legal realism

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Legal realism is a legal theory predicated on the notion that all law derives from prevailing social interests and public policy, as opposed to purely formalistic legal considerations. Legal realism is also thought of as a naturalistic approach to law in that jurisprudence should emulate the methods of natural science; that is, it should rely on empirical evidence and hypotheses that have been tested against the reality of the world, rather than rely on theoretical assumptions about the law. 

According to this theory, judges consider not only abstract rules, but also social interests and public policy when deciding a case. In this respect, legal realism differs from legal formalism. Either theory can be understood in a descriptive way, prescriptive way, or both ways at once.

Oliver Wendell Holmes Jr., one of the towering figures in American legal thought, heavily influenced the formulation of legal realism in American law, particularly with his prediction theory of law which stands for the idea that law should be defined as a prediction, most specifically, a prediction of how the courts behave based on realistic, even moral or biased, considerations. Holmes famously wrote in The Common Law that “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

[Last updated in June of 2023 by the Wex Definitions Team]