this completely ignores the idea that judges use laws to guide their decisions, rather than as evidence to determine their final judgments. Many critics have argued that realists have exaggerated the extent to which the law is “riddled” with loopholes, ambiguities, etc. The fact that most legal questions have simple and clear answers that no lawyer or judge would dispute is difficult to reconcile with the realistic bold arguments about the pervasive legal “vagueness.” Many writers, including Ronald Dworkin and Lon Fuller, have disappointed legal realists for their strenuous efforts to distinguish law from morality.