In the other group, there are the «factual skeptics» whose main interest lies in the hearing of the court (court of first instance). Then, together with the sceptics of the rules, they simulate the importance factor and influence appellate judgments, in which often the opinions of the courts give no clues. The precision and precision of the possibility of formal legislative regulation, the inconsistency of formal legislative regulation will ultimately be impossible due to disagreement on the facts and will never be applied or attempted to predict decisions at the appellate level. Sceptics believe that the search for a sharp increase in legal certainty is therefore aimed more specifically at improving the judicial system. Appellate judges, on the other hand, tend to focus on the most abstract principles of law. That is because, first, they have never met with the litigants. Second, they are not under the same pressure that court judges must act quickly to clarify a case. Third, the decisions they make are often cited by future cases as a precedent to guide them in applying the law, so thorough legal reasoning is needed to prevent injustices in future decisions. For these reasons, I believe I have seen more success in the courts of appeal, where the law favours my side over the facts. A theory of law and legal reasoning that emerged in the early decades of the twentieth century is largely characterized by the assertion that the law can be better understood by focusing on what judges actually do when they rule on cases, rather than what they say they do. [6] The central objective of legal realism was legal formalism: the classical view that judges do not make a law, but apply it mechanically by drawing logically unambiguous legal conclusions from a set of clear, coherent and comprehensive legal rules.
American legal realism has been rightly described as «the most important indigenous jurisprudential movement in the United States during the twentieth century.» [7] The vision of legal realism stems from the vision of neopositivism. A point of view that comes from a positivist point of view based on empiricism and favors scientific science. Positivist figures such as Jerremy Bentham, John Stuart Mill, Adolf Merkel and John Austin avoid language that cannot be explained scientifically. In XX. In the nineteenth century, a development began in which the idea that knowledge is not ilmah, is not trustworthy, led philosophers to look for a way out of the problem of knowledge by examining in depth the content of understanding and language. This distinguishes the vision of neopositivism from the vision of positivism, in which the vision of neopositivism pays greater attention to logic and the relationship between logic and language. Most lawyers (lawyers and prosecutors) are victims of the myth of the Court of Appeal. They are deceived into believing in two mistake collaborations. First, they believe that most of the legal uncertainty is the uncertainty of the law, and if the law is clear, doubts about the upcoming decision will disappear. Second, they consider that all the errors of the lower courts can be corrected by an appeal by the courts of appeal.
In fact, most of the causes of legal certainty are imprecise facts or so-called ignorance. In the United States, empiricism has its own form, which is a school of pragmatism that denies people the opportunity to know the correct theory. It is necessary to conduct an examination of ideas in the practice of life. It began in the early nineteenth century, when empirical science and technology dominated the development of American society, and with this development gave rise to intellectual movements that influenced philosophy and the social sciences, even logic. It serves to explain and expand knowledge empirically and to provide practical solutions to societal problems. Such pragmatic attitudes are considered realistic in the United States. Some philosophers of American legal realism are O.W. Holmes, J. Frank, K. Llewellyn and W.
Twining. Their thinking had a great influence in the early twentieth century, when there was a movement in the United States from a very individualistic form to a collective form of society. Moreover, for American legal realism, the most important thing is what the law actually addresses. The trade unions that have grown in recent years over the past decade have declined sharply in recent years. Merekalah yang dipandang sebagai pembuat hukum. Oleh karenanya kaidah-kaidah hukum merupakan generalisasi dari kekuatan para hakim. Ilmu hukum harus berpedoaman kepada hakim. It has long been said, «A good lawyer knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first.
In my experience, judges rarely make decisions based on particular relationships or preferences for a particular legal counsel or parties. Of course, this is a great generalization and I am sure it happens somewhere in the democratic world from time to time, but I firmly believe that it rarely happens. Judges, while human, regularly strive to be impartial towards individual litigants or criminal defendants. What is happening, however, is that judges, for the sake of «general fairness,» sometimes deviate from the strict application of the law when this does not seem to be «common sense.» Legal realism was primarily a reaction to the legal formalism of the late 19th and early 20th centuries and was the dominant approach for much of the early 20th century. With her negative willingness to challenge formalistic assumptions, she managed to ensure that judges always do what they said, so that it is often said that «we are all realistic now». Realism, however, has failed in its positive quest to find a better way to predict how judges would behave than relying on the reasons given by judges. In contrast, «legal realism» is the concept that the law, as a male, malleable corpus of directives, should be applied creatively and liberally so that the law serves good public order and social interests. Legal realists see the legal world as a means of promoting justice and the protection of human rights.
Legal realists often believe that judges should gradually develop and update the law because, as the closest branch that comes into contact with economic, social and technological realities, they should and can adapt the law accordingly to meet these needs. They often believe that judges should have broad discretion and decide issues on an individual basis because legislators are known to be slow or innate in responding to such pressures for change. Holmes is a prominent figure in American legal thought for many reasons, but what realists have drawn most from Holmes is his famous predictive theory of law, his utilitarian approach to legal reasoning, and his «realist» insistence that judges in deciding cases not simply infer legal conclusions with relentless and mechanical logic. but are influenced by ideas of equity. Public order, prejudice and experience. In the first paragraph of The Common Law, he wrote: The challenge of changing the court`s decision is the inability to foresee a particular thing that the judge or jury believes to be facts.
