Philosophy

There has long been a tension between traditionalist and realist approaches to defining and interpreting the law indeed, as stated by Altman, There certainly are drawbacks to the rule of law, and they concern the relationship of the rule of law to substantive justice. (2001, p.18) Although no legal model is perfect, and although advocates of traditionalism, legal realism and hybrid approaches all raise certain persuasive points, a review of all of the arguments and the implications of different approaches demonstrates that the best legal paradigm is legal realism as advocated by Bentham. First, legal realism recognizes and accounts for the fact that all judges are fallible human beings.  The traditionalist assumption that judges are able to apply objective rules to a given set of facts dispassionately, thereby arriving at decisions that are both determinate and apolitical, is simply contrary to human nature. An additional feature of legal realism that is superior to traditionalism is its ability to account for social concerns and social welfare in ways that are simply beyond the scope of traditionalist philosophies.  If the law is meant to serve society, and to serve the greatest number of citizens as Bentham advocated, then traditionalism is a flawed legal philosophy.  A third argument in favor of legal-realism is mostly of a socioeconomic nature more particularly, recognizing that laws are often created by and implemented by those with more economic resources than the common citizen, legal realism creates a more democratic type of judicial branch.  The rich and the powerful seem to more frequently avail themselves of the judicial branch than do individuals or businesses with less economic clout.  There is thus a great potential for the judicial process to be abused by the rich and the powerful if a traditionalist approach is followed.  Legal realism also allows judges to resolve legal disputes in a practical way without being unduly constrained by technicalities that may lead to gross injustices. It allows judges to view the competing interests at stake, to consider the implications of a decision on behalf of either competing party, and to employ judicial judgment in such a way as to maintain the legitimacy of the laws being invoked without allowing for unintended results or gross miscarriages of justice.  Finally, the research demonstrates quite clearly that a purely traditional approach is not reflected in judicial decision making and pretending that judges either can or do operate as purely objective analysts is rather disingenuous. In the final analysis, legal realism is superior to traditionalism for several reasons generally speaking, it is a superior legal philosophy because it accounts for human fallibility, it treats society as an important consideration, and it maintains the integrity of the judicial branch.