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American legal realism

2019-03-29 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- American legal realism,供大家参考学习,这篇论文讨论了美国的法律现实主义。美国法律现实主义是从实用主义法学派渐进发展而来,在霍姆斯大法官的实用主义法学思想奠基的基础上,由众多法学家逐步完善起来的与形式主义法学相对立的法学思想。它以严谨科学的态度和改革批判的精神对美国法学进行了破旧立新,这样一套全新的法学思维范式满足了时代发展的需要,成为美国社会转型时期的官方法学。

American legal realism,美国法律现实主义,essay代写,作业代写,代写

American legal realism comes from the gradual development of pragmatic jurisprudence. On the basis of justice holmes' pragmatic jurisprudence, it is a jurisprudence opposite to formalism jurisprudence, which is gradually improved by many jurists. It with rigorous scientific attitude and critical spirit of American law reform iconoclastic: implementation from "books" to "law" in reality, from the focus on the role of the "rules of the center doctrine" to pay attention to the judge's judicial activity - ", "the judge to make law, so that a new set of thinking paradigm of law to meet the needs of the development of the era, as the period of social transformation of the" official law ".

At the beginning of the last century, America was in a period of "social evolution". With the gradual advance of the second industrial revolution, the imminent threat of the civil war, the formation of monopoly organizations in the United States, and the acceleration of capital accumulation and urbanization, the economic structure within the American society is gradually changing. With the gradual transition from economic "liberalism" to "monopolism", laissez-faire, market centrism and a series of social and political propositions previously held sacred can no longer better cope with the new and increasingly serious social problems. The superstructure around the economic foundation is also brewing a profound ideological trend of change imperceptibly, which is undoubtedly setting off a wave of changes in the legal field.

Born in the ancient city of Boston, holmes entered the harvard law school as a young man. He was not only a pioneer who brought legal realism into the United States, but also the enlightening teacher of numerous legal realism scholars. Holmes's legal realism is derived from his famous "legal empiricism" in the common law. He pointed out that "the life of law is not logic, but experience". In his view, "the purpose of studying law is to predict the extent and extent to which public power affects people through the courts." In this sense, holmes fully interprets the view of "legal instrumentalism", which shows that law is a tool to realize social policies. At the same time, holmes took issue with justices who held to social values and enshrined constitutional and legal principles as the supreme Canon, which he saw as an impediment to progress. In which holmes is the most famous dissident "lok, v. New York" in 1905 cases and reiterated in the dissent after put forward for the freedom of speech and "contract", "judicial restraint problem" and a series of ideas, for the development of the American legal realism and laid a solid ideological foundation to orgasm.

Born in beautiful Seattle, llewellyn, the founder of American realistic law, was sent by his father to study in Germany for three years at the age of 16 because he could not meet the wider learning needs in brooklyn high school. After returning from the study, llewellyn went to the holy land of American law to study legal thoughts again. Undertake holmes pragmatic legal thought of the enlightenment, llewellyn founded the American legal realism, he expounded in the article the thorns from his statement about "what is law", at the same time, created a lot of people misunderstanding and criticism of his legal thoughts, the realism jurisprudence, the next step after paper triggered controversy, famous a launched by llewellyn to pound about method of "ought to" or "reality".

In llewellyn realism legal thought, his first challenge to the traditional "rules of the center doctrine", he thinks "regulation center doctrine thought seemed perfectly concealed defects exist, under the appearance of traditional law thinking around the word is given priority to, the focus is to express the sense of the word, and to express meaning outside of things less attention, sometimes words are not in the rule of law can completely express the meaning of" a behavior. Based on this, puts forward llewelyn words and behavior that are two concepts, not like a mathematical map one to one correspondence, many words is not the behavior of some of the side reaction, llewellyn in the context of the realism jurisprudence - the next step, llewellyn again reiterated his point of view, in its view of formalism represented by Randall law the biggest wrong is placed too much energy on the words and ignored the behavior itself.

As one of the most outstanding judges in the judicial field of the United States, Benjamin cardozo perfectly presents the American legal realism in the judicial field. In Mr Cardoso's view, the benefits of focusing on the practice of justice and getting intuitive legal experience outweigh the benefits of working all day long on the rules of the law. In the nature of the judicial process, he emphasized the judicial pragmatism of social welfare. In this sense, cardozo expounded several methods of judicial practice: logical method, historical method, customary method and sociological method. He thinks that the logical method has its own disadvantages. As an attempt of pure rationality, the logical method sometimes blindly follows the logic in order to cling to the bias of social values, which may lead to unreasonable and even absurd results. Among the above four methods, cardozo particularly advocates the sociological method, which, in his opinion, can accurately and efficiently realize the social value purpose of law -- the realization of social welfare.

The rise and decline of American legal realism is the requirement of the development of law in accordance with The Times, the choice of the historical times, and the self-development of legal thoughts and spirit. The new perspective of jurisprudence contained in it opens the soul of modern jurisprudence. One of the most worthy of our new generation of law people to learn is the realism of the legal school to treat things rigorous and scientific attitude and the spirit of critical absorption, no matter what era, the conclusion is always outdated, but the extract of the ideological essence is the life of our law people need to study and learn the wealth.

Cannot deny whether, if the American legal realism has irreplaceable advantages in many places and the unique significance of it, but at the same time it still has some disadvantages of way of thinking, to generalize the box constrained thinking extension of law, the rule of law scholars too much attention to the facts and ignored the rules exist.

In a word, although American legal realism, once a popular theory of legal thinking, has come to a close in the field of law, its "lingering fragrance" still has a clear impact on the development of modern legal theories and practices.

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