Essay on "Legal Formalism and Legal Realism"

Essay 4 pages (1260 words) Sources: 2

[EXCERPT] . . . .

Legal Formalism & Legal Realism

There has been a strong debate between the supporters of legal formalism and legal realism for years. The fact that the issue continues to remain an important topic for the public agenda suggests that, as the world changes, nothing becomes more simple, but rather the opposite.

One can not discuss ethics without bringing into discussion Aquinas' conception regarding natural law. According to him, the fundamental principle that should be at the core of all human actions is represented by the natural law. Since the law is natural, that is, deriving from nature, this implies that all the humans understand it and must obey it, pursuing good and avoiding evil.

Furthermore, it is suggested that it is known a priori if a fact is good or evil. In addition, there is a set of rules which guide the behaviour of people in the right direction. Therefore, there is a passage from the moral law to the civil one, that is, the eternal laws are translated into laws which can be applied to specific situations. It is important to underline that in Aquinas' conception, the moral law and the rational nature of humans are considered identical. If people are rational because this is their nature, then acting accordingly to their nature is that what one can define moral.

Another important relation of equality is the one between law and morality. Blackstone, just like Aquinas, believed that this universal law comes from God and therefore it has a divine character. The validity of the human laws derives from their respecting the divine law.

It is very interesting to interpret these concepts when analyzing the different approaches to the application of the law represented by legal formalism and legal realism. According to legal formalism, just like in Aquinas' opinion, it is known a priori whether an action is good or evil. The laws are made in order to be applied as they are, because they have been conceived and formulated in the most appropriate manner. As a consequence, the role of the judges is to merely apply the laws and not to interpret them. Interpreting them should mean imposing a personal view upon a situation which is best described by an already existing law.

If the laws derive from the human nature then the judges should not have any reason in order to modify them (they can not be outside their own nature). Nevertheless, taking into consideration the fact that their duty is to do their best in order to serve the Law, an initiative to interpret the laws might suggest that there is something worth changing or modifying in order to better apply the moral principle.

In addition, one might bring into discussion the relation between Law and Morality. If the works of Aquinas and Blackstone the two concepts could replace one another, it appears that in the contemporary world this synonymy is no longer possible. The truth is that the cases tend to be so different, despite describing similar deeds, that one can do nothing but analyze the circumstances and any other element that might help understand how one can best apply the law while making justice at the same time.

This is where legal realism comes into place. According to this conception, the role of the judges is not to blindly apply the laws, but interpret them in the most appropriate manner in order to respect the Law and protect the human rights and liberties. The fact that it often occurs for the judges to be constrained to interpret the laws might suggest that, while the laws might derive from an universal natural law, this law is not eternal as well. As customs and moral standards change, perhaps so should the judicial rules which govern our… READ MORE

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