Hyunah Yang, Significance of Legal Realism, Here and Now, Law journal, Vol. 32(2) (2022), pp. 57-98.
<Abstract>
This article introduces regal realism arising in the United States in the 1920s and 1930s and discusses its significance in the context of here and now. It introduces legal realism through the skepticism on protecting “the free will” in contract to which the U.S. Court adhered, disbelief in legal formalism, and mechanical jurisprudence. Especially, this study focused on the “fact-finding” process and legal education reform that the legal realists proposed. Based on them, the messages of legal realism are both strong and clear. These are: interpreting law is a process far from mechanical and inevitable application of the law; in the reckoning, not only legal text, but also factual behaviors and social effects, the law has been applied, and needs to be so; Judiciary is a process of creating law since the law is not neutral artifacts but the one always reflecting values and ideologies. This study grasps the essence of legal realism in its empirical attitude toward “fact-finding” and even “subjective dimension” as Jerome Frank argued among others. With this understanding, it applies the “legal realist method” to three subjects: interpreting “will” of the domestic violence victims; ways of reparation of victims of Japanese Military Sexual Slavery; and allocating space for wheel-chair passengers in public transportation. The legal realist method in this article means, most of all, pursuing empirical investigations regarding the matters in question. But it does not stop there. To clarify facts through social- and natural scientific research is indeed critical in the judiciary and legislature. But the core role of the lawyers lies in the judgment of the issue under the law’s ideals and social systems. By empirical research, abstract notions such as “psychological damage,” “not wanting to punish the assailants” and “human right of the disabled” can be translated into concrete notions and words. Legal realism as buried un-refined treasures seems to wait to be dug out, here and now.
<Keywords>
Legal realism, legal formalism, fact-finding, Jerome Frank, empirical research, damage, reparation
Hyunah Yang, Significance of Legal Realism, Here and Now, Law journal, Vol. 32(2) (2022), pp. 57-98.
<Abstract>
This article introduces regal realism arising in the United States in the 1920s and 1930s and discusses its significance in the context of here and now. It introduces legal realism through the skepticism on protecting “the free will” in contract to which the U.S. Court adhered, disbelief in legal formalism, and mechanical jurisprudence. Especially, this study focused on the “fact-finding” process and legal education reform that the legal realists proposed. Based on them, the messages of legal realism are both strong and clear. These are: interpreting law is a process far from mechanical and inevitable application of the law; in the reckoning, not only legal text, but also factual behaviors and social effects, the law has been applied, and needs to be so; Judiciary is a process of creating law since the law is not neutral artifacts but the one always reflecting values and ideologies. This study grasps the essence of legal realism in its empirical attitude toward “fact-finding” and even “subjective dimension” as Jerome Frank argued among others. With this understanding, it applies the “legal realist method” to three subjects: interpreting “will” of the domestic violence victims; ways of reparation of victims of Japanese Military Sexual Slavery; and allocating space for wheel-chair passengers in public transportation. The legal realist method in this article means, most of all, pursuing empirical investigations regarding the matters in question. But it does not stop there. To clarify facts through social- and natural scientific research is indeed critical in the judiciary and legislature. But the core role of the lawyers lies in the judgment of the issue under the law’s ideals and social systems. By empirical research, abstract notions such as “psychological damage,” “not wanting to punish the assailants” and “human right of the disabled” can be translated into concrete notions and words. Legal realism as buried un-refined treasures seems to wait to be dug out, here and now.
<Keywords>
Legal realism, legal formalism, fact-finding, Jerome Frank, empirical research, damage, reparation