The Theoretical Perspective of Legal Realism

The theoretical perspective of legal realism emphasises what the law is, it reasons that the law can meaningfully instruct people to act in certain social contexts, and for this reason can guide behaviours of those who seek to obey its commands. The theory operates on a premise that it adheres to often by most laymen and many who have legal training where ‘the law’ is concerned with and is intrinsically tied to the real-world outcomes of particular cases. Legal Realism remains influential and has been remarkably successful in changing the terms of legal discourse and in undermining the idea of a self-regulating legal system. Legal realism combines the connection between law and social reality; this would enable judicial decisions by the courts to be more accurate and to promote social reforms. Kalman argues, “that they realists believe that judicial decisions were “idiosyncratic” because they could not be explained as objective applications of pre-existing rules.” (Kalman, 1986) At the same time the theory of realism aims to make law both more predictable and better suited to achieving social goals. The theory goes onto emphasis that the willingness to accept the view on judicial judgements is impossible to generalize because every judge was different and only “the personalities of judges” could explain their decisions.

The scholarly analysis of judging has historically revolved around this central question: how much of judicial decision making depends on legal reasoning? Do judges, after finding the relevant facts of a case consult legal rules and then arrive at their decision? Or is it merely based on facts, legal rules and precedent? The dominant model of judicial decision making is an outgrowth of rational choice theory sta...

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...in statutory law but as a development of socially acceptable actions in an evolving societal context. The verdict handed down reflects this in that it has no minimum sentence, this is in line with the principle that intentional crimes are to be punished more severely than unintentional crimes. The majority further dismissed the proposition that there must be symmetry between all external elements of the offence and the fault elements. This would require that there be a fault element for the consequences of the acts, namely, that the accused’s could foresee death. This would require for the courts to abandon the thin skull rule in R. v. Creighton which has already been previously affirmed in cases of homicide such as R. v. Smithers thus it would not be reasonable to require balance in all cases and would afflict future judgements on such legal issues.

Conclusion: