Legal Realism in Western Jurisprudence and the Influence of the Philosophy of Postmodernism: A Multidisciplinary Approach
Dr. Abdullah O. Alkholy
Assistant Professor of Civil Law – Faculty of law, King Abdulaziz University – Jeddah – KSA
Abstract:
The poverty of legal formalism has been recognized in the early history of modern legal systems. Since then, legal realism has become on the rise as a dominant force in western jurisprudence, acknowledging the active role of the judiciary in determining the content of the law. The paradigm of legal realism arose as a revolt against the traditional formalist view on the role of the judiciary as limited to the interpretation of the legal text with the sole purpose of discovering the legislative intent.
The core claim of the early realists has been that judge, in most of their practices, had to go beyond the surface of the legal texts to their inner structure to discover the aims and principles that were in the legislature›s mind at the time of the adaptation of the legal text. And according to the later generation of legal realists, when judges do so, they almost always project their own philosophical views or policy preferences on the text rather than interpreting it objectively. Some realists went further to favor such an active role by the judiciary as essential for a functioning legal system. Such progress in the thoughts of legal realism throughout its history reveals that it has been more like a broad label for different judicial philosophies. In fact, jurists of such traditions have been influenced by different philosophical paradigms, of which some have prevailed and declined in the face of new ones.
This article investigates the extent to which postmodernism had its influence on different themes of legal realism, of which some are not entirely free from the basic metaphysical assumptions of legal formalism. The hypothesis to be examined in this article is whether postmodernism has freed legal realism from the remaining influence of these basic metaphysical assumptions.
Keywords: legal realism, postmodernism, formal schools, philosophy of law, interdisciplinary studies, legal sociology, realist schools.