There are four theories of jurisprudential thought in the United States: Natural Law School, Positivist School, Historical School and Legal Realism I think that the majority opinion should demonstrate legal realism as this theory is more applicable to modern life and jurisdiction - Legal Realism introduction. I am sure that reality is always better than positivist and historical approach which simply interpret out-of-day concepts and try to apply them to modern country. Legal realism is jurisprudential thought in the United States which emerged in the middle of the 20th century. The central argument is that law should be made by human beings and, therefore, law is subjected to human imperfections and foibles. (Deflem, 2008)
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Legal realism promotes the claim that law is intermediate and, therefore, it is allowed to made extralegal considerations when solving disputes. It is believed that the results of legal disputes can’t be determined by books and status and I fully agree as even similar disputes should be resolved differently considering all peculiarities, parties involved, etc. all judicial decisions must be specified by judges. Legal realism supports interdisciplinary approach to law and, thus, many realists were deeply interested in anthropological and sociological approaches when studying the nature of the law. (Deflem, 2008)
Furthermore, legal realism believes in legal instrumentalism meaning that law must be used as the only tool in achieving social purposes and in balancing contradictions and social interests. Legal realism is referred to by many laymen and people involved in legal training. Law is tied to the real-world outcomes and, therefore, is closer to empirical approach rather than to hypothetical predictions as historical thought promotes. Legal realism tries to define what the law is instead of considering what the law should be. (Deflem, 2008)
Deflem, M. (2008). Sociology of Law: Visions of a Scholarly Tradition. New York: Cambridge University Press.