Donate Child Support Calculator
Skip navigation

Food for thought - Theorists

An intellectual discussion on the theory of law and related theorist

I think there may be something in this research generally

Attachment


Introduction to Extraneous factors in judicial decisions said
Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings.

We test the common caricature of realism that justice is what the judge ate for breakfast in sequential parole decisions made by experienced judges. We record the judges two daily food breaks, which result in segmenting the deliberations of the day into three distinct decision sessions. We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break.

Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

Last edit: by MikeT

Legal Realism is just one interesting concept of law and argument put forward by purveyors of law theory and dwells on the philosophical views of the application of law across many spectrum's and this is just one. Hart argues against criticism of the legal positivist viewpoint for example.

Realists, Contemporary Positivists, Natural Law theory, Critical legal theorists, femalism, realism, positivism, utilitarianism, Internationalism, TWAIL (Third World Approaches to International Law) theory and even Aboriginal law and theory dominate the landscape.  

It is all a fascinating study if you have a lot of spare time.

The Utilitarians Austin and Bentham not only held such superficial viewpoints but juxtaposed law and morality at points so as almost to obfuscate a clear definition in their arguments. Hart says they were also both keen to assert two simple points; that absence of constitutional or legal provisions did not mean the abandonment of a law and that just because a rule might be morally desired that it was a rule of law.  

How then does this view fit with Hart or even modern day law? How does it fit with Legal Realism as described in the article. Any reasonable person would most likely suggest that if a law has to first satisfy a test for compliance with some moral fortitude or standard of moral right then that should not interfere with the core principle, it is a law. (Regardless of what a judicial officer had for lunch)

Harts views on Positivism and his notion of Law were plausible and relatively unchallenged until another scholar Lon Fuller debated the issues and connection of morality and law.

The 1958 debate between the two divides of scholarly thinking has endured in todays modern law world where incidents such as 911, the bombing of the US embassy in 1998 and currently the war on terror are receiving continuous adjustment to laws.

Fuller attacked that view with what is definitely compelling argument. The Positivist view, did not stand well in the debate as Hart passed blame back to the judges in that they did not have to act as they did. Hart argued that officials and citizens should have a positivist view of law would resist tyrannical regimes such as the regime provided under Hitler; but as history tells us we know they didnt and the judiciary did not act at all while millions went to the death camps.

That one of the German positivist thinkers Gustav Radbruch changed his views after the Nazi tyranny had ended and appeals to others to discard any doctrines of law and morals as separate, is significant.   Many cases were handled by German courts after the war with an essential principal of humanitarianism that suggests positivist theories had lost out to a more moderate moral and Natural law view.

What is certain is that legal realism is a very valid view and fjb61 who posted this article might want to elaborate on the differences between the various leanings of law as described  or give their views on the validity or otherwise of the material published.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I actually like the article, the question I pose from the subject, and I think would be good for some discourse surrounding family law issues and judicial decisions, is:

How do we understand the Conflict of Theory-Building and Empiricism?  Family Law (Parenting) is an area in which theories are bandied around consistently. It could easily be considered that the interplay between facts and and theory are intimate. But are they? While work on empirical issues focus on problems which theory is important, the actual theory incorporates new empirical findings that are given meaning by their integration with other findings and theory which already exists. This obviously points to the fact that we will end up having new empirical findings. CW Mills many years ago described this phenomenon as "Abstracted empiricism". So would a judicial determination today be different to a decision of the same judicial authority if they made it some years later? Probably not I'd say, but id love to hear the thoughts of others.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
I disagree with your last statement LP. I recently heard a FM state that they regret some of the decisions they made sometime ago. This was in light of 'new' findings from our usual friends.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
1 guest and 0 members have just viewed this.

Recent Tweets